1 

13-1239 

Chen v. Lynch 

BIA 

Hom, IJ 

A087 785 377 

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 ASUMMARY ORDER@). A PARTY CITING 

TO 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 Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 16th day of July, two thousand fifteen. 

PRESENT: 

DEBRA ANN LIVINGSTON,

SUSAN L. CARNEY, 

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________ 

CHANGJIAN CHEN, 

 Petitioner, 

v. 13-1239 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL,*

 Respondent. 

_____________________________________ 

 

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 

Attorney General Loretta E. Lynch is automatically substituted 

for former Attorney General Eric H. Holder, Jr., as the 

Respondent in this case.
2 

FOR PETITIONER: Changjian Chen, Pro Se, 

Flushing, NY

FOR RESPONDENT: Joyce R. Branda, Acting 

Assistant Attorney General; 

Emily Anne Radford, Assistant 

Director; Jesse D. Lorenz, Trial 

Attorney, Office of Immigration 

Litigation, 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 DISMISSED in part and DENIED in part. 

 Petitioner Changjian Chen, a native and citizen of the 

People’s Republic of China, seeks review of a March 12, 

2013, decision of the BIA, affirming the November 10, 2011, 

decision of an Immigration Judge (“IJ”), denying his 

application for asylum, withholding of removal, and relief 

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

Changjian Chen, No. A087 785 377 (B.I.A. Mar. 12, 2013), 

aff’g No. A087 785 377 (Immig. Ct. N.Y. City Nov. 10, 

2011). We assume the parties’ familiarity with the 

underlying facts and procedural history in this case. 
3 

 Under the circumstances of this case, we have reviewed 

both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 

514 F.3d 233, 237 (2d Cir. 2008) (per curiam). The 

applicable standards of review are well established. See 8 

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

510, 513 (2d Cir. 2009). 

 The petition raises three issues: (1) whether the IJ 

abused his discretion in refusing to accept Chen’s evidence 

submitted after the filing deadline; (2) whether the IJ 

committed constitutional or legal error in pretermitting 

Chen’s asylum application as untimely; and (3) whether the 

IJ erred in finding that Chen did not establish either past 

persecution or a likelihood of future persecution. We 

dismiss the petition as to Chen’s claim for asylum. We 

deny the petition as to all other matters. 

I. Rejection of Late Documents 

Under 8 C.F.R. § 1003.31(c), an IJ may set a deadline 

for the submission of documents, and after the deadline, 

may deem the opportunity to file them waived. The IJ 

“retains the authority to determine how to treat an 

untimely filing.” Imm. Ct. Pract. Man. Ch.3(d)(ii). We 
4 

review an IJ’s rejection of documents as untimely for abuse 

of discretion. Dedji v. Mukasey, 525 F.3d 187, 191 (2d 

Cir. 2008). An IJ may depart from a deadline when an alien 

demonstrates both good cause for a departure and a 

likelihood of substantial prejudice from enforcement of the 

deadline. Id. at 192. 

On April 7, 2010, the IJ set the filing deadline as 

March 1, 2011, giving Chen almost one year to submit 

documents. Chen submitted a number of documents pertaining 

to his date of entry into the United States and his past 

persecution one day after the deadline. Chen then 

submitted additional documents weeks later, purportedly 

because he had been waiting for his mother’s letter to 

arrive from China. The IJ did not abuse his discretion in 

rejecting these late documents. Chen was represented by 

counsel, had nearly a year to gather evidence prior to the 

deadline, and did not request an extension or explain in 

advance that the submissions would be late. See Dedji, 525 

F.3d at 192. 
5 

II. Untimely Asylum Application 

Pursuant to 8 U.S.C. §§ 1158(a)(3) and 1252(a)(2)(D), 

our jurisdiction to review the agency’s determination that 

an asylum application was untimely is limited to 

“constitutional claims or questions of law.” Chen raises 

no reviewable claims. He argues that the IJ erred when he 

discounted testimony that Chen witnessed the exit stamp 

being placed in his passport in November 2008, but this 

argument goes to the weight to be afforded the passport, 

and does not present a question of law. Because Chen 

contests only the weight the IJ gave to his passport, he 

raises a factual issue this Court lacks jurisdiction to 

review. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 

315, 328-29, 332 (2d Cir. 2006). 

III. Withholding of Removal 

To establish eligibility for withholding of removal, an 

applicant must show that he will likely be persecuted if 

returned to his country. 8 U.S.C. § 1231(b)(3)(A); 8 

C.F.R. § 1208.16(b)(1), (2). If the applicant is found to 

have suffered past persecution, it is presumed that there 

is a likelihood of future persecution on that basis. 8 
6 

C.F.R. § 1208.16(b)(1). Absent past persecution, to 

establish an independent fear of persecution, an applicant 

must show that he subjectively fears persecution and that 

this fear is objectively reasonable. Ramsameachire v. 

Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). 

 As Chen argues, the agency failed to consider all of 

his testimony when considering whether he had established 

past persecution. The IJ noted that Chen testified that he 

was arrested during a religious service in his home, 

detained for three days, forced to pay a fine, and required 

to report monthly to the police. However, the IJ did not 

reference an earlier incident in which Chen was detained 

for five hours for distributing material promoting 

Christianity, or that he was unable to enroll in college 

due to the three-day detention for participation in an 

illegal activity. As a result, the agency may not have 

considered Chen’s past harm in the aggregate. See

Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005); 

Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004). 

Furthermore, we have concluded that physical mistreatment—

the main focus of the agency’s determination—is not 
7 

dispositive of whether persecution has occurred. See Guan 

Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d 

Cir. 2002). 

 However, even if all incidents are considered, Chen was 

detained only for brief periods, was never physically 

abused, and did not establish that he suffered a serious, 

“non-physical form[] of harm such as ‘the deliberate 

imposition of a substantial economic disadvantage.’” 

Ivanishvili, 433 F.3d at 341 (quoting Guan Shan Liao, 293 

F.3d at 67). The IJ explicitly considered the more severe 

incidents of mistreatment and omitted discussion only of 

Chen’s five-hour detention and inability to enroll in 

college. While the agency’s decision is not without error, 

we are “not required to remand where there is no realistic 

possibility that, absent the errors, the IJ or BIA would 

have reached a different conclusion.” Alam v. Gonzales, 

438 F.3d 184, 187-88 (2d Cir. 2006). 

 Chen also argues that he established an independent 

fear of future persecution on the basis of his religious 

practice in the United States. In the absence of past 

persecution, he was required to show a reasonable 
8 

possibility that “authorities . . . are either aware of his 

activities or are likely to become aware of his 

activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 

(2d Cir. 2008). An alien may make this showing either by 

offering evidence that “‘he or she would be singled out 

individually for persecution’” or that “proves the 

existence of ‘a pattern or practice in his or her country . 

. . of persecution of a group of persons similarly situated 

to the applicant.’” Kyaw Zwar Tun v. INS, 445 F.3d 554, 

564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)). 

The IJ reasonably concluded that Chen failed to 

demonstrate a pattern or practice of persecution of 

Christians who attend unregistered churches. Jian Xing 

Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). Chen 

submitted no evidence of such persecution because he 

submitted no evidence of country conditions. Absent any 

such evidence in the record, the IJ did not err in finding 

that Chen failed to meet his burden of proof. 

For the foregoing reasons, the petition for review is 

DISMISSED at to Chen’s asylum claim and DENIED as to all 

other claims. As we have completed our review, any stay of 
9 

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 Rule34.1(b). 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk