Shunfu Jin v. Holder ( 2014 )

12-4554
Jin v. Holder
BIA
A089 918 900
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 13th day of February, two thousand fourteen.
PRESENT:
RICHARD C. WESLEY,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
SHUNFU JIN,
Petitioner,
v. 12-4554
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Guang Jun Gao, Flushing, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Christina Bechak
Parascandola, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DISMISSED in part and DENIED in part.
Shunfu Jin, a native and citizen of China, seeks review
of an October 25, 2012, decision of the BIA affirming the
August 3, 2011, decision of Immigration Judge (“IJ”) Robert
Weisel, denying Jin’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Shunfu Jin, No. A089 918 900 (B.I.A. Oct.
25, 2012), aff’g No. A089 918 900 (Immig. Ct. N.Y. City Aug.
3, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See 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); Yanqin Weng v. Holder, 562 F.3d
510, 513-14 (2d Cir. 2009).
We lack jurisdiction to review the agency’s
determination that Jin’s asylum application is untimely, see
8 U.S.C. § 1158(a)(2)(B), or the agency’s finding that
untimeliness has not been excused by changed or
extraordinary circumstances, see 8 U.S.C. § 1158(a)(2)(D).
Notwithstanding these provisions, however, we retain
jurisdiction to review “constitutional claims or questions
of law.” 8 U.S.C. § 1252(a)(2)(D). Jin does not dispute
the agency’s determination that she failed to file her
asylum application within one year of her arrival in the
United States but challenges the BIA’s determination that
there was insufficient factual support for an ineffective
assistance of counsel claim based on Jin’s meeting with
unidentified attorneys. Jin’s challenge to the BIA’s
determination, therefore, is not a colorable constitutional
claim as it merely disputes the BIA’s factual findings.
Furthermore, although Jin’s brief identifies the
requirements for raising an ineffective assistance of
counsel claim, as described in In re Lozada, 19 I. & N. 637
(BIA 1988), there is no assertion or evidence suggesting
that Jin complied with these requirements.
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Jin has also failed to show any error in the agency’s
determination that she did not prove past persecution or a
probability of future harm as required for withholding of
removal or CAT relief.
The record establishes that Jin assisted a North Korean
refugee, was detained for 15 days, and fined 4,000 RMB. At
no time was Jin physically harmed or threatened by
authorities. These allegations are insufficient to
establish past persecution. See Jian Qui Liu v. Holder, 632
F.3d 820, 822 (2d Cir. 2011)(per curiam) (holding that
petitioner failed to establish persecution where “he
suffered only minor bruising from an altercation with family
planning officials, which required no formal medical
attention and had no lasting physical effect”); Ivanishvili
v. U.S. DOJ, 433 F.3d 332, 341 (2d Cir. 2006) (defining
persecution).
As to future persecution, Jin argues on appeal that she
may be persecuted in China due to imputed political opinion.
Jin’s testimony, however, undercuts this argument; she
stated that she joined an association to help North Korean
refugees, yet no Chinese officials contacted her. Thus,
there is no indication that Chinese officials knew of Jin’s
connection to the association or that she was persecuted by
officials because of an imputed political belief. Hongsheng
Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)(per
curiam) (“[T]o establish a well-founded fear of persecution
in the absence of any evidence of past persecution, an alien
must make some showing that authorities in his country of
nationality are either aware of his activities or likely to
become aware of his activities.”). Furthermore, after Jin
left China, her family was contacted only once by police in
2004. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128-29
(2d Cir. 2005)(per curiam) (concluding that “absen[t] solid
support in the record” a fear of persecution is “speculative
at best”). As Jin has not shown a “clear probability” of
persecution or torture, the agency properly denied her
request for withholding of removal and CAT relief.
Hongsheng Leng, 528 F.3d at 143; Mu Xiang Lin v. U.S. Dep’t
of Justice, 432 F.3d 156, 160 (2d Cir. 2005) (stating that
particularized evidence showing the likelihood of torture is
necessary to establish eligibility for CAT protection).
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For the foregoing reasons, the petition for review is
DISMISSED, in part, and DENIED, in part. 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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