         09-2900-ag
         Chen v. Holder
                                                                                        BIA
                                                                                   Morace, IJ
                                                                               A 097 743 640
                            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 25 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                        GUIDO CALABRESI,
 8                        RICHARD C. WESLEY,
 9                        PETER W. HALL,
10                              Circuit Judges.
11
12       _______________________________________
13
14       XING TIAN CHEN, a.k.a. XING JIAN CHENG,
15                Petitioner,
16
17                         v.                                   09-2900-ag
18                                                              NAC
19       ERIC H. HOLDER, JR.,
20       UNITED STATES ATTORNEY GENERAL
21                Respondent.
22
23       _______________________________________
24
25       FOR PETITIONER:                Pro se.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General; Jennifer Levings, Senior
29                                      Litigation Counsel; Karen L. Melnik,
30                                      Trial Attorney, Office of
31                                      Immigration Litigation, Civil
32                                      Division, United States Department
33                                      of Justice, Washington, D.C.
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 Xing Jian Chen, a native and citizen of

6    China, seeks review of the June 12, 2009 order of the BIA

7    denying his motion to remand and affirming the October 17,

8    2007 decision of Immigration Judge (“IJ”) Philip L. Morace

9    denying his application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).     In

11   re Xing Jian Chen, No. A 097 743 640 (B.I.A. June 12, 2009),

12   aff’g No. A 097 743 640 (Immig. Ct. N.Y. City Oct. 17,

13   2007).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we consider both

16   the IJ’s and BIA’s opinions “for the sake of completeness.”

17   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal

18   quotation omitted).     The applicable standards of review are

19   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

20   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       Chen argues that the government violated 8 C.F.R.

22   § 208.6 by informing Chinese authorities that he had applied



                                     2
1    for political asylum in the United States.     Under that

2    section, “[i]nformation contained in or pertaining to any

3    asylum application . . . shall not be disclosed without the

4    written consent of the applicant.”     8 C.F.R. § 208.6(a).     In

5    determining whether confidentiality has been breached, the

6    relevant inquiry is whether the information disclosed by the

7    government “was sufficient to give rise to a reasonable

8    inference” that Chen had applied for asylum.     Zhen Nan Lin

9    v. U.S. Dep’t of Justice, 459 F.3d 255, 264 (2d Cir. 2006).

10   In this case, the redaction of Chen’s name from the police

11   report before it was sent to the Chinese authorities was

12   sufficient to satisfy 8 C.F.R. § 208.6.     See Zhen Nan Lin,

13   459 F.3d at 266 (holding that, in order to protect an asylum

14   applicant’s identity, the government may “redact information

15   identifying the applicant from a document before submitting

16   it to the foreign government”).     To the extent Chen argues

17   that authorities could have discovered his identity by using

18   the arrest date and other information contained in the

19   report, we are not persuaded.

20       The IJ also did not err in denying Chen’s claims for

21   withholding of removal and CAT relief.     Although Chen argues

22   that the IJ failed to address his eligibility for



                                     3
1    withholding of removal based on his illegal departure from

2    China, Chen never raised an illegal departure claim in his

3    asylum application or his testimony before the IJ.      To the

4    contrary, Chen testified that he did not know whether he

5    left China legally or illegally.   Furthermore, to the extent

6    the IJ construed Chen to have raised a CAT claim based on

7    his being “smuggled” out of China, the IJ did not err in

8    finding Chen ineligible for relief on that basis,

9    particularly where he produced no evidence in support of

10   such a claim.   See Mu Xiang Lin v. U.S. Dep’t of Justice,

11   432 F.3d 156, 159-60 (2d Cir. 2005); Mu-Xing Wang v.

12   Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 2003).   Contrary to

13   Chen’s assertion, the IJ did not reject his CAT claim on

14   credibility grounds, instead finding that the evidence,

15   testimony, and background materials did not establish that

16   it was more likely than not that Chen would be tortured if

17   returned to China.

18       Finally, the BIA did not abuse its discretion in

19   denying Chen’s motion to remand.   See Jin Ming Liu v.

20   Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).   Instead, the

21   BIA properly declined to remand based on two letters Chen

22   submitted from his mother that were questionable on their

23   face.   See INS v. Abudu, 485 U.S. 94, 104-05 (1988).

                                   4
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any pending motion

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

4    Any pending request for oral argument in this petition is

5    DENIED in accordance with Federal Rule of Appellate

 6   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
 7
 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10




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