22-6118

Chen v. Garland

BIA

Palmer, IJ

A206 435 879

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY 

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL. 

At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 22nd day of May, two thousand twentyfour. 

PRESENT: 

REENA RAGGI,

JOSEPH F. BIANCO,

ALISON J. NATHAN,

Circuit Judges. 

_____________________________________ 

JIN CHEN, 

 Petitioner, 

v. 22-6118 

 NAC 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Joshua E. Bardavid, New York, NY. 
2 

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant

Attorney General; Leslie McKay, Senior 

Litigation Counsel; John F. Stanton, Trial 

Attorney, Office of Immigration Litigation, 

United States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED. 

Petitioner Jin Chen, a native and citizen of the People’s Republic of China, 

seeks review of a decision of the BIA, affirming a decision of an Immigration Judge 

(“IJ”), which denied his application for asylum and withholding of removal.1 In 

re Jin Chen, No. A206 435 879 (B.I.A. Feb. 9, 2022), aff’g No. A206 435 879 (Immig. 

Ct. N.Y. City Nov. 29, 2018). We assume the parties’ familiarity with the 

underlying facts and procedural history. 

Under the circumstances, we have reviewed the IJ’s decision as 

supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

2005). We review factual findings for substantial evidence and questions of law 

1 Because Chen does not challenge the BIA’s determination that he waived his 

claim for protection under the Convention Against Torture, we deem that claim 

abandoned. See Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005). 
3 

and application of law to fact de novo. Yanqin Weng v. Holder, 562 F.3d 510, 513 

(2d Cir. 2009). “[T]he administrative findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B). 

I. Past Persecution 

“The burden of proof is on the applicant [for asylum and withholding of 

removal] to establish that . . . race, religion, nationality, membership in a particular 

social group, or political opinion was or will be at least one central reason for 

persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see Quituizaca v. Garland, 

52 F.4th 103, 109–14 (2d Cir. 2022) (holding that the “one central reason” standard 

applies to both asylum and withholding of removal). An applicant must prove 

“a sufficiently strong nexus” between the suffered harm and a protected ground. 

Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010). “Whether the requisite nexus 

exists depends on the views and motives of the persecutor.” Paloka v. Holder, 762 

F.3d 191, 196–97 (2d Cir. 2014) (internal quotation marks and citation omitted). 

An applicant “must provide some evidence . . ., direct or circumstantial” to 

establish the persecutor’s motive. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) 

(emphasis in original). 
4 

Substantial evidence supports the agency’s determination that Chen failed 

to prove a nexus between his beating and arrest and his religion. See Gjolaj v. 

Bureau of Citizenship & Immigr. Servs., 468 F.3d 140, 143 (2d Cir. 2006) (reviewing 

nexus determination for substantial evidence). The only evidence that the police 

were motivated by Chen’s religion was his testimony that, after he fled to the 

United States, his family members told him that the police came to the family’s 

house and told his grandmother to tell him to turn himself in and “confess things 

about the illegal gatherings.” Certified Admin. Record at 115. The agency 

reasonably gave this double-hearsay testimony limited weight because a letter 

from Chen’s grandmother detailing the police visit did not state that the police 

referenced Chen’s church attendance or religion. See Y.C. v. Holder, 741 F.3d 324, 

332 (2d Cir. 2013) (“We generally defer to the agency’s evaluation of the weight to 

be afforded an applicant’s documentary evidence.”). 

While Chen argues that “the only reasonable conclusion from the evidence” 

is that he was targeted because of his religion, the evidence does not compel 

rejecting the agency’s conclusion that Chen could have been arrested for blocking 

the street or participating in an unauthorized protest. Pet’r Br. at 25 (emphasis in 

original). The police may have targeted the protestors and Chen specifically 
5 

because of their religion or membership in a house church, but the record lacks 

any direct evidence of this other than Chen’s account of the police visit, described 

above, to which the agency gave little weight, and “[s]o long as there is a basis in 

the evidence for a challenged inference, we do not question whether a different 

inference was available or more likely.” Siewe v. Gonzales, 480 F.3d 160, 168 (2d 

Cir. 2007). 

Nor are we persuaded that the agency failed to consider the entire record in 

reaching its conclusion about the lack of a nexus. “[W]e presume that [the 

agency] has taken into account all of the evidence before [it], unless the record 

compellingly suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 

336 n.17 (2d Cir. 2006). Here, the record does not compellingly suggest that the 

agency failed to consider aspects of Chen’s testimony about his past harm merely 

because the IJ stated that there was no evidence of Chinese authorities’ motives in 

detaining the leader of Chen’s church and in having Chen and fellow protestors 

beaten and detained. The IJ was emphasizing the lack of direct, probative 

evidence of the authorities’ motivation, which is consistent with having 

considered (but declined to rely on) the circumstantial evidence Chen stresses 

before us.
6 

II. Future Persecution

The agency also did not err in determining that Chen failed to establish a 

pattern or practice of persecution of similarly situated Christian house church 

members. First, Chen argues that the IJ committed reversible error by not 

considering whether there was a pattern or practice of persecution of Christians. 

But to the extent Chen raised a pattern-or-practice argument, the IJ addressed it, 

finding that Chen’s country conditions evidence was insufficient to establish an 

objectively reasonable fear of future persecution. Accordingly, we find Chen’s 

procedural argument unpersuasive. 

Further, even assuming that the IJ did not address a pattern-or-practice 

argument raised by Chen, the BIA did. Chen argues that the BIA engaged in 

impermissible factfinding in addressing this argument, rather than remanding to 

the IJ. But the BIA does not run afoul of its regulations when “bas[ing] its 

decision on facts already in the record.” Xian Tuan Ye v. Dep’t of Homeland Sec., 

446 F.3d 289, 296 (2d Cir. 2006). Here, the IJ found that persecution of Christians 

varied by location and that there was no country conditions evidence of 

persecution in Changle City, Fujian Province where Chen lived. Given these 

findings, the BIA did not engage in impermissible factfinding in concluding that 
7 

the country conditions evidence did not show sufficiently widespread 

persecution. See id.; see also Jian Liang v. Garland, 10 F.4th 106, 117 (2d Cir. 2021) 

(upholding denial of pattern or practice claim of persecution of Christians where 

“the IJ found that none of [petitioner’s] evidence speaks to persecution occurring 

in . . . Fujian”). 

Because Chen did not meet his burden of demonstrating an objectively 

reasonable fear of persecution for asylum, he “necessarily” did not meet the higher 

standard for withholding of removal. Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 

2010). 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court