09-3160-ag
Lin v. Holder
BIA
Morace, IJ
A078 712 485
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 19 th day of February, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 SHUN GUAN LIN,
14 Petitioner,
15
16 v. 09-3160-ag
17 NAC
18 UNITED STATES DEPARTMENT OF JUSTICE,
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Yee Ling Poon, New York, New York.
25
26 FOR RESPONDENTS: Tony West, Assistant Attorney
27 General; Jennifer Paisner Williams,
28 Senior Litigation Counsel; Liza S.
29 Murcia, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 Shun Guan Lin, a native and citizen of the People’s
6 Republic of China, seek review of a June 26, 2009, order of
7 the BIA affirming the June 20, 2008, decision of Immigration
8 Judge (“IJ”) Philip L. Morace, which denied his application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Shun Guan Lin,
11 No. A078 712 485 (B.I.A. June 26, 2009), aff’g No. A078 712
12 485 (Immig. Ct. N.Y. City June 20, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 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. 8
19 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of
20 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
21 I. Family Planning Claim
22 As a preliminary matter, the IJ properly applied our
23 decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d
2
1 296, 309-12 (2d Cir. 2007) (en banc), in denying Lin’s
2 application for relief. Contrary to Lin’s argument, to the
3 extent that decision was the controlling authority at the
4 time the IJ rendered his oral decision, he was bound to
5 apply it. See Harper v. Virginia Dep’t of Taxation, 509
6 U.S. 86, 97-98 (1993) (holding that courts are bound “to
7 apply a rule of federal law retroactively after the case
8 announcing the rule has already done so” in all cases still
9 open on direct review); Accord Hawknet, Ltd. v. Overseas
10 Shipping Agencies, 590 F.3d 87, 91 (2d Cir. 2009).
11 Furthermore, we find no merit in Lin’s argument that he
12 is eligible for relief under “traditional principles of
13 refugee law.” Our holding Shi Liang Lin is entirely
14 dispositive of his claim that he was persecuted by virtue of
15 his wife’s forced sterilization. See Shi Liang Lin, 494
16 F.3d at 309-12. For the spouse of someone who was forcibly
17 sterilized to establish eligibility for relief, he must
18 demonstrate: (1) “resistance” to a coercive family planning
19 policy; and (2) that he “suffered harm amounting to
20 persecution on account of that resistance” or has a well-
21 founded fear of such persecution. Id. at 313 (citing Matter
22 of S-L-L, 24 I. & N. Dec. at 10) (BIA 2006). The IJ and BIA
3
1 properly found that, even if Lin demonstrated that helping
2 his wife hide from authorities constituted “other
3 resistance” to China’s population control policy, the fine
4 imposed on him did not amount to persecution. As the IJ
5 found, despite the fine, Lin was able to continue working
6 for the four years he remained in China, he ultimately paid
7 off the fine, and was still able to borrow $54,000 to
8 finance his trip to the United States . See Matter of T-Z-,
9 24 I. & N. Dec. 163, 170-72 (BIA 2007) (defining persecution
10 as including “the deliberate imposition of a severe economic
11 disadvantage or the deprivation of liberty, food, housing,
12 employment or other essentials of life” ).
13 Ultimately, because Lin was unable to meet his burden
14 of proof for asylum, he was unable to meet the higher
15 standard required to succeed on a claim for withholding of
16 removal and CAT relief to the extent his application rested
17 on his family planning claim. See Paul v. Gonzales, 444
18 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS, 947 F.2d 660,
19 665 (2d Cir. 1991).
20 II. Illegal Departure
21 As to Lin’s claim that he fears persecution and torture
22 for having illegally departed China, the agency reasonably
4
1 found that “[p]unishment for violation of a generally
2 applicable criminal law is not persecution.” Saleh v. U.S.
3 Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992); see also
4 Matter of Sibrun, 18 I. & N. Dec. 354, 359 (BIA 1983)
5 (holding that “the possibility that the applicant may be
6 subjected to criminal prosecution and perhaps severe
7 punishment as a result of his illegal departure from [his
8 home country] does not demonstrate a likelihood of
9 persecution under the Act”). Moreover, the country
10 conditions evidence in the record indicates that, at most,
11 Lin would be issued a small fine and that he would be
12 detained for a short period of time for health and identity
13 checks. Accordingly, the record does not compel the
14 conclusion that Lin was eligible for asylum or withholding
15 of removal based on his illegal departure. See Saleh, 962
16 F.2d at 239; see also Matter of Sibrun, 18 I. & N. Dec. at
17 359.
18 Finally, the agency reasonably denied Lin’s application
19 for CAT relief insofar as it was based on his illegal
20 departure from China. As we have held, absent any
21 particularized evidence, an applicant cannot demonstrate
22 that he will more likely than not be tortured “based solely
23 on the fact that [he] is part of the large class of persons
5
1 who have illegally departed China” and on generalized
2 evidence indicating that torture occurs in Chinese prisons.
3 Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60
4 (2d Cir. 2005) (emphasis in original).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
6