09-3712-ag

Chen v. Holder

BIA

Nelson, IJ

A098 291 905

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 Daniel Patrick Moynihan

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

New York, on the 25th day of October, two thousand ten.

PRESENT:

GUIDO CALABRESI,

REENA RAGGI,

PETER W. HALL,

 Circuit Judges.

_______________________________________

CAISHEN CHEN,

Petitioner, 

 v. 09-3712-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Jan Allen Reiner, New York, New

York.
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FOR RESPONDENT: Tony West, Assistant Attorney

General, Emily Anne Radford,

Assistant Director, Craig A. Newell,

Jr., Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.

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 Caishen Chen, a native and citizen of China,

seeks review of the August 3, 2009, order of the BIA,

affirming the November 30, 2007, decision of Immigration

Judge (“IJ”) Barbara A. Nelson denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Caishen Chen, No.

A098 291 905 (B.I.A. Aug. 3, 2009), aff’g No. A098 291 905

(Immig. Ct. N.Y. City Nov. 30, 2007). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we review the

decision of the IJ as supplemented by the BIA. See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

applicable standards of review are well-established. See 8

U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95

(2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110

(2d Cir. 2008).

 The BIA correctly found that Chen was ineligible for

relief based solely on his wife’s forced sterilization. See

Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10

(2d Cir. 2007); Matter of J-S-, 24 I & N Dec. 520 (A.G.

2008); see also Matter of S-L-L-, 24 I & N Dec. 1 (BIA

2006). Contrary to Chen’s argument, the BIA did not err in

its application of law because, as a general rule, the BIA

applies the law in effect at the time it enters its

decision. See 8 C.F.R. § 1003.1(d)(3)(ii) (BIA has

authority on appeal to review questions of law de novo); cf.

NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir.

1995) (“Appellate courts ordinarily apply the law in effect

at the time of the appellate decision.”)(internal quotation

marks omitted). Moreover, the agency reasonably found that,

even assuming Chen’s credibility and that he had resisted

China’s family planning policy by engaging in an altercation

with family planning officials as he was trying to see his

wife who had been brought in for an abortion, the harm he

suffered during that confrontation with family planning

officials did not rise to the level of persecution. See

Beskovic v. Gonzales, 467 F.3d 223, 225-26 (2d Cir. 2006);

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341-42

(2d Cir. 2006). 
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The BIA also observed that Chen did not present

sufficient evidence to demonstrate that he had a wellfounded fear of future persecution based on any

“resistance.” However, as the government argues, in its

opening brief before us, Chen does not challenge that

finding. Additionally, Chen does not challenge the agency’s

denial of his application for withholding of removal and CAT

relief.

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk