08-5649-ag
Lin v. Holder
BIA
Holmes-Simmons, IJ
A097 385 233
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 16 th day of February, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 CUI YAN LIN,
14 Petitioner,
15
16 v. 08-5649-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,
25 New York, New York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, Civil Division; Linda S.
3 Wernery, Assistant Director; Scott
4 Rempell, Trial Attorney, Office of
5 Immigration Litigation, United States
6 Department of Justice, Washington,
7 D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED, that the petition for review
12 is DENIED.
13 Cui Yan Lin, a native and citizen of the People’s
14 Republic of China, seeks review of an October 31, 2008,
15 order of the BIA reversing the March 22, 2007, decision of
16 Immigration Judge (“IJ”) Theresa Holmes-Simmons, which
17 granted her applications for asylum and withholding of
18 removal, but denied her application for relief under the
19 Convention Against Torture (“CAT”). In re Cui Yan Lin, No.
20 A097 385 233 (B.I.A. Oct. 31, 2008), rev’g No. A097 385 233
21 (Immig. Ct. N.Y. City Mar. 22, 2007). We assume the
22 parties’ familiarity with the underlying facts and
23 procedural history in this case.
24 When the BIA rejects the IJ’s decision in its entirety,
25 we review only the decision of the BIA. See Yan Chen v.
26 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
2
1 agency’s factual findings under the substantial evidence
2 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.
3 Dep't of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
4 We review de novo questions of law and the application of
5 law to undisputed fact. See, e.g., Salimatou Bah v.
6 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
7 Lin argues that the BIA’s determination that she does
8 not have a well-founded fear of persecution was in error for
9 two reasons: 1) the BIA impermissibly reviewed de novo the
10 IJ’s factual findings; and 2) the BIA’s legal conclusion, as
11 supported by the IJ’s factual findings, is not supported by
12 substantial evidence in the record. Both arguments are
13 without merit. First, the BIA was entitled to review de
14 novo the IJ’s legal determination regarding Lin’s
15 eligibility for relief. See Matter of A-S-B-, 24 I. & N.
16 Dec. 493, 496-97 (BIA 2008) (explaining that the question of
17 whether uncontested facts are sufficient to establish a
18 well-founded fear of persecution is a legal determination
19 that is not subject to the clearly erroneous standard of
20 review); 8 C.F.R. § 1003.1(d)(3) (requiring the BIA to
21 review the IJ’s findings of fact for clear error and
22 questions of law, discretion, and judgment de novo).
3
1 Second, substantial evidence supports the BIA’s legal
2 determination, based on the IJ’s factual findings, that
3 Lin’s fear of undergoing a mandatory gynecological
4 examination was too speculative to merit relief. When an
5 alien has not suffered a per se form of persecution, i.e.,
6 abortion and sterilization, she can still qualify for asylum
7 if she can establish that: (1) she resisted China’s family
8 planning policy, (2) she has been persecuted in the past or
9 has a well-founded fear of persecution in the future, and
10 (3) the persecution was or would be because of her
11 resistance to the policy. See 8 U.S.C. § 1101(a)(42). The
12 BIA did not address whether Lin had engaged in resistence.
13 Rather, it found that she had not been persecuted in the
14 past, a finding she does not dispute, and that her fear of
15 future harm was not well-founded. As to the latter finding,
16 the BIA determined that gynecological examinations are not a
17 per se form of persecution and that, in any event, she could
18 not establish an objectively reasonable fear of being forced
19 to undergo such an examination upon her return to China. We
20 need not decide whether mandatory gynecological examinations
21 constitute persecution, because we agree with the BIA that
22 Lin failed to establish an objectively reasonable fear that
4
1 she would be forced to undergo such an examination upon her
2 return.
3 As the agency found, Lin had never been subjected to a
4 mandatory gynecological examination and there was no
5 evidence in the record to suggest that Chinese officials had
6 notified her family that she was required to undergo such an
7 examination. Thus, her fear of a hypothetical future
8 examination was not objectively reasonable. See Jian Xing
9 Huang v. INS, 421 F.3d 125 ,128-29 (2d Cir. 2005) (finding
10 that petitioner’s alleged fear of persecution is
11 “speculative at best” where it lacked any solid support in
12 the record for his assertion that he would be subject to
13 forced sterilization). Accordingly the agency reasonably
14 denied Lin’s asylum application.
15 Because Lin’s claim for withholding of removal and CAT
16 relief was based on the same factual predicate as her asylum
17 claim, and the BIA reasonably found she was unable to meet
18 her burden for asylum, she was necessarily unable to meet
19 the higher standard required for withholding of removal and
20 CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
21 Cir. 2006); Xue Hong Yang v. U.S. Dep’t. of Justice, 426
22 F.3d 520, 523 (2d Cir. 2005). Finally, Lin’s claim that she
5
1 faces punishment upon her return based on her illegal
2 departure from China is not exhausted, and we decline to
3 consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480
4 F.3d 104, 119-20 (2d Cir. 2007).
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
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