10-3365
Lin v. Sessions
BIA
Sichel, IJ
A099 427 631
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 TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of October, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
PIERRE N. LEVAL,
Circuit Judges.
_____________________________________
XIA LIN,
Petitioner,
v. 10-3365
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Theodore N. Cox, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Shelley R. Goad,
Assistant Director; Kristen
Giuffreda Chapman, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of two
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Xia Lin, a native and citizen of China, seeks
review of (1) a February 19, 2009, decision of the BIA that
reversed the January 23, 2007, decision of an Immigration Judge
(“IJ”) granting asylum, In re Xia Lin, No. A099 427 631 (B.I.A.
Feb. 19, 2009), rev’g No. A099 427 631 (Immig. Ct. N.Y. City
Jan. 23, 2007), and (2) a July 26, 2010, decision of the BIA
that denied her motion to remand, In re Xia Lin, No. A099 427
631 (B.I.A. July 26, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
As an initial matter, contrary to the Government’s
contention, we have jurisdiction to review both of the BIA’s
decisions. In Alibasic v. Mukasey, we held that the Court has
jurisdiction to review, as a final order of removal, a BIA
decision denying relief from removal and remanding solely for
consideration of voluntary departure. 547 F.3d 78, 83-84 (2d
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Cir. 2008). We did not hold that an alien is required to
petition for review of such decisions at the time they are issued
rather than wait to petition until the completion of removal
proceedings on remand. See id.; see also INS v. St. Cyr, 533
U.S. 289, 313 (2001) (referring to 8 U.S.C. § 1252(b)(9) as a
“zipper clause” that provides for consolidation in one action
in the court of appeals of questions of law and fact arising
in removal proceedings).
The standards of review for both decisions are well
established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
157-58, 168-69 (2d Cir. 2008); see also Wu Lin v. Lynch, 813
F.3d 122, 129 (2d Cir. 2016). Lin applied for asylum,
withholding of removal, and relief under the Convention Against
Torture, and later moved to reopen removal proceedings,
asserting a fear of persecution based on the birth of her
children in the United States purportedly in violation of
China’s population control program.
For largely the same reasons as this Court set forth in Jian
Hui Shao, 546 F.3d at 156-73, we find no error in the BIA’s
determination on de novo review that Lin failed to satisfy her
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burden of establishing an objectively reasonable well founded
fear of persecution.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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