08-5733-ag
Lin v. Holder
BIA
Burr, IJ
A099 666 389
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 27 th day of January, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
HUI LIN,
Petitioner,
v. 08-5733-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, 1
Respondent.
______________________________________
FOR PETITIONER: Vlad Kuzmin, Kuzmin & Associates,
P.C., New York, New York.
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Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Ernesto H. Molina, Jr., Assistant
Director; M. Lee Quinn, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Hui Lin, a native and citizen of the People’s
Republic of China, seeks review of an October 28, 2008 order
of the BIA affirming the October 4, 2007 decision of
Immigration Judge (“IJ”) Sarah M. Burr denying his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Hui Lin, No. A099
666 389 (B.I.A. Oct. 28, 2008), aff’g No. A099 666 389 (Immig.
Ct. N.Y. City Oct. 4, 2007). Because the BIA’s decision
essentially adopts the IJ’s conclusions, we review the
decision of the IJ. See Secaida-Rosales v. INS, 331 F.3d 297,
305 (2d Cir. 2003), abrogated in part by Xiu Xia Lin v.
Mukasey, 534 F.3d 162 (2d Cir. 2008). We will uphold the
factual findings of the IJ so long as they are supported by
substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
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Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). However,
“[w]e review de novo questions of law and the [IJ’s]
application of law to undisputed fact.” Bah v. Mukasey, 529
F.3d 99, 110 (2d Cir. 2008). In applying these standards, we
assume the parties’ familiarity with the underlying facts and
the record of prior proceedings.
1. Asylum and Withholding of Removal
Under 8 U.S.C. § 1101(a)(42), an individual is not per se
eligible for asylum based on the forced abortion or
sterilization of a spouse or partner. See Shi Liang Lin v.
U.S. Dep’t of Justice, 494 F.3d 296, 307-08 (2d Cir. 2007).
Rather, “applicants can become candidates for asylum relief
only based on persecution that they themselves have suffered
or must suffer.” Id. at 308. Because Lin is not eligible for
relief based solely on his girlfriend’s forced abortion, he
was required to show: “(1) resistance to a coercive family
planning policy[;] . . . and (2) that [he] has suffered harm
amounting to persecution on account of that resistance.” Id.
at 313 (internal quotation marks omitted); see also Matter of
M-F-W- & L-G-, 24 I. & N. Dec. 633, 641-42 (BIA 2008).
Even assuming that Lin’s pushing a family planning cadre
constituted “resistance” to a family planning policy, the IJ
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properly concluded that Lin was not persecuted on account of
those actions. Lin testified that the only harm he suffered
as a result of the pushing was that he was arrested and
detained for five or six hours. We have held that a brief
detention and release, without more, does not constitute
persecution. See Joaquin-Porras v. Gonzales, 435 F.3d 172,
182 (2d Cir. 2006) (upholding the agency’s determination that
applicant was not eligible for withholding of removal based on
a “brief” detention, after which he was released “without
harm”). As Lin does not argue that he has a well-founded fear
of future persecution on account of his resistance, we discern
no error in the IJ’s denial of asylum. Moreover, because
Lin’s claim for withholding of removal is based on the same
factual predicate as his asylum claim, his failure to meet his
burden for asylum necessarily precludes him from meeting the
higher burden required for withholding of removal. See Paul
v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).
2. CAT Relief
A petitioner is not “entitled to CAT protection based
solely on the fact that []he is part of the large class of
persons who have illegally departed China.” Mu Xiang Lin v.
U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005)
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(emphasis in original); see also Mu-Xing Wang v. Ashcroft, 320
F.3d 130, 143-44 (2d Cir. 2003). Because Lin failed to submit
particularized evidence indicating that he is likely to be
tortured upon his return to China and instead produced only
generalized evidence concerning the treatment of prisoners in
that country, the BIA did not err in concluding that Lin
demonstrated no entitlement to CAT relief. See Mu Xiang Lin,
432 F.3d at 160.
3. Conclusion
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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