    10-2758-ag
    Chen v. Holder
                                                                                  BIA
                                                                          Van Wyke, IJ
                                                                          A073 190 139


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 22nd day of September, two thousand eleven.

    PRESENT:
             JON O. NEWMAN,
             ROBERT A. KATZMANN,
             GERARD E. LYNCH,
                 Circuit Judges.
    ______________________________________
    WEN GUANG CHEN,
             Petitioner,
                     v.                                    10-2758-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL, UNITED STATES
    DEPARTMENT OF JUSTICE,
             Respondents.
    ______________________________________
    FOR PETITIONER:         Wen Guang Chen, pro se, Brooklyn, N.Y.

    FOR RESPONDENTS:        Tony West, Assistant Attorney General;
                            Richard M. Evans, Assistant Director;
                            Jeffrey J. Bernstein, 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

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

      Petitioner Wen Guang Chen, a native and citizen of

China, seeks review of a June 17, 2010 order of the BIA

affirming the August 13, 2008 decision of Immigration Judge

(“IJ”) William P. Van Wyke denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).   In re Wen Guang Chen,

No. A073 190 139 (B.I.A. June 17, 2010), aff’g No. A073 190

139   (Immig. Ct. N.Y. City Aug. 13, 2008).   We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

      Under the circumstances of this case, we review the

IJ’s decision as supplemented by the BIA’s decision.     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); Jian Hui Shao v. Mukasey, 546 F.3d

138, 157-68 (2d Cir. 2008); Salimatou Bah v. Mukasey, 528

F.3d 99, 110 (2d Cir. 2008).




                               2
    This petition arises from proceedings following the

IJ’s grant of reopening.    Accordingly, the IJ did not err in

declining to consider Chen’s arguments that he feared

persecution based on China’s family planning policy and his

participation in the 1989 pro-democracy movement because

Chen had presented, and waived, those same arguments in his

original proceedings and did not present any new evidence in

the reopened proceedings.    See Singh v. Gonzales, 468 F.3d

135, 139 (2d Cir. 2006) (“Motions to reopen are designed to

allow consideration of circumstances that have arisen

subsequent to the applicant’s previous hearing.”); Gomes v.

Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005) (concluding

that BIA did not err in declining to address petitioners’

already litigated claims in reopened proceedings where

reopening had been granted to allow the petitioners to

present new evidence).

    Additionally, the agency did not err in finding that

Chen did not establish his eligibility for relief based on

his practice of Christianity or his illegal departure from

China.   Although Chen argues that the agency failed to

consider all of his evidence, the record does not compel

that conclusion as the IJ specifically referenced the


                               3
testimony of both Chen and his cousin, Chen’s evidence of

conditions in China, and the letters Chen submitted as

corroboration.   See Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 337 n.17 (2d Cir. 2006)(“[W]e presume that an

IJ has taken into account all of the evidence before him,

unless the record compellingly suggests otherwise.”).

    Additionally, substantial evidence supports the

agency’s conclusion that Chen did not establish a well-

founded fear of persecution as a Christian.   Because Chen

did not allege that he was personally subjected to past

persecution on account of his faith or that there was any

reason why he would be “singled out individually for

persecution,” he was required to establish a pattern or

practice of persecution of similarly situated persons.    See

Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008).

The agency reasonably concluded that the record did not

establish such a pattern because the evidence of the

mistreatment of some Christians in China does not compel the

conclusion that there is a pattern of persecution so

systematic or pervasive that the millions of Christians in

China are at risk.1   Cf. Santoso v. Holder, 580 F.3d 110,

       1
        Chen requests that we take judicial notice of State
  Department reports in China to supplement the record, but
                              4
112 (2d Cir. 2009) (concluding that substantial evidence

supported the agency’s determination that the mistreatment

of some ethnic Chinese in Indonesia did not establish a

pattern or practice of persecution in part because Indonesia

is a large country).

    Indeed, as the IJ found, the record provided

inconsistent information about Chen’s faith, undermining his

claim to an objectively reasonable fear of persecution.2

For example, in Chen’s 1993 asylum application he stated

that he was a Buddhist, but following reopening he testified

that he attended an underground church in China before 1993,

while his cousin testified that Chen had attended only

government sanctioned churches.   Similarly, despite Chen’s

testimony that he had attended church in the United States

since 1994, his church only confirmed that he had attended

since 2007.   The IJ reasonably concluded that this evidence



  we decline to do so. See 8 U.S.C. § 1252(b)(4)(A)
  (providing that this Court must “decide the petition only
  on the administrative record on which the order of
  removal is based”).
      2
        Because the IJ never made an explicit adverse
  credibility determination, the BIA assumed that Chen’s
  testimony was credible, and we assume the same now. See
  Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000).
  Accordingly, we do not address Chen’s argument that the
  agency erred in finding his testimony incredible.
                              5
undermined Chen’s claim to a well-founded fear of

persecution because his lack of engagement with Christianity

suggested that he might not provoke action from the

authorities and he might attend a government sanctioned

church.   Based on the evidence about Chen’s faith and the

evidence of country conditions, the agency reasonably

concluded that Chen did not establish a well-founded fear of

persecution, and thus did not err in denying his

applications for asylum and withholding of removal.       See

Jian Hui Shao, 546 F.3d at 156.

    Finally, the agency reasonably denied CAT relief

because Chen did not present any particularized evidence

establishing that he would be tortured because of his

illegal departure from China.       See Mu Xiang Lin v. U.S.

Dep't of Justice, 432 F.3d 156, 60 (2d Cir. 2005) (holding

that a petitioner is not “entitled to CAT protection based

solely on the fact that she is part of the large class of

persons who have illegally departed China” and noting that

generalized country conditions reports stating that some

Chinese prisoners have been tortured “by no means establish

that prisoners in [the petitioner’s] circumstances . . . are

‘more likely than not’ to be tortured”).


                                6
    For the foregoing reasons, the petition for review is

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

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



                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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