         13-2490
         Chen v. Holder
                                                                                       BIA
                                                                                 Zagzoug, IJ
                                                                               A099 927 190
                           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 22nd day of September, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       YUNLIN CHEN,
14                Petitioner,
15
16                        v.                                    13-2490
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Blair T. O’Connor,
27                                     Assistant Director; John B. Holt,
28                                     Trial Attorney, Civil Division,
29                                     Office of Immigration Litigation,
30                                     United States Department of Justice,
31                                     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 Yunlin Chen, a native and citizen of China,

 6   seeks review of a June 11, 2013 decision of the BIA

 7   affirming an December 15, 2011 decision of an Immigration

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

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).     In re Yunlin Chen, No. A099 927

11   190 (B.I.A. June 11, 2013), aff’g No. A099 927 190 (Immig.

12   Ct. N.Y. City Dec. 15, 2011).       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 have reviewed

16   both 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) (per curiam).    The applicable standards of review are

19   well established.     See 8 U.S.C. § 1252(b)(4)(B); see also

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

21       Chen brought a so-called “other resistance” claim for

22   asylum and withholding of removal.       To succeed, he needed to


                                     2
 1   demonstrate that: (1) he engaged in “resistance” to China’s

 2   family planning policy; and (2) he suffered harm rising to

 3   the level of persecution or had a well-founded fear or

 4   likelihood of suffering such harm as a direct result of that

 5   resistance.    Shi Liang Lin v. U.S. Dep’t of Justice, 494

 6   F.3d 296, 313 (2d Cir. 2007); see also 8 U.S.C.

 7   § 1101(a)(42); 8 C.F.R. § 1208.16(b); Matter of J-S-, 24 I.

 8   & N. Dec. 520, 523 (A.G. 2008).

 9       In the main, Chen challenges the agency’s finding that

10   he did not suffer past persecution.   He contends that the

11   combination of his wife’s abortion and sterilization (which

12   traumatized him), the destruction of their home, and the

13   fines imposed on them together rose to the level of

14   persecution.

15       “[P]ersecution is the infliction of suffering or harm

16   upon those who differ on the basis of a protected statutory

17   ground.”   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

18   332, 341 (2d Cir. 2006).   “Such a definition is sufficiently

19   general to encompass ‘a variety of forms of adverse

20   treatment, including non-life-threatening violence and

21   physical abuse, or non-physical forms of harm such as the

22   deliberate imposition of a substantial economic


                                    3
 1   disadvantage.’”    Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d

 2   Cir. 2011) (quoting Ivanishvili, 433 F.3d at 341).    For

 3   economic harm to constitute persecution, the harm must be

 4   “severe,” but an applicant “need not demonstrate a total

 5   deprivation of livelihood or a total withdrawal of all

 6   economic opportunity in order to demonstrate harm amounting

 7   to persecution.”    Matter of T-Z-, 24 I. & N. Dec. 163,

 8   170-73 (BIA 2007); see also Guan Shan Liao v. U.S. Dep’t of

 9   Justice, 293 F.3d 61, 70 (2d Cir. 2002) (requiring an

10   applicant to present testimony or evidence of his financial

11   situation in order to show “that he suffered a deliberate

12   imposition of substantial economic disadvantage.” (internal

13   quotation and citation omitted)).

14       The agency reasonably concluded that the cumulative

15   harm Chen suffered did not amount to persecution.    As the

16   BIA pointed out, Chen has paid all but $1,000 of the fines;

17   and as the IJ pointed out, Chen is “in a position now” to

18   clear that debt.   Chen testified that he has owed the fine

19   for more than ten years; that he repaid much of it with

20   loans from neighbors; that he currently earns between $6,000

21   and $7,000 per year in the United States; and that he

22   incurred a $50,000 debt to emigrate here (of which $20,000

23   remains).   Plainly, the fine is a disadvantage (as all fines

                                    4
 1   are); but Chen failed to identify any specific, substantial

 2   disadvantage that he has suffered as a result.   See Matter

 3   of T-Z-, 24 I. & N. Dec. at 170-73; see also Guan Shan Liao,

 4   293 F.3d at 70.   And while his wife’s forced abortion and

 5   sterilization was not irrelevant to the analysis, Shi Liang

 6   Lin, 494 F.3d at 313, the combination of it and the fines

 7   would not compel a finding of persecution, 8 U.S.C. §

 8   1252(b)(4)(B).

