Opinion
No. 08-1689-ag NAC.
November 26, 2008.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: Romben Aquino, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General (Leslie McKay, Senior Litigation Counsel, Stefanie Hennes, Law Clerk, on the brief ), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. JON O. NEWMAN, HON. JOHN M. WALKER, JR., Circuit Judges.
Petitioner Wen Zhu Chen, a native and citizen of the People's Republic of China, seeks review of a March 31, 2008 order of the BIA affirming the April 5, 2006 decision of Immigration Judge ("IJ") Barbara A. Nelson, denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Wen Zhu Chen, No. A95 687 960 (B.I.A. Mar. 31, 2008), aff'g No. A95 687 960 (Immig. Ct. N.Y. City Apr. 5, 2006). We assume the parties' familiarity with the underlying facts and procedural history of the case.
When the IJ's decision rests on multiple grounds and the BIA adopts and affirms that decision without expressly addressing each of the grounds, we may review the entire IJ decision and need not confine our review to the grounds expressly addressed by the BIA. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). However, when the BIA agrees with the IJ in some respects but not others, we review the IJ's decision as modified by the BIA decision, i.e., minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Here, the BIA declined to adopt or reject the IJ's credibility determination, instead assuming Chen's credibility for purposes of its analysis. Because the BIA assumed Chen's credibility for purposes of its analysis, we do the same. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
We review the agency's factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Upon our review of the record, we conclude that the BIA did not err in finding that Chen failed to establish her eligibility for asylum and withholding of removal. Chen's applications for relief were based on two independent claims: (1) that she suffered past persecution under China's family planning policy when she had an IUD inserted; and (2) that she feared future persecution in China based on her alleged involvement with Falun Gong. With regard to the family planning claim, the BIA recently clarified that "[a]n insertion of an IUD does not rise to the level of harm necessary to constitute `persecution' absent some aggravating circumstances." Matter of M-F-W- L-G-, 24 I. N. Dec. 633 (BIA 2008). We need not decide today whether that interpretation of the statute merits Chevron deference because, under any standard, the insertion of the IUD in Chen's case did not rise to the level of persecution.
Specifically, in her asylum application, Chen stated that she had not opposed the IUD insertion. Moreover, Chen did not allege that she was subjected to physical force when the IUD was inserted, nor that the IUD was reinserted after she removed it. Compare with Yahong Zheng v. Gonzales, 409 F.3d 804, 806 (7th Cir. 2005) (granting petition for review where petitioner's IUD was "involuntar[ily]" reinserted several times after petitioner removed it). While Chen cites to a Fourth Circuit case which suggests that an IUD insertion may constitute persecution even absent physical force or restraint, see Qiao Hua Li v. Gonzales, 405 F.3d 5 171, 179 (4th Cir. 2005), she fails to set forth any additional circumstances to raise the insertion of her IUD to a level that constitutes persecution. See Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 341 (2d Cir. 2006). Because Chen also does not assert that she has a well-founded fear of future persecution on the basis of her removal of the mandatory IUD, her family planning claim fails.
Although Chen told the IJ that she had removed the IUD without the government's consent, she did not argue to the BIA, nor does she argue to this Court, that her removal of the IUD contributes in any way to her persecution claim. Instead, Chen "deliberately limited" her appeal to the issue of whether insertion of the IUD alone constitutes persecution. See Qiao Hua Li v. Gonzales, 405 F.3d 171, 179 (4th Cir. 2005). Thus, any arguments related to Chen's removal of her IUD are deemed waived. See Xiao Ji Chen v. Gonzales, 471 F.3d 315, 321 n. 1 (2d Cir. 2006).
Moreover, the Fourth Circuit's decision is actually adverse to Chen's argument. In that case the court held that the "single . . . insertion" of an IUD — with no allegation of any aggravating factors — was insufficient to constitute past persecution. See Qiao Hua Li, 405 F.3d at 179.
With respect to her alleged involvement with Falun Gong, the agency properly determined that Chen failed to meet her burden of establishing a well-founded fear of future persecution. Chen argues that "the Chinese authorities are likely to become aware of Chen's [Falun Gong] activities, if they are not aware of those activities already, and this knowledge will likely lead to persecutory treatment if Chen is returned to China." However, as the BIA found, Chen failed to provide any evidence indicating that the Chinese government has targeted her or will target her if returned to China. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). Absent such evidence, her fear is "speculative at best." See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). Moreover, although an applicant may be able to establish asylum eligibility by showing a pattern or practice of persecution against similarly situated individuals, see 8 C.F.R. § 208.13(b)(2)(iii), Chen makes no such argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005) ("Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal."). Accordingly, we find no reason to disturb the agency's decision.
Chen does not allege that she personally suffered past persecution because of her Falun Gong-related activities.
Because Chen was unable to show the objective likelihood of persecution needed to make out an asylum claim, she was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Finally, because Chen fails to challenge the agency's denial of CAT relief, any such argument is deemed waived. See Yueqing Zhang, 426 F.3d at 541 n. 1, 545 n. 7.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of 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 Rule 34(b).