Lin v. Sessions

16-3290
Lin v. Sessions
BIA
Hom, IJ
A205 722 838
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
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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 6th day of April, two thousand eighteen.

PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________

LI JIE LIN, AKA LI LIN,
AKA LIJIE LIU,
Petitioner,

v. 16-3290
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: Li Jie Lin, pro se, Alhambra, CA.

FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Emily Anne
Radford, Assistant Director; Brett
F. Kinney, Trial Attorney; Laura
M. Cover, Law Clerk, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
 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 Li Jie Lin, a native and citizen of the

People’s Republic of China, seeks review of an August 31,

2016 decision of the BIA affirming a January 26, 2015

decision of an Immigration Judge (“IJ”) denying Lin’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Li Jie

Lin, No. A 205 722 838 (B.I.A. Aug. 31, 2016), aff’g No. A

205 722 838 (Immig. Ct. N.Y. City Jan. 26, 2015). We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

I. Denial of a Continuance or Remand to Obtain Evidence

We review an IJ’s denial of a continuance and the BIA’s

denial of remand for abuse of discretion. See Sanusi v.

Gonzales, 445 F.3d 193, 199 (2d Cir. 2006)(per curiam)

(continuance); Li Yong Cao v. U.S. Dep’t of Justice, 421

F.3d 149, 157 (2d Cir. 2005) (remand). “An abuse of

discretion may be found . . . where the [agency’s] decision

provides no rational explanation, inexplicably departs from

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established policies, is devoid of any reasoning, or

contains only summary or conclusory statements; that is to

say, where the [agency] has acted in an arbitrary or

capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice,

265 F.3d 83, 93 (2d Cir. 2001) (internal citations

omitted). An IJ may grant a continuance for “good cause

shown.” 8 C.F.R. § 1003.29. “IJs are accorded wide

latitude in calendar management, and we will not

micromanage their scheduling decisions any more than when

we review such decisions by district judges.” Morgan v.

Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).

We also review for abuse of discretion an agency’s

enforcement of filing deadlines for the submission of

evidence. Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.

2008). As with calendaring, an IJ, like a district judge,

has broad discretion to set and enforce filing deadlines.

Id. at 192. The agency’s rules provide that “[i]f an

application or document is not filed within the time set by

the [IJ], the opportunity to file that application or

document shall be deemed waived.” 8 C.F.R. § 1003.31(c).

Under the abuse of discretion standard, Lin’s challenges

to the denial of a continuance and remand fail. On November

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22, 2013, the IJ informed Lin and his counsel that evidence

was due on February 3, 2014, giving Lin two months to collect

it. Lin did not request an extension before the deadline.

A month after the deadline had passed, and less than a week

before the March 18, 2014 merits hearing, Lin moved for a

change of venue or, alternatively, a continuance, citing his

counsel’s schedule. Lin’s request for a continuance did not

suggest that any documentation he sought would have been

unavailable to him by the deadline had he sought it in a

timely fashion. Further, although Lin’s new counsel requested

a continuance at the merits hearing, emphasizing that he had

been retained the day before, Lin had been on notice of the

hearing date and document submission deadline for over two

months. In the absence of good cause for the delay, the

IJ did not abuse his discretion by declining to continue the

case and the BIA reasonably declined to remand the case. See

8 C.F.R. § 1003.29; Morgan, 445 F.3d at 553. Moreover, Lin

waived his opportunity to file evidence by not submitting it

by February 3 and the agency did not abuse its discretion by

enforcing that deadline. See 8 C.F.R. § 1003.31(c); Dedji,

525 F.3d at 192.

Lin’s remaining arguments on this point are meritless.

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His attorney at the initial hearing consented to the March

2014 hearing date. And his arguments that his first attorney

failed to advise him regarding document collection is

unsuccessful because he did not raise, or comply with the

procedural requirements for, an ineffective assistance of

counsel claim. Jian Yun Zheng v. U.S. Dep't of Justice, 409

F.3d 43, 46-47 (2d Cir. 2005).

II. Merits

Under the circumstances of this case, we review the

decisions of both the IJ and BIA. Ming Xia Chen v. BIA, 435

F.3d 141, 144 (2d Cir. 2006). The applicable standards of

review are well established. See 8 U.S.C. § 1252(b)(4)(B);

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

There is no error in the agency’s conclusion that Lin

failed to meet his burden of proof. Although “consistent,

detailed, and credible testimony may be sufficient to carry

the alien’s burden, evidence corroborating his story, or an

explanation for its absence, may be required where it would

reasonably be expected.” Diallo v. INS, 232 F.3d 279, 285

(2d Cir. 2000). “Where the trier of fact determines that

the applicant should provide evidence that corroborates

otherwise credible testimony, such evidence must be

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provided unless the applicant does not have the evidence

and cannot reasonably obtain the evidence.” 8 U.S.C.

