09-2245-ag
Lin v. BCIS
BIA
Gordon-Uruakpa, IJ
A070 163 444
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 26 th day of July, two thousand ten.
PRESENT:
RALPH K. WINTER,
JOSÉ A. CABRANES,
REENA RAGGI,
Circuit Judges.
_________________________________________
PENGFEI LIN,
Petitioner,
v. 09-2245-ag
NAC
BUREAU OF CITIZENSHIP AND
IMMIGRATION SERVICES,
Respondent.
_________________________________________
FOR PETITIONER: John Chang, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; D. Nicholas
Harling, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Pengfei Lin, a native and citizen of the People’s
Republic of China, seeks review of a May 21, 2009, order of
the BIA, reversing the October 9, 2007, decision of
Immigration Judge (“IJ”) Vivienne Gordon-Uruakpa, granting
his application for asylum and withholding of removal. In
re Pengfei Lin, No. A070 163 444 (B.I.A. May 21, 2009),
rev’g No. A070 163 444 (Immig. Ct. N.Y. City Oct. 9, 2007).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
BIA’s decision alone. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005).
Preliminarily, we reject Lin’s challenge to the BIA’s
conclusion that his case was governed by the REAL ID Act of
2005, Div. B of Pub. L. No. 109-13, 119 Stat. 231 (2005),
which governs applications for asylum and withholding of
removal filed after May 11, 2005, see Matter of S-B-, 24 I.
& N. Dec. 42, 45 (BIA 2006). Although Lin sent an asylum
application to the former INS in 1993, after he was ordered
deported, that application was rejected as improperly filed.
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In August 2005, Lin filed a motion to reopen with a new
asylum application, making an entirely different claim.
Reviewing the BIA’s interpretation of the statute for
reasonableness, see Maghradze v. Gonzales, 462 F.3d 150, 152
(2d Cir. 2006); Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir.
2001), we affirm the agency’s conclusion that because Lin’s
1993 application was never properly filed, August 2005 is
the relevant filing date, and the REAL ID Act applies.
We further conclude that substantial evidence supports
the BIA’s determination that Lin failed to demonstrate a
well-founded fear of persecution, i.e., “a subjective fear
that is objectively reasonable,” Shi Jie Ge v. Holder, 588
F.3d 90, 94 (2d Cir. 2009) (internal quotation marks
omitted), on account of his having fathered two children,
see Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(holding that an applicant’s well-founded fear claim was
“speculative at best” when he failed to present “solid
support” that he would be persecuted for violating family
planning policy upon his return to China); see also Jian Hui
Shao v. Mukasey, 546 F.3d 138, 161-62 (2d Cir. 2008)
(finding that substantial evidence supported the BIA’s
determination that petitioner failed to demonstrate a
reasonable possibility that he would face forced
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sterilization in China based on fathering two children).
In support of his application, Lin submitted voluminous
background material, including the 2007 Department of State
Country Report and the Aird affidavit. The BIA did not err
by summarily considering this evidence. See Jian Hui Shao,
546 F.3d at 169; see also Wei Guang Wang v. Mukasey, 437
F.3d 270, 275 (2d Cir. 2006) (noting that while the BIA must
consider evidence such as “the oft-cited Aird affidavit,
which [it] is asked to consider time and again[,] . . . it
may do so in summary fashion without a reviewing court
presuming that it has abused its discretion”).
Although Lin also submitted an unauthenticated
photocopy of a certificate purportedly issued by his local
village committee, the BIA did not err in finding that this
document did not permit Lin to carry his burden of proof
because, while the certificate referenced a mandatory
sterilization requirement, it did not “detail what would
occur if [Lin] refused” to comply or state that “other
persecutory measures would be inflicted upon him.” See Jian
Hui Shao, 546 F.3d at 172. We reach the same conclusion
regarding a letter from Lin’s sister alleging that she was
forcibly sterilized, because Lin’s sister’s children were
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“born in China and the letter fail[ed] to explain the
factual circumstances of her sterilization such as the
gender of her children, whether either birth was permitted,
and if the children were registered.” See id. at 160-61.
Therefore, the agency properly denied Lin’s application
for asylum. See 8 U.S.C. § 1101(a)(42). Because Lin was
unable to show the objective likelihood of persecution
needed to make out an asylum claim, he was necessarily
unable to meet the higher standard required to succeed on a
claim for withholding of removal where the claim rested on
the same factual predicate. See Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006).
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 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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