United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS October 5, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
04-60441
Summary Calendar
JIAN CHENG LIN,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
No. A95 213 895
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jian Cheng Lin, a native and citizen of China, appeals the
decision by the Board of Immigration Appeals (BIA), affirming the
denial of his application for asylum. Lin has abandoned his appeal
from the BIA’s denial of withholding of removal and relief under
the Convention Against Torture for his claims of physical harm for
illegally departing China. See Calderon-Ontiveros v. INS, 809 F.2d
1050, 1052 (5th Cir. 1986).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Lin claims the BIA erred: in denying him asylum based upon
his wife’s grant of asylum due to China’s Coercive Population
Control (CPC) policy; and in failing to extend spousal asylum under
In Re CYZ, 21 I. & N. Dec. 915 (1997), because, under Texas law, he
was the common-law spouse of his wife when she was granted asylum
(they were married after the asylum-grant).
We need not address the issue of common-law marriage because
the BIA did not err in ruling that spousal asylum under CYZ was
inapplicable. Lin concedes that his wife suffered no past
persecution either through a forced abortion or sterilization. He
acknowledged at his asylum hearing that, due to her being granted
asylum, his wife would not be required to return to China. She,
therefore, has no well-founded fear of future persecution. As a
result, Lin has not demonstrated he is entitled to asylum based on
his wife’s circumstances. Accordingly, the BIA’s decision denying
asylum and determining CYZ was inapplicable is substantially
reasonable. See Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th
Cir. 1996).
As a second issue, Lin contends: this court should remand his
petition for consideration of additional evidence (his wife is
pregnant with their second child); and, should he be forced to
return to China, he would be in violation of the CPC policy.
Under 8 U.S.C. § 1252(a)(1), our court does not have
authority to remand for consideration of additional evidence.
2
Lin’s reliance upon INS v. Ventura, 537 U.S. 12 (2002), is
misplaced because, in that case, the Supreme Court remanded the
petition to the BIA for consideration of evidence on an issue the
BIA had failed to address. Id. at 17-18. Here, Lin seeks to have
this court order the BIA to consider a new issue raised for the
first time in his petition for review.
PETITION FOR REVIEW DENIED
3