09-1042-ag
Lin v. Holder
BIA
Holmes-Simmons, IJ
A099 026 068
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
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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 A SUMMARY
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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 5 th day of May, two thousand ten.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
CHANG DE LIN,
Petitioner,
v. 09-1042-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jia Tao, Law Office of Xiumin Chen,
New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Keith I. McManus, Senior
Litigation Counsel; Joseph A.
O’Connell, Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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.
The Petitioner, Chang De Lin, a native and citizen of
the People’s Republic of China, seeks review of a February
13, 2009, order of the BIA affirming the July 17, 2007,
decision of Immigration Judge (“IJ”) Theresa Holmes-Simmons
denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Lin, No. A099 026 068 (B.I.A. Feb. 13, 2009), aff’g No.
A099 026 068 (Immig. Ct. N.Y. City July 17, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review only
the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian
Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008);
Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
I. Asylum
Lin does not challenge the BIA’s finding that he failed
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to establish past persecution. Nor does he address the
BIA’s finding that the fact that his wife remained in China
unharmed despite having given birth to a child without
permission undermined his claim that he will be sterilized
if returned to China. See Melgar de Torres v. Reno, 191
F.3d 307, 313 (2d Cir. 1999) (finding that because asylum
applicant’s family members continued to live in applicant’s
native country unharmed, her claim of a well-founded fear
was diminished). Moreover, we find unavailing Lin’s
assertion that the BIA erroneously required him to
corroborate his claim. It was Lin’s burden to demonstrate
his eligibility for relief. See 8 U.S.C.
§ 1229a(c)(4)(A). Moreover, although credible testimony
alone may suffice to carry that burden, it does not always.
See 8 U.S.C. § 1158(b)(1)(B)(ii); Diallo v. INS, 232 F.3d
279, 287 (2d Cir. 2000). Here, the BIA found that Lin “has
not submitted any evidence to show that, based on his
situation, he possesses a well-founded fear of persecution
in China.” Lin provides us no reason to disturb that
finding.
Finally, we decline to consider Lin’s unexhausted
argument that he is eligible for asylum because there exists
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a pattern or practice of persecution of individuals who
violate the family planning policy in China. See Yueqing
Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
2005).
II. Withholding of Removal and CAT Relief
Lin does not set forth the standard for withholding of
removal or CAT relief in his brief before this Court, much
less challenge the bases for the IJ’s denial of these forms
of relief. Accordingly, we deem any such challenge waived.
See id.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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