     17-940
     Chen v. Whitaker
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A200 150 703
                             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
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 28th day of November, two thousand eighteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   JUN CHEN,
14                      Petitioner,
15
16                      v.                                       17-940
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Adedayo O. Idowu, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Lyle D. Jentzer,
27                                       Senior Litigation Counsel; Erik R.
28                                       Quick, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
1          UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is DENIED.

5          Petitioner Jun Chen, a native and citizen of the People’s

6    Republic of China, seeks review of a March 9, 2017, decision

7    of    the   BIA   affirming   a    July   29,    2016,      decision   of    an

8    Immigration       Judge   (“IJ”)    denying     Chen’s      application     for

9    asylum,     withholding     of     removal,     and   relief     under      the

10   Convention Against Torture (“CAT”).              In re Jun Chen, No. A

11   200 150 703 (B.I.A. Mar. 9, 2017), aff’g No. A 200 150 703

12   (Immig. Ct. N.Y. City July 29, 2016).             We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15         Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA.                See Xue Hong Yang

17   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

18   Although Chen dedicates the bulk of his brief to challenging

19   the     IJ’s      adverse     credibility         determination,          that

20   determination is not a basis for the agency’s decision because

21   the BIA did not reach or rely on it.                  Id.     Although Chen

22   provides little in the way or argument on the actual bases of

                                           2
1    the agency’s decision—the lack of nexus to a protected ground

2    and the lack of harm rising to the level of persecution—we

3    address those issues for the sake of thoroughness.         The

4    applicable standards of review are well established.       See

5    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

6    510, 513 (2d Cir. 2009).   We find no error in the agency’s

7    decision.

8    Past Persecution

9        Chen claimed that he was detained and beaten by the

10   police in 1988 because he was accused of theft and that he

11   was interrogated and beaten in 2011 because he attempted to

12   visit the home of a pro-democracy activist.         The agency

13   reasonably concluded that this past harm was not on account

14   of a protected ground.

15       To establish eligibility for asylum and withholding of

16   removal, “the applicant must establish that race, religion,

17   nationality, membership in a particular social group, or

18   political opinion was or will be at least one central

19   reason for persecuting the applicant.”   8 U.S.C.

20   § 1158(b)(1)(B)(i); id. § 1231(b)(3)(A); see also Matter of

21   C-T-L-, 25 I. & N. Dec. 341, 348 (BIA 2010).   To

22   demonstrate that persecution is on account of an

                                  3
1    applicant’s political opinion, the applicant must “show,

2    through direct or circumstantial evidence, that the

3    persecutor’s motive to persecute arises from the

4    applicant’s political belief,” rather than merely from the

5    persecutor’s own opinion.     Yueqing Zhang v. Gonzales, 426

6    F.3d 540, 545 (2d Cir. 2005).        The persecution may be on

7    account of an opinion imputed to the applicant by the

8    persecutor, regardless of whether or not this imputation is

9    accurate.   See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d

10   Cir. 2005).

11       Regarding the 1988 incident, Chen did not testify to any

12   facts from which one could infer that police targeted him on

13   account of his political opinion, imputed or otherwise.              He

14   testified that the police believed that he committed theft

15   and asked him questions about the theft, not about his

16   political opinion.      The agency therefore did not err in

17   determining   that   this   incident    did   not   qualify   as   past

18   persecution on account of a protected ground.            See Yueqing

19   Zhang, 426 F.3d at 545.

20       The agency also reasonably concluded that any harm that

21   Chen experienced in May 2011 when he attempted to visit Liu

22   Xiaobo’s house was not because Chinese officials imputed a

                                      4
1    political opinion to Chen.         The IJ inferred that the police

2    officers’ actions were because Chen was attempting to enter

3    a private residence uninvited.             Chen has not provided any

4    direct evidence that the officers beat him because of an

5    imputed    pro-democracy       political    opinion     given   that   he

6    provided no details regarding the interrogation corresponding

 7   to the beating.      Although the IJ could have inferred that the

 8   beating was on account of an imputed political opinion,

 9   “[d]ecisions as to . . . which of competing inferences to

10   draw are entirely within the province of the trier of fact.”

