    13-1239
    Chen v. Lynch
                                                                                BIA
                                                                             Hom, IJ
                                                                        A087 785 377
                         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 ASUMMARY ORDER@). A PARTY CITING
TO 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 16th day of July, two thousand fifteen.

    PRESENT:
             DEBRA ANN LIVINGSTON,
             SUSAN L. CARNEY,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    CHANGJIAN CHEN,
             Petitioner,

                    v.                                               13-1239
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,*
             Respondent.
    _____________________________________

    *
     Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Attorney General Loretta E. Lynch is automatically substituted
    for former Attorney General Eric H. Holder, Jr., as the
    Respondent in this case.

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FOR PETITIONER:                       Changjian Chen, Pro Se,
                                      Flushing, NY

FOR RESPONDENT:                       Joyce R. Branda, Acting
                                      Assistant Attorney General;
                                      Emily Anne Radford, Assistant
                                      Director; Jesse D. Lorenz, Trial
                                      Attorney, Office of Immigration
                                      Litigation, United States
                                      Department of Justice,
                                      Washington D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED in part and DENIED in part.

    Petitioner Changjian Chen, a native and citizen of the

People’s Republic of China, seeks review of a March 12,

2013, decision of the BIA, affirming the November 10, 2011,

decision       of   an    Immigration       Judge    (“IJ”),   denying      his

application for asylum, withholding of removal, and relief

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

Changjian Chen, No. A087 785 377 (B.I.A. Mar. 12, 2013),

aff’g    No.    A087     785   377   (Immig.   Ct.    N.Y.   City   Nov.    10,

2011).         We   assume     the    parties’      familiarity     with    the

underlying facts and procedural history in this case.


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      Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s opinions.                   See Zaman v. Mukasey,

514   F.3d   233,    237    (2d   Cir.      2008)    (per      curiam).         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).

      The petition raises three issues: (1) whether the IJ

abused his discretion in refusing to accept Chen’s evidence

submitted after the filing deadline; (2) whether the IJ

committed constitutional or legal error in pretermitting

Chen’s asylum application as untimely; and (3) whether the

IJ erred in finding that Chen did not establish either past

persecution    or    a   likelihood        of   future   persecution.           We

dismiss the petition as to Chen’s claim for asylum.                             We

deny the petition as to all other matters.

I.    Rejection of Late Documents

      Under 8 C.F.R. § 1003.31(c), an IJ may set a deadline

for the submission of documents, and after the deadline,

may   deem   the    opportunity    to      file   them    waived.         The   IJ

“retains     the    authority     to       determine     how    to   treat       an

untimely filing.”          Imm. Ct. Pract. Man. Ch.3(d)(ii).                    We

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review an IJ’s rejection of documents as untimely for abuse

of discretion.       Dedji v. Mukasey, 525 F.3d 187, 191 (2d

Cir. 2008).    An IJ may depart from a deadline when an alien

demonstrates    both     good    cause           for   a     departure      and   a

likelihood of substantial prejudice from enforcement of the

deadline.    Id. at 192.

    On April 7, 2010, the IJ set the filing deadline as

March   1,   2011,   giving     Chen       almost      one    year    to    submit

documents.     Chen submitted a number of documents pertaining

to his date of entry into the United States and his past

persecution    one     day    after        the     deadline.         Chen     then

submitted    additional      documents       weeks         later,    purportedly

because he had been waiting for his mother’s letter to

arrive from China.       The IJ did not abuse his discretion in

rejecting these late documents.                   Chen was represented by

counsel, had nearly a year to gather evidence prior to the

deadline, and did not request an extension or explain in

advance that the submissions would be late.                     See Dedji, 525

F.3d at 192.




                                       4
II. Untimely Asylum Application

      Pursuant to 8 U.S.C. §§ 1158(a)(3) and 1252(a)(2)(D),

our jurisdiction to review the agency’s determination that

an    asylum       application       was     untimely     is       limited     to

“constitutional claims or questions of law.”                       Chen raises

no reviewable claims.          He argues that the IJ erred when he

discounted     testimony      that    Chen    witnessed      the   exit   stamp

being placed in his passport in November 2008, but this

argument goes to the weight to be afforded the passport,

and   does   not    present    a     question    of   law.     Because       Chen

contests only the weight the IJ gave to his passport, he

raises a factual issue this Court lacks jurisdiction to

review.      Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 328-29, 332 (2d Cir. 2006).

