09-3209-ag

Chen v. Holder

BIA

Bukszpan, IJ

A078 853 858

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 11 day of March, two thousand ten. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 JOSEPH M. McLAUGHLIN,

10 GERARD E. LYNCH,

11 Circuit Judges.

12 _______________________________________

13

14 QI HAI CHEN, AKA JAMES CHAN,

15 Petitioner,

16

17 v. 09-3209-ag

18 NAC

19 ERIC H. HOLDER, JR., ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General, Carl H. McIntyre, Jr.,

27 Assistant Director, Francis W.

28 Fraser, Senior Litigation Counsel,

29 Office of Immigration Litigation,

30 Civil Division, United States

31 Department of Justice, Washington,

32 D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Qi Hai Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a June 29, 2009,

7 order of the BIA, affirming the September 11, 2007, decision

8 of Immigration Judge (“IJ”) Joanna Miller Bukszpan, denying

9 his application for asylum, withholding of removal, and

10 relief under the Convention Against Torture (“CAT”). In re

11 Qi Hai Chen, No. A078 853 858 (B.I.A. June 29, 2009), aff’g

12 No. A078 853 858 (Immig. Ct. N.Y. City Sep. 11, 2007). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history of the case.

15 In challenging the agency’s denial of his asylum and

16 withholding of removal claims, Chen argues that he

17 demonstrated the requisite nexus to a protected ground by

18 showing his political opposition to police corruption. 

19 However, Chen made no such argument on appeal to the BIA,

20 arguing only that he established a nexus based on the

21 economic persecution he suffered at the hands of local

22 thugs. Because the Government has raised this failure to
3

1 exhaust in its brief, we decline to consider Chen’s

2 unexhausted arguments. See Lin Zhong v. U.S. Dep’t of

3 Justice, 480 F.3d 104, 124 (2d Cir. 2007) (describing the

4 issue exhaustion requirement as an “affirmative defense

5 subject to waiver”). Chen’s failure to exhaust his nexus

6 claim is dispositive of his challenge to the agency’s denial

7 of his applications for asylum and withholding of removal

8 because he has abandoned any claim based on his fear of

9 thugs. See 8 U.S.C. § 1101(a)(42); 8 C.F.R. 

10 §§ 1208.13(b)(1), 1208.16(b)(1).

11 With respect to Chen’s CAT claim, we find no error in

12 the BIA’s finding that Chen “has not demonstrated that it is

13 more likely than not that he will be tortured if removed to

14 China.” We review such agency findings of fact under the

15 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);

16 see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d

17 281, 289 (2d Cir. 2007). Chen argues that he will be

18 tortured for leaving China illegally. However, Chen does

19 not challenge the IJ’s finding, which in any event was not

20 clearly erroneous, that he had not established that he left

21 China illegally. In any event, it is well established that

22 evidence that some individuals who left China illegally are
4

1 imprisoned, and that torture occurs in Chinese prisons, is

2 insufficient to establish that it is more likely than not

3 that a particular illegal emigrant will be tortured if

4 returned to China. Mu Xiang Lin v. U.S. Dep’t of Justice,

5 432 F.3d 156, 159-60 (2d Cir. 2005); Mu-Xing Wang v.

6 Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 2003). Thus, the

7 BIA did not err in finding Chen’s proffered evidence that

8 some individuals from his hometown were tortured after

9 returning to China insufficient to meet his burden under the

10 CAT.

11 For the foregoing reasons, the petition for review is

12 DENIED. As we have completed our review, any stay of

13 removal that the Court previously granted in this petition

14 is VACATED, and any pending motion for a stay of removal in

15 this petition is DISMISSED as moot. Any pending request for

16 oral argument in this petition is DENIED in accordance with

17 Federal Rule of Appellate Procedure 34(a)(2), and Second

18 Circuit Local Rule 34.1(b).

19

20 FOR THE COURT:

21 Catherine O’Hagan Wolfe, Clerk

22

23

24