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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 27 th** **day of February, two thousand fifteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **DEBRA ANN LIVINGSTON,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **JIAN MIN CHEN,** 13 Petitioner**,** 14 15 **v. 13-2017** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Keith S. Barnett, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 25 **General; Francis W. Fraser, Senior** 26 **Litigation Counsel; Timothy B.** 27 **Stanton, Trial Attorney, Office of** 28 **Immigration Litigation, Civil** 29 **Division, United States Department** 30 **of Justice, Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Jian Min Chen, a native and citizen of 5 China, seeks review of an April 23, 2013 order of the BIA, 6 affirming the April 22, 2011 decision of an Immigration 7 Judge (“IJ”), which denied asylum, withholding of removal, 8 and relief under the Convention Against Torture (“CAT”). In 9 re Jian Min Chen , No. A087 588 353 (B.I.A. Apr. 23, 2013), 10 aff’gNo. A087 588 353 (Immig. Ct. New York City Apr. 22, 11 2011). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 Under the circumstances of this case, we review the 14 IJ’s decision as modified by the BIA. See Xue Hong Yang v. 15 U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 16 The applicable standards of review are well established. 17
See 8 U.S.C. § 1252(b)(4)(B);Yanqin Weng v. Holder, 562 18 F.3d 510, 513 (2d Cir. 2009). Chen does not challenge the 19 agency’s denial of withholding of removal or CAT relief and 20 has therefore waived review of those determinations. See 21 Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 22 2005). 23 2Contrary to Chen’s assertions, the agency did not err 1 in finding that he failed to establish past persecution. 2 The BIA has defined persecution as a “threat to the life or 3 freedom of, or the infliction of suffering or harm upon, 4 those who differ in a way regarded as offensive.” Matter of 5

Acosta , 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled, 6 in part, on other grounds by Matter of Mogharrabi , 19 I. & 7 N. Dec. 439 (B.I.A. 1987);accord Ivanishvili v. U.S. Dep’t 8 of Justice , 433 F.3d 332, 340-41 (2d Cir. 2006). A past 9 persecution finding may be based on harm other than threats 10 to life or freedom, including non-life-threatening violence 11 and physical abuse,Beskovic v. Gonzales , 467 F.3d 223, 226 12 n.3 (2d Cir. 2006), but the harm must be sufficiently severe 13 to rise above “mere harassment,” Ivanishvili , 433 F.3d at 14 341. The difference between harassment and persecution is 15 “necessarily one of degree that must be decided on a 16 case-by-case basis.” Id.Here, the agency reasonably 17 determined that Chen’s inability to attend middle school and 18 the repeated harassment he endured did not rise to the level 19 of persecution. Chen was not physically harmed, threatened 20 with violence, prevented from attending his underground 21 church, or precluded from earning a living. While he argues 22

3that the harassment he endured would prevent a person from 1 practicing their religion in the desired manner, persecution 2 cannot be established on this basis.See generally 3 Ivanishvili , 433 F.3d at 341. 4 The agency also did not err in finding that Chen failed 5 to demonstrate a well-founded fear of future persecution. 6 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) 7 (observing that, absent “solid support in the record,” a 8 fear of persecution is “speculative at best” (citation 9 omitted)). Chen does not contest the agency’s findings that 10 his fear of persecution was undermined by the fact that his 11 mother has continued attending the family’s underground 12 church in China without harm, that the country conditions 13 evidence reflected a fair amount of underground church 14 activity in his home province of Fujian, and that he did not 15 assert that he would suffer any worse treatment than he had 16 received in the past. He has therefore failed to 17 demonstrate any error in the agency’s well-founded fear 18 determination. See Jian Xing Huang, 421 F.3d at 129; see 19 also Melgar de Torres v. Reno , 191 F.3d 307, 313 (2d Cir. 20 1999) (finding applicant’s claimed fear of persecution 21 diminished where similarly-situated family members remain in 22 applicant’s native country unharmed). 23
4Last, we decline to consider Chen’s challenge to the 1 IJ’s adverse credibility determination, because the BIA did 2 not rely on that determination. See INS v. Bagamasbad , 429 3 U.S. 24, 25 (1976) (“As a general rule courts and agencies 4 are not required to make findings on issues the decision of 5 which is unnecessary to the results they reach.” (citations 6 omitted)). 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, the pending motion 9 for a stay of removal in this petition is DISMISSED as moot. 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of the Court 13 14 15

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