08-1378-ag
Lin v. Holder
BIA
Ferris, IJ
A075 968 295
A098 776 209
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
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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 22 nd day of January, two thousand ten.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_________________________________________
MIN LIN AND JIANWU WU,
Petitioners,
v. 08-1378-ag
NAC
ERIC H. HOLDER, JR., 1 UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONERS: John Chang, New York, N.Y.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General, Linda S. Wernery,
Assistant Director, Lindsay B.
Glauner, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
1
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.
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.
Min Lin and Jianwu Wu, both natives and citizens of the
People’s Republic of China, seek review of the March 10,
2008 order of the BIA, affirming the October 16, 2006
decision of Immigration Judge (“IJ”) Noel A. Ferris, which:
(1) pretermitted Wu’s application for asylum; (2) denied
Lin’s application for asylum; and (3) denied both
petitioners’ applications for withholding of removal. In re
Min Lin and Jianwu Wu, Nos. A075 968 295, A098 776 209
(B.I.A. Mar. 10, 2008), aff’g Nos. A075 968 295, A098 776
209 (Immig. Ct. N.Y. City Oct. 16, 2006). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as modified and supplemented by the BIA’s
decision, i.e., minus the arguments for denying relief that
the BIA rejected. See Xue Hong Yang v. U.S. Dep’t of
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Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d
Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
As a preliminary matter, in their brief, petitioners do
not challenge the agency’s decision to pretermit Wu’s
application for asylum. In addition, petitioners do not
challenge the agency’s adverse credibility determination
with respect to Lin’s claim of past persecution. Therefore,
the only issues remaining before us are whether the agency
erred in finding that petitioners do not have a well-founded
fear of future persecution based on the birth of their two
U.S. children, and whether the IJ violated their due process
rights.
With respect to petitioners’ fear of forced
sterilization based on the birth of their children, we find
no error in the agency’s conclusion that they failed to
demonstrate their eligibility for relief. To establish
asylum eligibility based on a fear of future persecution, an
applicant must show that he or she subjectively fears
persecution and that this fear is objectively reasonable.
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
3
Petitioners’ arguments are based largely on evidence they
submitted on appeal to the BIA. However, the BIA refused to
consider that evidence because it was not previously
unavailable. See 8 C.F.R. § 1003.2(c). Petitioners have
abandoned any challenge to the agency’s decision in that
respect because they do not argue in their brief before this
Court that the BIA abused its discretion by concluding that
petitioners failed to demonstrate that their evidence was
previously unavailable. See Yueqing Zhang v. Gonzales, 426
F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). As to the
evidence petitioners submitted before the IJ, we have
previously reviewed the agency’s consideration of similar
evidence and have found no error in its conclusion that it
is insufficient to establish an objectively reasonable fear
of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
156-65 (2d Cir. 2008). Thus, the agency did not err in
finding that petitioners failed to establish eligibility for
relief based on the birth of their children. Id.
Finally, we find no merit in petitioners’ argument that
the IJ violated their due process rights. Although we will
remand “when an IJ’s conduct results in the appearance of
bias or hostility such that we cannot conduct a meaningful
review of the decision below,” Islam v. Gonzales, 469 F.3d
4
53, 55 (2d Cir. 2006), the conduct Petitioners describe does
not rise to that level. While we agree with the agency that
some of the IJ’s comments, particularly regarding the birth
of petitioners’ children and petitioners’ decision to send
their children to China, were “unduly critical in tone,” we
have reviewed the transcript of the proceedings and do not
find that these comments demonstrate such bias or hostility
that we cannot conduct a meaningful review. See Francolino
v. Kuhlman, 365 F.3d 137, 143-44 (2d Cir. 2004)
(“‘[E]xpressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what imperfect
men and women . . . sometimes display’ do not establish bias
or partiality.”) (quoting Liteky v. United States, 510 U.S.
540, 555-56, 114 S. Ct. 1147, 127 L. Ed.2d 474 (1994)); see
also Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.
2003) (“Although the language used by the IJ during the
hearing . . . does reflect an annoyance and dissatisfaction
with Abdulrahman’s testimony that is far from commendable,
[it] do[es] not rise . . . to a violation of due process.”);
cf. Guo-Le Huang v. Gonzales, 453 F.3d 142, 148 (2d Cir.
2006) (ordering remand “because of the IJ’s apparent bias
and hostility toward” the petitioner).
5
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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