§ 1158(b)(1)(B)(ii); see Chuilu Liu v. Holder, 575 F.3d

193, 197 (2d Cir. 2009). “No court shall reverse a

determination made by a trier of fact with respect to the

availability of corroborating evidence . . . unless the

court finds . . . that a reasonable trier of fact is

compelled to conclude that such corroborating evidence is

unavailable.” 8 U.S.C. § 1252(b)(4). Lin did not document

his alleged arrests and detentions in China, country

conditions in China, or his continuing practice of

Christianity in the United States, and, thus, as discussed

briefly below, he did not meet his burden to establish

either past persecution or a well-founded fear of future

persecution.

Past Persecution

To satisfy his burden regarding past persecution, Lin

had to show both that events occurred and that they rose to

the level of persecution. He did neither. Persecution can

consist of harm other than threats to life or freedom,

“includ[ing] non-life-threatening violence and physical

abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d

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Cir. 2006); however, the harm must be sufficiently severe,

rising above “mere harassment,” Ivanishvili v. U.S. Dep’t

of Justice, 433 F.3d 332, 341-42 (2d Cir. 2006). Not every

incident of physical violence constitutes persecution. See

Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)

(per curiam) (“We have never held that a beating that

occurs within the context of an arrest or detention

constitutes persecution per se.”).

Lin bore the burden to corroborate his asylum claim

with reasonably available documentary evidence. As the

agency found, Lin failed to corroborate his arrests,

detention, the fines paid for his release, or the extent of

any injuries. Lin does not dispute that—at a minimum—he

could have obtained statements from his parents given that

he claimed his mother was arrested with him and his father

paid the fines for their release. The lack of

corroboration made Lin unable to demonstrate that his

arrests, beating, and detentions occurred or that they were

sufficiently severe to rise to the level of persecution, as

his application and testimony included no detail about the

severity of any injuries. See Beskovic, 467 F.3d at 226

(holding that, although “the difference between harassment

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and persecution is necessarily one of degree, the degree

must be assessed with regard to the context in which the

mistreatment occurs” (internal quotation marks omitted)).

Accordingly, the evidence was not sufficient for Lin to

meet his burden of establishing past persecution. See Jian

Qiu Liu, 632 F.3d at 822 (upholding agency determination

that harm was not sufficient to state a claim where

injuries consisted of minor bruising which did not require

formal medical attention); Chuilu Liu, 575 F.3d at 198 n.5

(reasoning that “a failure to corroborate can suffice,

without more, to support a finding that an alien has not

met his burden of proof”).

Well-Founded Fear of Future Persecution

Because he did not meet his burden of showing past

persecution, Lin had the burden to demonstrate a well-

founded fear of future persecution, which is a “subjective

fear that is objectively reasonable.” Dong Zhong Zheng v.

Mukasey, 552 F.3d 277, 284 (2d Cir. 2009) (internal

quotation marks omitted); see also Y.C. v. Holder, 741 F.3d

324, 332 (2d Cir. 2013)(“For an asylum claim, the applicant

must show a reasonable possibility of future persecution.”

(internal quotation marks omitted)). As with his claim of

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past harm, Lin presented no evidence to corroborate his

claims that he would be singled out for persecution or that

there was a pattern or practice of persecution of

Christians in China. See Y.C., 741 F.3d at 332 (discussing

ways to demonstrate reasonableness of fear of future harm).

The IJ reasonably concluded that Lin failed to show a

well-founded fear of future persecution. Lin testified

that he might be arrested in China because of his practice

of Christianity. However, he produced no evidence

regarding the persecution of Christians in China or any

proof that he continued to practice Christianity in the

United States. Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 342 (2d Cir. 2006). The IJ also reasonably

declined to credit Lin’s explanation that his father had

been unable to procure evidence of his alleged arrests

because Lin’s testimony was self-serving and not

corroborated by a statement from his father. Diallo, 232

F.3d at 285. Instead, the IJ reasonably concluded that

Lin’s alleged fear of the police was speculative: the

record does not establish that the Chinese police would

single out Lin for persecution or that the authorities

target Christians in Lin’s home province. See Jian Xing

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Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per

curiam) (“In the absence of solid support in the record” a

fear of persecution is not objectively reasonable and is

“speculative at best.”). Lin’s failure to carry his burden

with respect to fear of future persecution is dispositive

of withholding of removal and CAT relief because both

“entail a greater likelihood of future persecution than

that required for the grant of asylum.” See Lecaj v.

Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).

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 of Court

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