                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-2007

Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2788




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"Chen v. Atty Gen USA" (2007). 2007 Decisions. Paper 187.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-2788
                                     ___________

                                    JIN FU CHEN,
                                              Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A78 923 575
                        Immigration Judge: Daniel A. Meisner
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 6, 2007
               Before: AMBRO, FUENTES and FISHER, Circuit Judges

                          (Opinion filed : November 27, 2007)
                                      ___________

                                      OPINION
                                     ___________

PER CURIAM

      Jin Fu Chen petitions for review of a decision of the Board of Immigration

Appeals (BIA), dismissing his appeal and affirming the final removal order of an

Immigration Judge (IJ). We will deny the petition.

      Chen entered the United States without inspection in 2003. He was placed in
removal proceedings and applied for asylum, withholding of removal and protection

under the Convention Against Torture (CAT). Chen testified that his parents were Falun

Gong practitioners. One day when his parents were out practicing Falun Gong,

government officials came to his parents’ house looking for them. The officers looked

around the house and then left a summons for Chen’s parents to appears later that day at a

public security office. Chen went to tell his uncle, who warned Chen’s parents. Chen

returned to the family home. The next day, the government officials returned and became

angry when Chen said he did not know where his parents were. One of the officials

slapped Chen in the face and threatened that Chen would be arrested and held if his

parents did not surrender. Chen left for his uncle’s house, where he stayed for a week.

He then moved to his aunt’s house in a nearby town where he stayed for about three

months before leaving China.

       The IJ stated that he was “not convinced that the respondent has submitted a

truthful or credible claim,” but found in the alternative, that even if Chen were credible,

he had not established past persecution or a well-founded fear of future persecution. A.R.

30, 33. The BIA explicitly adopted the holding that Chen “failed to met the burdens of

proof on his claims of persecution and torture, even assuming that he testified credibly.

A.R. 2.

       We agree that the incident during which Chen was threatened with arrest does not

rise to the level of persecution. We further agree that Chen did not present evidence that

he was likely to be persecuted in the future. Chen testified that he does not practice Falun

                                              2
Gong.1 The record also shows that he was able to live with relatives in a nearby village

for several months without any problems. Further, the IJ’s finding that Chen left China

legally undercuts his claim that he will be persecuted or tortured for leaving illegally.

       Chen argued in his brief to the BIA that his attorney was ineffective, but the BIA

found that Chen had not properly presented his claim, as he had not complied with the

requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).2 See

also Lu, 259 F.3d at 132 (Lozada requirements are a “reasonable exercise of the Board’s

discretion”). We therefore do not reach Chen’s ineffective assistance claim.

       Chen also belatedly attempts to raise a claim that he will be persecuted because, if

he marries, he wants to have at least three children. Besides being highly speculative, this

claim was not raised before the IJ and BIA and is therefore not exhausted. Abdulrahman,

330 F.3d at 594-95.

       For the foregoing reasons, we will deny the petition.




   1
    Chen’s brief states that he now practices Falun Gong. Petitioner’s Brief at 2. Any
claim that he will be persecuted on this basis was not presented to the BIA and is not
properly before us now. 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587,
594-95 (3d Cir. 2003).
   2
     Lozada requires (1) an affidavit of the petitioner containing details as to the
agreement with counsel and actions taken or not taken by counsel; (2) that counsel be
informed of the allegations and given an opportunity to respond; and (3) a complaint to be
filed with disciplinary authorities or a reasonable explanation for the decision not to file a
complaint. Lu v. Ashcroft, 259 F.3d 127, 132-34 (3d Cir. 2001).
                                              3