III. Withholding of Removal

      To establish eligibility for withholding of removal, an

applicant must show that he will likely be persecuted if

returned     to    his   country.       8    U.S.C.   §   1231(b)(3)(A);        8

C.F.R. § 1208.16(b)(1), (2).                If the applicant is found to

have suffered past persecution, it is presumed that there

is a likelihood of future persecution on that basis.                           8

                                        5
C.F.R.      §   1208.16(b)(1).            Absent     past     persecution,        to

establish an independent fear of persecution, an applicant

must show that he subjectively fears persecution and that

this    fear      is   objectively       reasonable.         Ramsameachire        v.

Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

       As Chen argues, the agency failed to consider all of

his testimony when considering whether he had established

past persecution.          The IJ noted that Chen testified that he

was    arrested        during   a   religious        service    in    his   home,

detained for three days, forced to pay a fine, and required

to report monthly to the police.                    However, the IJ did not

reference an earlier incident in which Chen was detained

for    five       hours     for     distributing           material   promoting

Christianity, or that he was unable to enroll in college

due    to   the    three-day      detention     for    participation        in   an

illegal activity.           As a result, the agency may not have

considered        Chen’s    past        harm   in    the     aggregate.          See

Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005);

Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004).

Furthermore, we have concluded that physical mistreatment—

the    main       focus    of     the    agency’s     determination—is           not

                                          6
dispositive of whether persecution has occurred.                    See Guan

Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d

Cir. 2002).

    However, even if all incidents are considered, Chen was

detained   only      for    brief     periods,       was   never   physically

abused, and did not establish that he suffered a serious,

“non-physical       form[]       of   harm    such    as    ‘the   deliberate

imposition     of      a    substantial       economic       disadvantage.’”

Ivanishvili, 433 F.3d at 341 (quoting Guan Shan Liao, 293

F.3d at 67).        The IJ explicitly considered the more severe

incidents of mistreatment and omitted discussion only of

Chen’s   five-hour         detention    and    inability      to   enroll   in

college.     While the agency’s decision is not without error,

we are “not required to remand where there is no realistic

possibility that, absent the errors, the IJ or BIA would

have reached a different conclusion.”                      Alam v. Gonzales,

438 F.3d 184, 187-88 (2d Cir. 2006).

     Chen also argues that he established an independent

fear of future persecution on the basis of his religious

practice in the United States.                  In the absence of past

persecution,      he       was    required     to     show     a   reasonable

                                        7
possibility that “authorities . . . are either aware of his

activities       or      are     likely       to   become      aware     of     his

activities.”           Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

(2d Cir. 2008).              An alien may make this showing either by

offering evidence that “‘he or she would be singled out

individually           for     persecution’”       or   that     “proves        the

existence of ‘a pattern or practice in his or her country .

. . of persecution of a group of persons similarly situated

to the applicant.’”              Kyaw Zwar Tun v. INS, 445 F.3d 554,

564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).

    The     IJ     reasonably        concluded      that     Chen      failed    to

demonstrate        a     pattern    or    practice      of     persecution       of

Christians    who       attend     unregistered      churches.         Jian     Xing

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

submitted     no       evidence     of    such     persecution      because      he

submitted no evidence of country conditions.                        Absent any

such evidence in the record, the IJ did not err in finding

that Chen failed to meet his burden of proof.

    For the foregoing reasons, the petition for review is

DISMISSED at to Chen’s asylum claim and DENIED as to all

other claims.          As we have completed our review, any stay of

                                          8
removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot.     Any pending request

for oral argument in this petition is DENIED in accordance

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

Second Circuit Local Rule34.1(b).

                           FOR THE COURT:
                           Catherine O=Hagan Wolfe, Clerk




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