16-3330 Chen v. Sessions BIA Van Wyke, IJ A087 974 665 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 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 2nd day of October, two thousand eighteen.

PRESENT: JON O. NEWMAN, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges. _____________________________________

HUI CHEN, Petitioner,

v. 16-3330 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Joshua Bardavid, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Shelley R. Goad, Assistant Director; Elizabeth R. Chapman, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 DENIED.

Petitioner Hui Chen, a native and citizen of the People’s

Republic of China, seeks review of a September 13, 2016,

decision of the BIA affirming a July 22, 2015, decision of an

Immigration Judge (“IJ”) denying Chen’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Hui Chen, No. A

087 974 665 (B.I.A. Sept. 13, 2016), aff’g No. A 087 974 665

(Immig. Ct. N.Y. City July 22, 2015). We assume the parties’

familiarity with the underlying facts and procedural history

in this case, which are referenced only as necessary to

explain our decision.

Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). The standards of review are well

2 established. See

(b)(4)(B); Yanqin Weng v.

Holder,

(2d Cir. 2009). We address Chen’s

family planning and Christianity claims in turn.

I. Family Planning Claim

Chen alleged that in 2008, when his wife became pregnant

with a second child in violation of the family planning

policy, they relocated to avoid detection, but family

planning officials discovered the violation and beat Chen

when he tried to stop them from forcing his wife to have an

abortion. The agency concluded that, even assuming the truth

of these allegations, the beating did not amount to

persecution.

Chen cannot establish past persecution for himself based

on his wife’s forced abortion. See Shi Liang Lin v. U.S.

Dep’t of Justice,

(2d Cir. 2007)

(holding that to demonstrate persecution, husbands of women

who are forced to undergo abortions must show that they were

personally harmed on account of their own resistance to the

family planning policy). Moreover, not every incident of

physical violence constitutes persecution. See Jian Qiu Liu

v. Holder,

(2d Cir. 2011) (“We have never 3 held that a beating that occurs within the context of an

arrest or detention constitutes persecution per se.”). The

agency reasonably concluded that Chen’s brief confrontation

with family planning officials outside of an arrest or

detention and his failure to identify any specific injuries

or need for medical treatment was insufficient to show harm

rising to the level of persecution.

(upholding BIA’s

conclusion that single altercation with family planning

officials resulting only in minor bruising did not constitute

past persecution); cf. Beskovic v. Gonzales,

(2d Cir. 2006) (requiring careful consideration of

even single beating when it occurs in context of arrest and

detention).

We decline to address Chen’s fear of sterilization

because, as the Government argues, the IJ concluded that

Chen’s fear was not credible, Chen did not challenge that

determination on appeal to the BIA, and the BIA found the

issue waived. See Lin Zhong v. U.S. Dep’t of Justice,

, 107 n.1, 118-22 (2d Cir. 2007) (holding that issue

exhaustion, while not jurisdictional, is mandatory).

4 II. Christianity Claim

Even assuming that Chen’s allegations about the police

raid on his house church are credible, Chen alleged that he

escaped from the raid and was never beaten or detained for

his religious practice. Accordingly, he did not identify any

past persecution and was therefore required to demonstrate

that he “subjectively fears persecution” and “that his fear

is objectively reasonable.” Ramsameachire v. Ashcroft,

(2d Cir. 2004). The objective component can

be satisfied by establishing either “a reasonable possibility

he . . . would be singled out individually for persecution”

or “a pattern or practice . . . of persecution of a group of

persons similarly situated to the applicant.”

(b)(2)(iii); Y.C. v. Holder,

(2d

Cir. 2013).

The 2008 church raid alone does not establish a

reasonable possibility that Chen will suffer harm rising to

the level of persecution in the future. Chen did not provide

any details about the raid (i.e., how many members were

arrested, how long they were detained, or how they were

treated in detention) and Chen testified that his wife and 5 her relatives have continued to attend the same house church

and have engaged in evangelizing and outreach activities

without any further incidents. See Melgar de Torres v. Reno,

(2d Cir. 1999) (evidence that similarly

situated family members have not been harmed undercuts asylum

applicant’s fear of persecution); see also Jian Xing Huang v.

U.S. INS,

(2d Cir. 2005) (absent “solid

support in the record,” an applicant’s fear of future

persecution is “speculative at best”). Further, because the

country conditions evidence reflected that the Chinese

government’s policies toward Christians and house churches

vary by province and did not identify any reports of arrest

in Chen’s home province (Fujian), the agency reasonably

concluded that Chen did not establish a pattern or practice

of persecution of similarly situated Christians. See Jian

Hui Shao v. Mukasey,

(2d Cir. 2008)

(upholding BIA’s requirement that applicant demonstrate that

officials in his local area enforce a government policy when

evidence demonstrates local variations in enforcement of that

policy).

6 Because Chen failed to meet his burden of proof for

asylum, he necessarily failed to meet the higher burdens for

withholding of removal and CAT relief. Lecaj v. Holder,

(2d Cir. 2010).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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