13-2017

Chen v. Holder

BIA

Vomacka, IJ

A087 588 353

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 27th 4 day of February, two thousand fifteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 DEBRA ANN LIVINGSTON,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 JIAN MIN CHEN,

14 Petitioner, 

15

16 v. 13-2017

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Keith S. Barnett, New York, NY.

24

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Francis W. Fraser, Senior

27 Litigation Counsel; Timothy B.

28 Stanton, Trial Attorney, Office of

29 Immigration Litigation, Civil

30 Division, United States Department

31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Jian Min Chen, a native and citizen of

6 China, seeks review of an April 23, 2013 order of the BIA,

7 affirming the April 22, 2011 decision of an Immigration

8 Judge (“IJ”), which denied asylum, withholding of removal,

9 and relief under the Convention Against Torture (“CAT”). In

10 re Jian Min Chen, No. A087 588 353 (B.I.A. Apr. 23, 2013),

11 aff’g No. A087 588 353 (Immig. Ct. New York City Apr. 22,

12 2011). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case. 

14 Under the circumstances of this case, we review the

15 IJ’s decision as modified by the BIA. See Xue Hong Yang v.

16 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

17 The applicable standards of review are well established. 

18 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

19 F.3d 510, 513 (2d Cir. 2009). Chen does not challenge the

20 agency’s denial of withholding of removal or CAT relief and

21 has therefore waived review of those determinations. See

22 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.

23 2005). 

2
1 Contrary to Chen’s assertions, the agency did not err

2 in finding that he failed to establish past persecution. 

3 The BIA has defined persecution as a “threat to the life or

4 freedom of, or the infliction of suffering or harm upon,

5 those who differ in a way regarded as offensive.” Matter of

6 Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled,

7 in part, on other grounds by Matter of Mogharrabi, 19 I. &

8 N. Dec. 439 (B.I.A. 1987); accord Ivanishvili v. U.S. Dep’t

9 of Justice, 433 F.3d 332, 340-41 (2d Cir. 2006). A past

10 persecution finding may be based on harm other than threats

11 to life or freedom, including non-life-threatening violence

12 and physical abuse, Beskovic v. Gonzales, 467 F.3d 223, 226

13 n.3 (2d Cir. 2006), but the harm must be sufficiently severe

14 to rise above “mere harassment,” Ivanishvili, 433 F.3d at

15 341. The difference between harassment and persecution is

16 “necessarily one of degree that must be decided on a

17 case-by-case basis.” Id. Here, the agency reasonably

18 determined that Chen’s inability to attend middle school and

19 the repeated harassment he endured did not rise to the level

20 of persecution. Chen was not physically harmed, threatened

21 with violence, prevented from attending his underground

22 church, or precluded from earning a living. While he argues

3
1 that the harassment he endured would prevent a person from

2 practicing their religion in the desired manner, persecution

3 cannot be established on this basis. See generally

4 Ivanishvili, 433 F.3d at 341. 

5 The agency also did not err in finding that Chen failed

6 to demonstrate a well-founded fear of future persecution. 

7 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

8 (observing that, absent “solid support in the record,” a

9 fear of persecution is “speculative at best” (citation

10 omitted)). Chen does not contest the agency’s findings that

11 his fear of persecution was undermined by the fact that his

12 mother has continued attending the family’s underground

13 church in China without harm, that the country conditions

14 evidence reflected a fair amount of underground church

15 activity in his home province of Fujian, and that he did not

16 assert that he would suffer any worse treatment than he had

17 received in the past. He has therefore failed to

18 demonstrate any error in the agency’s well-founded fear

19 determination. See Jian Xing Huang, 421 F.3d at 129; see

20 also Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

21 1999) (finding applicant’s claimed fear of persecution

22 diminished where similarly-situated family members remain in

23 applicant’s native country unharmed). 

4
1 Last, we decline to consider Chen’s challenge to the

2 IJ’s adverse credibility determination, because the BIA did

3 not rely on that determination. See INS v. Bagamasbad, 429

4 U.S. 24, 25 (1976) (“As a general rule courts and agencies

5 are not required to make findings on issues the decision of

6 which is unnecessary to the results they reach.” (citations

7 omitted)). 

8 For the foregoing reasons, the petition for review is

9 DENIED. As we have completed our review, the pending motion

10 for a stay of removal in this petition is DISMISSED as moot.

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, 

13 Clerk of the Court

14

15

5