16-3284

Chen v. Sessions

BIA

Poczter, IJ

A078 729 935

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 TO 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 for 

2 the Second Circuit, held at the Thurgood Marshall United States 

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

20th 4 day of October,two thousand seventeen.

5

6 PRESENT:

7 JON O. NEWMAN,

8 DENNIS JACOBS,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _____________________________________

12

13 YONG LE CHEN,

14 Petitioner,

15

16 v. 16-3284

17 NAC

18 JEFFERSON B. SESSIONS, III,

19 UNITED STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Richard Tarzia, Law Office of 

24 Richard Tarzia, Belle Mead, NJ.

25

26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

27 Attorney General; Leslie McKay, 

28 Senior Litigation Counsel; Aaron D. 

29 Nelson, Trial Attorney, Office of 
2

1 Immigration Litigation, United 

2 States Department of Justice, 

3 Washington, DC.

4

5 UPON DUE CONSIDERATION of this petition for review of a 

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

7 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

8 DENIED.

9 Petitioner Yong Le Chen, a native and citizen of the 

10 People’s Republic of China, seeks review of an August 24, 2016,

11 decision of the BIA affirming a June 30, 2015, decision of an 

12 Immigration Judge (“IJ”) denying Chen’s application for asylum, 

13 withholding of removal, and relief under the Convention Against 

14 Torture (“CAT”). In re Yong Le Chen, No. A 078 729 935 (B.I.A. 

15 Aug. 24, 2016), aff’g No. A 078 729 935 (Immig. Ct. N.Y. City 

16 June 30, 2015). We assume the parties’ familiarity with the 

17 underlying facts and procedural history in this case.

18 We have reviewed the decisions of both the IJ and the BIA. 

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

20 applicable standards of review are well established. See 8 

21 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 

22 513 (2d Cir. 2009).

23 Chen challenges the agency’s determination that his 
3

1 punishment for violating the family planning policy did not 

2 amount to past persecution. “[P]ersecution is the infliction 

3 of suffering or harm upon those who differ on the basis of a 

4 protected statutory ground.” Ivanishvili v. U.S. Dep’t of 

5 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (citations omitted). 

6 It includes “non-physical forms of harm such as the deliberate 

7 imposition of a substantial economic disadvantage.” Mei Fun 

8 Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (internal 

9 quotation marks and citations omitted). 

10 Chen alleged that he was detained for two days and slapped 

11 twice, fined, and fired from his job. The agency was on sound 

12 footing in concluding that, even when viewed cumulatively, this 

13 punishment did not amount to persecution. Poradisova v. 

14 Gonzales, 420 F.3d 70, 79 (2d Cir. 2005) (the agency cannot 

15 consider “the severity of each event in isolation, without 

16 considering its cumulative significance”). The slapping 

17 during detention was not per se persecution. See Jian Qiu 

18 Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) (explaining that 

19 “minor bruising from an altercation with family planning 

20 officials, which required no formal medical attention and had 

21 no lasting physical effect,” did not amount to persecution); 
4

1 Mei Fun Wong, 633 F.3d at 72 (“[P]ersecution is an extreme 

2 concept that does not include every sort of treatment our 

3 society regards as offensive.” (internal quotation marks and 

4 citations omitted)). Nor did Chen demonstrate that the fine 

5 and job loss caused him “substantial economic disadvantage.” 

6 Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d 

7 Cir. 2002). He testified that his wife’s family loaned them 

8 money for the fine, which they repaid within three years, while

9 still making mortgage payments. Chen was also able to obtain 

10 another similar job within two months. Cf. Huo Qiang Chen v. 

11 Holder, 773 F.3d 396, 409 (2d Cir. 2014) (remanding for further 

12 proceedings because applicant testified that he could not earn 

13 enough or obtain a loan to pay a still outstanding fine).

14 Alternatively, Chen claimed to fear future persecution 

15 based on his resistance to the family planning policy. The IJ 

16 rejected this claim, noting that Chen’s wife had lived in China 

17 without incident since their second child was born six years 

18 ago. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

19 1999) (evidence that applicant’s “mother and daughters 

20 continued to live in El Salvador after Melgar emigrated without 

21 harm” undercut well-founded fear of persecution). The agency 
5

1 reasonably concluded that Chen failed to show that he would be 

2 punished a second time for the policy violation. Jian Hui Shao 

3 v. Mukasey, 546 F.3d 138, 148-49 (2d Cir. 2008) (requiring that 

4 applicant show applicable family planning policy, violation of 

5 that policy, and that the violation “would be punished in the 

6 local area in a way that would give rise to an objective fear 

7 of future persecution”). 

8 Chen also claimed a well-founded fear based on his 

9 religious practice. That fear must be objectively reasonable. 

10 Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (“In 

11 the absence of solid support in the record . . . , [the 

12 applicant’s] fear is speculative at best.”). The agency 

13 reasonably determined that, even assuming the police once 

14 looked for Chen four years earlier, the background evidence on 

15 China does not demonstrate that Chen’s fear was objectively 

16 reasonable. The State Department reports explain that China 

17 recognizes only five religions and harasses and detains some

18 religious practitioners; but the reports do not reflect a 

19 nationwide pattern or practice of persecution of Christians. 

20 More importantly, as the IJ noted, reports over the last three 

21 years have not mentioned persecution against Christians in 
6

1 Chen’s native Fujian province. See Jian Hui Shao, 546 F.3d at 

2 142-43, 149, 170 (finding no error in the agency’s requirement 

3 that an applicant demonstrate a well-founded fear of 

4 persecution specific to his or her local area when persecutory 

5 acts vary according to locality).

6 Chen argues that the agency erroneously applied too 

7 stringent a standard to his asylum claim, which requires a 

8 “reasonable possibility of future persecution.” Y.C. v. 

9 Holder, 741 F.3d 324, 332 (2d Cir. 2013). Twice, the IJ wrote 

10 that future harm was not likely, as opposed to not a reasonable 

11 possibility. But the IJ cited the correct standard, referenced 

12 the more generous standard for asylum, and gave no indication 

13 of applying anything more stringent. In any event, the BIA 

14 reviewed de novo the IJ’s determinations that Chen failed to 

15 establish a well-founded fear of persecution, asking only 

16 whether he faced a reasonable possibility of persecution. 

17 Having reasonably found that Chen failed to establish the 

18 less stringent requirements needed for asylum, the agency did 

19 not err in denying withholding of removal or CAT relief. See 

20 Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991).

21 For the foregoing reasons, the petition for review is 
7

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

2 that the Court previously granted in this petition is VACATED, 

3 and any pending motion for a stay of removal in this petition 

4 is DISMISSED as moot. Any pending request for oral argument 

5 in this petition is DENIED in accordance with Federal Rule of 

6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

7 34.1(b).

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk