    13-2719
    Chen v. Lynch
                                                                                  BIA
                                                                           Connelly, IJ
                                                                          A073 056 172
                     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.

         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 24th day of August, two thousand fifteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RICHARD C. WESLEY,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    HUAN CHEN,
             Petitioner,

                    v.                                     13-2719
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Shari L. Astalos, Kerry W. Bretz,
                                  Bretz & Coven, LLP, New York, N.Y.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Ernesto H. Molina, Jr.,
                                  Assistant Director; Sabatino F. Leo,
                                  Trial Attorney, Office of
                                  Immigration Litigation, 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.

    Huan Chen, a native and citizen of China, seeks review

of a June 17, 2013, decision of the BIA affirming, in part,

an Immigration Judge’s (“IJ”) December 7, 2012, denial of

withholding of removal and Convention Against Torture

(“CAT”) relief.     In re Huan Chen, No. A073 056 172 (B.I.A.

Jun. 17, 2013), aff’g No. A073 056 172 (Immig. Ct. Batavia

Dec. 7, 2012).    We assume the parties’ familiarity with the

underlying facts, procedural history, and issues presented

for review.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA, i.e., minus the

IJ’s determination that one of Chen’s convictions was a

particularly serious crime.     See Xue Hong Yang v. U.S. Dep’t

of Justice, 426 F.3d 520, 522 (2d Cir. 2005).     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).


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    We generally lack jurisdiction to review the removal

order of an alien who, like Chen, was found removable by

reason of having committed an aggravated felony.      8 U.S.C.

§§ 1227(a)(2)(A)(iii)& 1252(a)(2)(C).    However, we retain

jurisdiction to review constitutional claims and questions

of law.   8 U.S.C. § 1252(a)(2)(D).   Here, we lack

jurisdiction over Chen’s challenges to the denial of

withholding of removal and assume jurisdiction to consider

the merits of Chen’s request for CAT relief.

    Chen contests the weight accorded certain evidence

(specifically, the weight given to evidence of general

country conditions in China and the existence of a Chinese

criminal statute).   Such arguments pose challenges to the

agency’s factual findings and do not raise reviewable

constitutional issues or questions of law.     See Barco-

Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008) (“[W]e

remain deprived of jurisdiction to review decisions under

the INA when the petition for review essentially disputes

the correctness of an IJ’s fact-finding”).     Although Chen

frames some of his claims to suggest he is raising a

question of law—for example, that he met the legal standard

for showing a pattern or practice of abuse toward the


                              3
mentally ill and criminals in China—the root of his

challenge is that the agency did not properly weigh country

conditions evidence, which is not a question of law.      See

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30

(2d Cir. 2006).

    In response to the Government’s argument that we lack

jurisdiction, Chen proffers a constitutional claim: that the

BIA deprived him of due process by crediting his testimony

that the “last time [he] left the United States was in

November of 2010” instead of relying on his contradictory

testimony and evidence suggesting he was incarcerated in the

United States at that time.   Although Chen employs the

rhetoric of a constitutional issue by styling this as a “due

process claim,” he is really challenging the weight accorded

the evidence, i.e., he argues that the agency should have

credited one part of his testimony over another.   Xiao Ji

Chen, 471 F.3d at 330.

    In any event, Chen was not deprived of due process.

Due process requires, at a minimum, that an alien “be

afforded the opportunity to be heard at a meaningful time

and in a meaningful manner . . . by an impartial and

disinterested tribunal,” free from “the appearance of bias


                              4
or hostility....”   Ali v. Mukasey, 529 F.3d 478, 490 (2d

Cir. 2008) (citations and internal quotations omitted).      The

record shows that not only did Chen testify that he spent

four months in China beginning in November 2010, but his

attorney made the same representation, Chen submitted a

sworn affidavit confirming the trip, and Chen’s application

for relief also stated the same.   The determination of

whether to credit Chen’s testimony and the evidence

supporting it is a question of fact for the agency.    Cf.

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

(“Decisions as to . . . which of competing inferences to

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

(internal quotations and citation omitted)).   That the

agency credited this body of evidence does not establish

that Chen was deprived of a full and fair opportunity to be

heard before an impartial tribunal.   Altogether, Chen has

not met the standard for withholding of removal.

    As to CAT relief, Chen argues that the pervasive

atmosphere of corruption and human rights violations in

China are sufficient to meet his burden.   However, general

evidence of human rights violations, including general

instances of torture, does not warrant CAT relief where

there is no evidence that someone in petitioner’s particular
                              5
circumstances is more likely than not to suffer torture upon

removal.   Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d

156, 160 (2d Cir. 2005).    As Chen has not proffered any

particularized evidence that he will likely face torture, he

has not met his burden.    Additionally, as discussed above,

Chen’s ability to return to China on four occasions without

incident undercuts his alleged fear of torture.

    For the foregoing reasons, the petition for review is

DENIED.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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