 9       On appeal, the parties spar over the meaning of this

10   Court’s per curiam decision in Jian Qiu Liu v. Holder, which

11   addressed a claim of past persecution based on “other

12   resistance” to the family planning policy.   In that case,

13   Jian Qiu Liu testified when he and his wife failed to

14   produce a birth permit, family planning officials

15            demanded that Liu’s wife be taken so that a
16            forced abortion could be performed. As Liu’s
17            wife was being ‘dragged’ away, Liu pleaded for
18            the officials to stop. Liu then tried to
19            physically stop them. One of the officials
20            slapped Liu, but Liu continued to struggle.
21            At this point, several of the officials
22            surrounded Liu and punched him repeatedly in
23            the face, chest, and back. The police were
24            later called—after the family planning
25            officials took Liu’s wife away in order to
26            perform an abortion—and Liu spent two days in
27            custody for violating China’s family planning
28            policy.
29
30
31

                                   5
 1   632 F.3d 820, 821 (2d Cir. 2011).      The IJ deemed this to be

 2   past persecution and granted asylum.      The BIA reversed.

 3   This Court denied Liu’s petition for review, observing that

 4   “prior to his arrest and detention by local police, [Liu]

 5   suffered only minor bruising from an altercation with family

 6   planning officials, which required no formal medical

 7   attention and had no lasting physical effect.”       Id. at 822

 8   (emphasis in original).

 9       Chen reads our decision in Liu to measure past

10   persecution based solely on what transpired before Liu was

11   imprisoned.     So, in Chen’s case, the agency should have

12   compared his suffering to the “minor bruising” that resulted

13   from Liu’s single altercation with family planning

14   officials.     That analysis would lead to the inexorable

15   conclusion that “the economic, emotional and psychological

16   harm” he suffered was “substantially worse than any minor

17   bruises.”

18       Liu does not call for such mathematical parsing of the

19   timeline.     To the contrary, like Chen, Liu argued that the

20   agency failed “to analyze whether the beating occurred in

21   the context of his arrest,” that is, whether the cumulative

22   harm constituted persecution.       Liu, 632 F.3d at 822.   The

23   Court admonished that “a beating that occurs in the context

                                     6
 1   of an arrest or detention may constitute persecution,” and

 2   the agency must be “keenly sensitive” to that possibility.

 3   Id. (quoting Beskovic, 467 F.3d at 226).   Here, the agency

 4   correctly distinguished Liu: Chen had no altercation with

 5   family planning officials.   In fact, he had few interactions

 6   with them at all.

 7       In her oral decision, the IJ explained that while she

 8   found Chen’s testimony to be credible, she found one aspect

 9   of it implausible: his prediction that family planning

10   officials will sterilize him if he fails to repay the fine.

11   The IJ reasoned that Chen’s wife has been sterilized

12   already, and so there is no reason for officials to mete out

13   “such a severe penalty as sterilization” on Chen.     Chen

14   labels this finding “extremely naive” in light of the

15   “horror stories stemming from the family planning

16   authorities’ draconian regime.”   However, the 2007 State

17   Department profile on China, which Chen admitted into

18   evidence, states that Fujianese family planning officials

19   deny that parents can be sterilized if they are unable or

20   refuse to pay birth control fines, and that they have

21   permitted couples to make installment payments.     The State

22   Department acknowledges media reports of people being

23   punished for failing to pay fines, but notes that such cases

                                   7
 1   have not been independently verified.     This constitutes

 2   substantial evidence to support the IJ’s finding that Chen

 3   failed to satisfy his burden of showing an objectively

 4   reasonable fear of future persecution.

 5       The BIA’s decision assumed, without finding, that Chen

 6   engaged in “resistance” to China’s family planning policy.

 7   So we do not reach the issue of whether Chen did, in fact,

 8   resist the family planning policy.     See Xue Hong Yang v.

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

10   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

11       Having reasonably found that Chen failed to establish

12   the objective likelihood of persecution necessary for

13   asylum, the agency did not err in denying withholding of

14   removal and relief under the CAT, because these claims

15   shared the same factual predicate.     See Paul v. Gonzales,

16   444 F.3d 148, 156-57 (2d Cir. 2006).

17       For the foregoing reasons, the petition for review is

18   DENIED.   As we have completed our review, any stay of

19   removal that the Court previously granted in this petition

20   is VACATED, and any pending motion for a stay of removal in

21   this petition is DISMISSED as moot.     Any pending request for

22   oral argument in this petition is DENIED in accordance with

23   Federal Rule of Appellate Procedure 34(a)(2), and Second

                                   8
1   Circuit Local Rule 34.1(b).

2                                 FOR THE COURT:
3                                 Catherine O’Hagan Wolfe, Clerk
4
5
6




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