08-4215-ag
Lin v. Holder
BIA
Nelson, IJ
A200 037 104
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 6 th day of January, two thousand ten.
5 PRESENT:
6 ROGER J. MINER,
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 Circuit Judges.
10 _______________________________________
11
12 YUE PING LIN,
13 Petitioner,
14 v. 08-4215-ag
15 NAC
16 ERIC H. HOLDER, JR., UNITED STATES
17 ATTORNEY GENERAL, *
18 Respondent.
19 _______________________________________
*
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.
1 FOR PETITIONER: Feng Li, Law Offices of Fengling
2 Liu, New York, New York.
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; Carl H. McIntyre Jr.,
5 Assistant Director; Regina Byrd,
6 Attorney, Office of Immigration
7 Litigation, United States Department
8 of Justice, Washington, D.C.
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 Yue Ping Lin, a native and citizen of the People’s
14 Republic of China, seeks review of a July 30, 2008 order of
15 the BIA, affirming the October 2, 2007 decision of
16 Immigration Judge (“IJ”) Barbara A. Nelson, which denied his
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Yue
19 Ping Lin, No. A200 037 104 (B.I.A. July 30, 2008), aff’g No.
20 A200 037 104 (Immig. Ct. N.Y. City Oct. 2, 2007). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 When the BIA adopts the decision of the IJ and
24 supplements the IJ’s decision, we review the decision of the
25 IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
2
1 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
2 factual findings under the substantial evidence standard.
3 See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey,
4 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions
5 of law and the application of law to undisputed fact.
6 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
7 As an initial matter, despite Lin’s failure to raise to
8 the BIA his argument that he demonstrated his eligibility
9 for asylum and withholding of removal on account of his
10 resistance to China’s family planning policy, see 8 U.S.C.
11 § 1101(a)(42), we consider such argument exhausted because
12 the BIA addressed that issue on appeal. See Theodoropoulos
13 v. INS, 358 F.3d 162, 171 (2d Cir. 2004); see also Xian Tuan
14 Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir. 2006) (per curiam).
15 Nonetheless, the BIA did not err in finding that Lin
16 failed to demonstrate past persecution based on his claim of
17 resistance to the family planning policy. See Shi Liang Lin
18 v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d Cir. 2007)
19 (en banc). The BIA has defined “resistance” in the context
20 of family planning to cover “a wide range of circumstances,
21 including expressions of general opposition, attempts to
22 interfere with enforcement of government policy in
3
1 particular cases, and other overt forms of resistance to the
2 requirements of the family planning law.” Matter of
3 S-L-L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006); see also Shi
4 Liang Lin, 494 F.3d at 313. Impregnating one’s partner, who
5 subsequently was forcibly sterilized, is not alone an act of
6 resistance. See Shi Liang Lin, 494 F.3d at 313 (citing Ru-
7 Jian Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir. 2004)).
8 Thus, contrary to Lin’s assertion, having two children in
9 violation of the family planning policy is not an act of
10 resistance to the family planning policy. See Shi Liang
11 Lin, 494 F.3d at 313.
12 Even assuming that Lin established “resistance,” the
13 BIA did not err in finding that he failed to allege harm
14 amounting to persecution on account of that resistance. See
15 id. Indeed, contrary to Lin’s assertion, he did not
16 demonstrate his eligibility for relief based on his claim of
17 economic persecution because he did not provide any evidence
18 establishing that the fines imposed caused him “severe
19 economic disadvantage.” Matter of T-Z-, 24 I. & N. Dec.
20 163, 170-75 (B.I.A. 2007); see also Guan Shan Liao v. U.S.
21 Dep’t. of Justice, 293 F.3d 61, 70 (2d Cir. 2002).
22 Likewise, Lin’s assertion that he suffered an emotional loss
4
1 as a result of his wife’s forced sterilization does not
2 demonstrate that he suffered harm rising to the level of
3 persecution. See Shi Liang Lin, 494 F.3d at 309
4 (recognizing “that an individual whose spouse undergoes, or
5 is threatened with, a forced abortion or involuntary
6 sterilization may suffer a profound emotional loss as a
7 partner and a potential parent,” but does not suffer
8 persecution on account of a protected ground solely on
9 account of such forced abortion or involuntary
10 sterilization).
11 Accordingly, the agency reasonably concluded that Lin
12 failed to establish that he suffered any independent,
13 personal persecution qualifying him for relief. Id.
14 Moreover, Lin fails to challenge the agency’s determination
15 that he did not demonstrate a well-founded fear of future
16 persecution because his only “argument” regarding this
17 assertion is a single conclusory sentence. See Yueqing
18 Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7 By:___________________________
6