Chen v. Mukasey, (2nd Cir. 2008)
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06-1609-ag
Chen v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
FILED AFTER JANUARY 1, 2007 IS PERM ITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN W HICH A LITIGANT CITES
A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION: "(SUM M ARY ORDER)."
A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH
THE PAPER IN W HICH THE SUM M ARY ORDER IS CITED O N A NY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS PUBLICLY
A C C E S S IB L E W IT H O U T P A Y M E N T O F F E E (S U C H A S T H E D A T A B A S E A V A IL A B L E A T
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 17th day of July, two thousand eight.
PRESENT:
HON. RALPH K. WINTER,
HON. CHESTER J. STRAUB,
HON. DEBRA ANN LIVINGSTON,
Circuit Judges.
LIN CHEN,
Petitioner,
v. 06-1609-ag
NAC
MICHAEL B. MUKASEY, ATTORNEY GENERAL,1
Respondent.
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is
automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.
FOR PETITIONER: Jeffrey E. Baron, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Acting Assistant Attorney General, Linda S. Wernery, Assistant Director, Gregory M.
Kelch, Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.
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.
Petitioner Lin Chen, a native and citizen of the People's Republic of China, seeks review of the March 27, 2006 order of the BIA affirming the November 29, 2004 decision of Immigration Judge ("IJ") Gabriel C. Videla: (1) pretermitting his application for asylum; and (2) denying his application for withholding of removal and relief under the Convention Against Torture ("CAT"). In re Lin Chen, No. A78 211 466 (B.I.A. Mar. 27, 2006), aff'g No. A78 211 466 (Immig. Ct. N.Y. City Nov. 29, 2004). We assume the parties' familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ's decision, we review the IJ's decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005). Even assuming the IJ's adverse credibility determination was improper, we must deny Chen's petition for review.
Chen failed to raise his CAT claim based on his illegal departure and his alleged fear of persecution because Chinese officials are aware that he applied for asylum in the United States in either his brief to the BIA or his brief to this Court. Accordingly, we deem those claims abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007) (citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005)). Similarly, as Chen failed to argue before the BIA that the IJ erred in pretermitting his asylum application and that he established eligibility for asylum and withholding of removal based on his resistance to China's coercive population control program, and as the government raises this failure to exhaust in its brief to this Court, we decline to consider those arguments. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 11920 (2d Cir. 2007); see also id. at 124. Moreover, under our decision in Shi Liang Lin v. U.S.
Dep't of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc), Chen is not eligible for asylum based solely on his wife's alleged forced abortion. Id. at 314. To the extent that he argues the contrary, we deny his petition.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
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