12-1436
Chen v. Whitaker
BIA
Lamb, IJ
A096 314 325
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 14th day of December, two thousand
5 eighteen.
6
7 PRESENT:
8 JON O. NEWMAN,
9 DENNIS JACOBS,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _____________________________________
13
14 XIN ZHEN CHEN,
15 Petitioner,
16
17 v. 12-1436
18 NAC
19
20 MATTHEW G. WHITAKER, ACTING
21 UNITED STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting
28 Assistant Attorney General; Blair
29 T. O’Connor, Assistant Director;
1
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1 Rosanne M. Perry, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Xin Zhen Chen, a native and citizen of the
11 People’s Republic of China, seeks review of a March 30, 2012,
12 decision of the BIA affirming both the July 14, 2010, decision
13 of an Immigration Judge (“IJ”) denying her application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”), and the IJ’s August 10,
16 2010, decision denying her motion to reopen. In re Xin Zhen
17 Chen, No. A096 314 325 (B.I.A. Mar. 30, 2012), aff’g No. A096
18 314 325 (Immig. Ct. N.Y. City July 14 and Aug. 10, 2010). We
19 assume the parties’ familiarity with the underlying facts and
20 procedural history of this case.
21 Under the circumstances, we have reviewed both the IJ’s
22 and the BIA’s decisions “for the sake of completeness.”
23 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
24 Cir. 2006). The applicable standards of review are well
25 established. See 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v.
2
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1 Mukasey, 546 F.3d 138, 157-58, 168-69 (2d Cir. 2008).
2 Chen applied for asylum, withholding of removal, and CAT
3 relief based on her claim that she fears persecution because
4 she has had more than one child in violation of China’s
5 population control program. For largely the same reasons set
6 forth in Jian Hui Shao, we find no error in the agency’s
7 determination that Chen failed to satisfy her burden for
8 asylum, withholding of removal, and CAT relief. See 546 F.3d
9 at 158-67; see also Paul v. Gonzales, 444 F.3d 148, 156-57
10 (2d Cir. 2006). Contrary to Chen’s contention, the BIA was
11 not required to review the IJ’s alternative ruling that Chen’s
12 asylum application was untimely. See INS v. Bagamasbad, 429
13 U.S. 24, 25 (1976) (“As a general rule courts and agencies
14 are not required to make findings on issues the decision of
15 which is unnecessary to the results they reach.”).
16 The BIA did not err in denying Chen’s motion to reopen
17 because Chen’s evidence in support of her claimed fear of
18 religious persecution was available and could have been
19 presented at the hearing before the IJ. See 8 C.F.R.
20 § 1003.23(b)(3); Jian Hui Shao, 546 F.3d at 168. Chen does
21 not challenge that determination here. See Yueqing Zhang v.
22 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
3
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1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe
5 Clerk of Court
4
04122018-2
Chen v. Whitaker
Combined Opinion