11   Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (internal

12   quotation marks omitted); see also INS v. Elias-Zacarias, 502

13   U.S.    478,   483    (1992)     (requiring     “some    evidence”     of

14   persecutor’s motive).

15          Chen also testified that he was fired in 1989 after he

16   participated in pro-democracy rallies and protests in China.

17   However, even assuming that Chen was fired because of his

18   political opinion, the agency did not err in determining that

19   this harm did not constitute persecution.             See Matter of T-

20   Z-, 24 I. & N. Dec. 163, 170-73 (BIA 2007) (holding that to

21   be persecution, economic harm           must be “severe,” but need not

22   amount to “a total deprivation of livelihood or a total

                                         5
1    withdrawal of all economic opportunity”); see also Guan Shan

2    Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002)

3    (requiring testimony or evidence of financial situation to

4    show “that he suffered a deliberate imposition of substantial

5    economic     disadvantage”   (internal   quotation    and    citation

6    omitted)).     Chen did not testify about difficulty finding new

7    employment or any other form of severe economic harm.

8    Future Persecution

9          The agency also did not err in determining that Chen did

10   not   have     an   objectively   reasonable   fear     of     future

11   persecution.     Absent past persecution, an alien may establish

12   eligibility for asylum by demonstrating a well-founded fear

13   of future persecution, 8 C.F.R. § 1208.13(b)(2), which must

14   be both subjectively credible and objectively reasonable,

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

16         Because Chen’s fear of future harm was based on his

17   political activities in the United States, he had to show a

18   reasonable possibility that Chinese authorities were either

19   already aware, or likely to become aware, of his pro-democracy

20   activities in the United States or after his return to China.

21   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);

22   Shi Jie Ge v. Holder, 588 F.3d 90, 95-96 (2d Cir. 2009) (“[A]

                                       6
1    petitioner may also demonstrate a well-founded fear of future

2    persecution by demonstrating that his involvement . . . may

3    become known after his return.”).        The agency reasonably

4    concluded   that     Chen’s   participation   in   pro-democracy

5    activities in New York and on the internet did not necessarily

6    mean that the Chinese government would become aware of his

7    political opinion.    See Jian Xing Huang v. U.S. INS, 421 F.3d

8    125, 129 (2d Cir. 2005) (absent “solid support in the record,”

9    an applicant’s fear of future persecution is “speculative at

10   best”); see also Y.C. v. Holder, 741 F.3d 324, 337 (2d Cir.

11   2013) (rejecting contention that Chinese officials are likely

12   to become aware of petitioner’s activities posted online in

13   the United States because, despite evidence that Chinese

14   authorities monitor the internet and are hostile to certain

15   groups, “it [would] require[] a chain of inferences we are

16   unprepared to draw.”).

17       Because Chen did not demonstrate that he suffered past

18   persecution or that he has a well-founded fear of future

19   persecution, he failed to meet his burden for either asylum

20   or withholding of removal.      See Lecaj v. Holder, 616 F.3d

21   111, 119 (2d Cir. 2010).

22

                                     7
1         Chen has abandoned his CAT claim.           Although his brief

2    set out the CAT standard, it contained only a single sentence

3    of   argument   asserting    a   fear   of   torture   on   account   of

4    religion, which was not a basis for relief that Chen raised

5    below.     See Yueqing Zhang, 426 F.3d at 545 n.7.           Given the

6    fact that Chen’s brief largely discusses adverse credibility,

7    which is not at issue here, and addresses a religion-based

8    CAT claim unrelated to Chen’s case, we caution counsel to

9    brief dispositive issues and the facts and claims relevant to

10   a particular case.

11         For the foregoing reasons, the petition for review is

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

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

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

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

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

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

18   34.1(b).

19                                    FOR THE COURT:
20                                    Catherine O’Hagan Wolfe,
21                                    Clerk of Court




                                        8
