Cui Yan Lin v. Holder

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 17 6