         12-1337
         Chen v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A089 253 329
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 23rd day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                PETER W. HALL,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       ______________________________________
12
13       SHENGSHENG CHEN,
14
15                        Petitioner,
16
17                        v.                                    12-1337
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Peter L. Quan, New York, N.Y.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General; Blair T. O’Connor,
28                                       Assistant Director; Edward C.
29                                       Durant, Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DISMISSED in part and DENIED in part.

 5       Petitioner Shengsheng Chen, a native and citizen of

 6   China, seeks review of a March 8, 2012 order of the BIA

 7   affirming the February 3, 2010 decision of an Immigration

 8   Judge (“IJ”), which denied Chen’s application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).     In re Shengsheng Chen, No. A089

11   253 329 (B.I.A. Mar. 8, 2012), aff’g No. A089 253 329

12   (Immig. Ct. N.Y. City Feb. 3, 2010).    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 consider both

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

17   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008).   The applicable standards of review are well

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

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

21       Initially, Chen contends that the BIA erred in finding

22   that he did not file his asylum application within a

23   reasonable time of the cited change in circumstances,

                                     2
 1   arising from his pro-China Democracy Party (“CDP”)

 2   activities in the United States.   The BIA assumed, however,

 3   that Chen filed his application within a reasonable time of

 4   the start of his CDP activities, but concluded that his CDP

 5   activities did not establish an exception to the one-year

 6   filing requirement for asylum applications because they did

 7   not place him “at risk of harm” in China.    Because he has

 8   not raised a justiciable legal question challenging the

 9   basis of that determination, we lack jurisdiction to review

10   the agency’s pretermission of Chen’s asylum application as

11   untimely.   See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); 8

12   C.F.R. § 1208.4(a)(4); Xiao Ji Chen v. U.S. Dep’t of

13   Justice, 471 F.3d 315, 329 (2d Cir. 2006).

14       Chen also challenges the agency’s denial of withholding

15   of removal, contending it is objectively reasonable that he

16   will be persecuted in China because of his CDP activities in

17   the United States.   He concedes that he has no apposite

18   evidence other than his own testimony.   Without objective

19   evidence either that he would be singled out individually

20   for persecution, or that there exists a pattern or practice

21   of persecution of CDP members in China for their activities

22   in the United States, the BIA reasonably determined that


                                   3
 1   Chen’s testimony was speculative and thus insufficient to

 2   meet his burden of proof.     Hongsheng Leng v. Mukasey, 528

 3   F.3d 135, 142-43 (2d Cir. 2008); Jian Xing Huang v. INS, 421

 4   F.3d 125, 128-29 (2d Cir. 2005).    Moreover, to the extent

 5   Chen contends that it was impossible for him to obtain

 6   objective evidence, he misapprehends the effect of the

 7   assignment to him of the burden to establish a clear

 8   probability that “authorities in [China] are either aware...

 9   or likely to become aware of his [CDP] activities.”

10   Hongsheng Leng, 528 F.3d at 143.    Because Chen failed to

11   prove affirmatively a clear probability of future

12   persecution, the agency did not err when it denied

13   withholding of removal.     Kyaw Zwar Tun v. INS, 445 F.3d 554,

14   564-65 (2d Cir. 2006).

15       The agency’s denial of CAT relief is not before us,

16   since Chen did not challenge it in his brief.     Yueqing Zhang

17   v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

18       For the foregoing reasons, the petition for review is

19   DISMISSED in part and DENIED in part.    As we have completed

20   our review, the pending motion for a stay of removal is

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




                                     4
1   DENIED in accordance with Federal Rule of Appellate

2   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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