         12-2867
         Chen v. Holder
                                                                                       BIA
                                                                                  Rohan, IJ
                                                                               A097 524 071
                           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 6th day of August, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROSEMARY S. POOLER,
 9                REENA RAGGI,
10                     Circuit Judges.
11       _____________________________________
12
13       CHENG CHEN,
14                Petitioner,
15
16                        v.                                    12-2867
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Khagendra Gharti-Chhetry, New York,
24                                     New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
27                                     Assistant Attorney General; Eric W.
28                                     Marsteller, Senior Litigation
29                                     Counsel; John B. Holt, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, United States Department
32                                     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 Cheng Chen, a native and citizen of the

 6   People’s Republic of China, seeks review of a June 22, 2012,

 7   order of the BIA affirming in part the June 17, 2010,

 8   decision of Immigration Judge (“IJ”) Patricia A. Rohan,

 9   which denied Chen’s application for asylum and withholding

10   of removal, and reversed in part the IJ’s grant of relief

11   under the Convention Against Torture (“CAT”).       In re Cheng

12   Chen, No. A097 524 071 (B.I.A. June 22, 2012), aff’g and

13   rev’g No. A097 524 071 (Immig. Ct. N.Y. City June 17, 2010).

14   We assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       Under the circumstances of this case, we have reviewed

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

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

19   The applicable standards of review are well-established.

20   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

21   F.3d 510, 513 (2d Cir. 2009).       Pursuant to 8 U.S.C.

22   § 1252(a)(2)(C), we lack jurisdiction to review final orders

23   of removal against an alien, such as Chen, who is removable

                                     2
 1   by reason of having committed an aggravated felony.

 2   However, because Chen’s arguments raise “questions of law,”

 3   we retain jurisdiction over his petition.   8 U.S.C.

 4   § 1252(a)(2)(D); see Xiao Ji Chen v. U.S. Dep’t of Justice,

 5   471 F.3d 315, 329-30 (2d Cir. 2006).

 6       Initially, Chen challenges the agency’s pretermission

 7   of withholding of removal, contending that the agency erred

 8   in not separately analyzing whether he was a danger to the

 9   community when making the discretionary determination that

10   his 2007 conviction for assault with a dangerous weapon in

11   aid of racketeering activity, see 18 U.S.C. § 1959(a)(3),

12   was a particularly serious crime.   Chen’s argument, however,

13   is foreclosed by our decision in Ahmetovic v. Immigration &

14   Naturalization Service, 62 F.3d 48 (2d Cir. 1995), which

15   accorded Chevron deference to the BIA’s interpretation that

16   no separate danger to the community analysis is required

17   where a crime is found to be particularly serious.     See id.

18   at 52-53.

19       Chen also challenges the BIA’s denial of CAT deferral,

20   contending that the BIA mischaracterized the IJ’s factual

21   assessment of the background evidence and applied the wrong

22   legal standard in finding that the IJ’s grant of CAT relief


                                  3
 1   was clearly erroneous.   However, contrary to Chen’s

 2   assertion, the BIA properly applied the clear error standard

 3   of review to the IJ’s findings of future fact because its

 4   reversal was based not on a de novo review of the record,

 5   but rather on a determination that the record did not

 6   support the IJ’s conclusion that Chen faced probable future

 7   torture.   See Hui Lin Huang v. Holder, 677 F.3d 130, 134

 8   (2d Cir. 2012) (noting that the BIA may reject finding of

 9   future fact as clearly erroneous “where the IJ lacks an

10   adequate basis in the record for the determination that a

11   future event will, or is likely to, occur”).

12       The BIA correctly noted that the probability of Chen

13   being discovered and detained for his future practice of

14   Falun Gong in China and the probability that Chen would be

15   tortured once detained are distinct factual propositions.

16   In these circumstances, we have recognized that “[a]n alien

17   will never be able to show that he faces a more likely than

18   not chance of torture if one link in the chain cannot be

19   shown to be more likely than not to occur.”     Savchuck v.

20   Mukasey, 518 F.3d 119, 123-24 (2d Cir. 2008).    Although the

21   IJ relied on particularized evidence demonstrating that

22   Falun Gong practitioners like Chen are subject to torture in


                                   4
 1   China once detained—a finding that the BIA credited—the BIA

 2   nevertheless reasonably determined that the IJ’s finding

 3   that Chen would be discovered and detained for his practice

 4   of Falun Gong in China was clearly erroneous because it was

 5   not based on any particularized evidence.   See Hui Lin

 6   Huang, 677 F.3d at 133-34; see also Mu Xiang Lin v. U.S.

 7   Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)

 8   (requiring particularized evidence of a likelihood of

 9   torture to establish eligibility for CAT relief); cf. Jian

10   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (finding

11   that, absent “solid support in the record,” a fear of future

12   harm is “speculative at best”).

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, the pending motion

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

16                      FOR THE COURT:
17                      Catherine O’Hagan Wolfe, Clerk of Court
18
19




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