09-2028-ag
Lin v. Holder
BIA
Bain, IJ
A099 526 368
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2 nd day of March, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 WEI QUAN LIN,
14 Petitioner,
15
16 v. 09-2028-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22 FOR PETITIONER: G. Victoria Calle,
23 New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Dana M.
28 Camilleri, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
32
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Wei Quan Lin, a native and citizen of the People’s
6 Republic of China, seeks review of an April 14, 2009 order
7 of the BIA, affirming the October 10, 2007 decision of
8 Immigration Judge (“IJ”) Terry Bain, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Wei
11 Quan Lin, No. A099 526 368 (B.I.A. Apr. 14, 2009), aff’g No.
12 A099 526 368 (Immig. Ct. N.Y. City Oct. 10, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Manzur v.
20 U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.
21 2007).
22 The agency reasonably determined that Lin did not
23 establish eligibility for asylum based on his wife’s alleged
2
1 forced sterilization. This Court has squarely rejected the
2 notion that aliens are per se eligible for relief based on
3 the forced sterilization of their spouse. See Shi Liang Lin
4 v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en
5 banc). Rather, applicants must base their claims on
6 “persecution that they themselves have suffered or must
7 suffer.” See id. at 308. In order to establish eligibility
8 for relief, an applicant claiming persecution for “other
9 resistance” must demonstrate both: (1) “resistance” to a
10 coercive family planning policy, which can “cover[ ] a wide
11 range of circumstances, including expressions of general
12 opposition, attempts to interfere with enforcement of
13 government policy in particular cases, and other overt forms
14 of resistance to the requirements of the family planning
15 law”; and (2) that the applicant has suffered or reasonably
16 fears suffering “harm amounting to persecution on account of
17 that resistance.” Id. at 313 (quoting In re S-L-L-, 24 I. &
18 N. Dec. 1, 10 (BIA 2006)). Lin failed on both scores.
19 Contrary to Lin’s argument that the IJ failed to
20 consider his claim of emotional persecution, the IJ
21 expressly found that during the 15 years Lin remained in
22 China following his wife’s alleged sterilization, he
3
1 encountered no further problems with the government.
2 Indeed, Lin did not claim before the IJ that his emotional
3 distress constituted persecution. Even if he had, and even
4 assuming that such distress rose to the level of
5 persecution, Lin failed to show that his distress occurred
6 on account of his own resistance. See id. at 309-10.
7 Indeed, in Shi Liang Lin, we explicitly rejected the
8 argument Lin proposes here, that intentionally having a
9 third child constitutes “resistance” to a family planning
10 policy under 8 U.S.C. § 1101(a)(42). Id. at 313. Thus, the
11 BIA reasonably found that Lin had not established his
12 eligibility for asylum. See id.
13 Lin does not challenge the agency’s denial of his
14 withholding of removal or CAT claims. Regardless, because
15 the agency reasonably determined that he was not eligible
16 for asylum, he necessarily did not meet the higher threshold
17 for those forms of relief. See Paul v. Gonzales, 444 F.3d
18 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
19 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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