         09-1659-ag
         Chen v. Holder
                                                                                         BIA
                                                                                 A078 973 298

                            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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 2 nd day of June, two thousand ten.
 5
 6       PRESENT:
 7                 JOSÉ A. CABRANES,
 8                 BARRINGTON D. PARKER,
 9                 REENA RAGGI,
10                              Circuit Judges.
11       _________________________________________
12
13       JIAN BIN CHEN,
14
15                        Petitioner,
16
17                         v.                                      09-1659-ag
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                Respondent.
23       _________________________________________
24
25       FOR PETITIONER:                 Gary J. Yerman,
26                                       New York, New York.
27
28       FOR RESPONDENT:                 Tony West, Assistant Attorney
29                                       General; Anthony P. Nicastro, Senior
1                            Litigation Counsel; Tracey N.
2                            McDonald, Trial Attorney, Office of
3                            Immigration Litigation, United
4                            States Department of Justice,
5                            Washington, D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       Jian Bin Chen, a native and citizen of the People’s

12   Republic of China, seeks review of an April 1, 2009, order

13   of the BIA, affirming the October 23, 2007, decision of

14   Immigration Judge (“IJ”) Alan A. Vomacka, which denied his

15   application for asylum and withholding of removal.      In re

16   Jian-Bin Chen, No. A078 973 298 (B.I.A. Apr. 1, 2009), aff’g

17   No. A078 973 298 (Immig. Ct. N.Y. City Oct. 23, 2007).      We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20       Under the circumstances of this case, we review the

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

22   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

23   2005).   The applicable standards of review are well-

24   established.   See Salimatou Bah v. Mukasey, 529 F.3d 99, 110

25   (2d Cir. 2008); Manzur v. U.S. Dep’t of Homeland Sec., 494


                                   2
1    F.3d 281, 289 (2d Cir. 2007).

2        Substantial evidence supports the agency’s denial of

3    Chen’s application for relief.      Because the BIA assumed Chen

4    to be credible for purposes of its analysis, we will do the

5    same.   See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d

6    Cir. 2005).   We therefore do not reach Chen’s challenge to

7    the IJ’s adverse credibility determination.      Similarly,

8    because the BIA did not adopt the IJ’s finding that any harm

9    Chen might face in a future detention would not constitute

10   persecution, we need not reach Chen’s argument that such

11   finding was impermissibly speculative.      See Xue Hong Yang,

12   426 F.3d at 522.

13       Chen argues that the BIA failed to consider this

14   Court’s holding in Chun Gao v. Gonzales, 424 F.3d 122, 129

15   (2d Cir. 2005), that persecution for illegally selling Falun

16   Gong materials could be equivalent to persecution on account

17   of an imputed political opinion.      However, rather than

18   addressing the nexus issue, the BIA found that Chen had not

19   established that he would face persecution on any ground,

20   stating that he “presented no evidence that the government

21   of China has any interest in [him] today.”      Indeed, the IJ

22   similarly noted that, despite being given the opportunity to



                                     3
1    do so, Chen did not introduce any evidence that the Chinese

2    government was still interested in arresting him.

3    Accordingly, even if, arguendo, the BIA erred by failing to

4    consider Chun Gao, remand is unnecessary because, on the

5    strength of the BIA’s alternative finding, we can

6    confidently predict that the result would be the same.     See

7    Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d

8    Cir. 2006).

9        For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

13   this petition is DISMISSED as moot.    Any pending request for

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20
21




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