Chang Le Lin v. Holder , 467 F. App'x 68 ( 2012 )

10-2011-ag
Lin v. Holder
BIA
Elstein, IJ
A093 396 998
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 21st day of March, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 CHANG LE LIN,
14 Petitioner,
15
16 10-2011-ag
17 v. NAC
18
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Thomas V. Massucci, New York, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Lyle D. Jentzer, Senior
30 Litigation Counsel; Edward J. Duffy,
31 Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED in part and DENIED in part.
9 Petitioner, Chang Le Lin, a native and citizen of
10 China, seeks review of an April 23, 2010, decision of the
11 BIA affirming the May 5, 2008, decision of Immigration Judge
12 (“IJ”) Annette S. Elstein denying his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Chang Le Lin, No.
15 A093 396 998 (B.I.A. April 23, 2010), aff’g No. A093 396
16 998 (Immig. Ct. N.Y. City May 5, 2008). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history of the case.
19 Under the circumstances of this case, we have reviewed
20 both the IJ’s and the BIA’s opinions “for the sake of
21 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
22 2008). The applicable standards of review are well-
23 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
24 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 As an initial matter, we lack jurisdiction to review
2 the agency’s pretermission of Lin’s asylum application as
3 untimely because Lin challenges only the IJ’s factual
4 findings regarding when and where he arrived in the United
5 States. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji
6 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326-29 (2d Cir.
7 2006) (holding that a question of law is not implicated
8 “when the petition for review essentially disputes the
9 correctness of the IJ’s fact-finding”). Thus, we dismiss
10 Lin’s petition for review with respect to his asylum claim.
11 Because Lin does not challenge the denial of CAT relief, we
12 address only the agency’s denial of withholding of removal.
13 The agency did not err in concluding that Lin failed to
14 meet his burden of proof in demonstrating that he suffered
15 persecution or faced a likelihood of persecution on account
16 of his “other resistance” to China’s family planning policy.
17 Lin was not per se eligible for asylum solely on the basis
18 of his wife’s forced sterilization, but he could have
19 qualified for relief by demonstrating that: (1) he engaged
20 in “other resistance” to the family planning policy; and
21 (2) he suffered harm rising to the level of persecution or
22 has a well-founded fear of suffering such harm as a direct
23 result of his resistance. See Shi Liang Lin v. U.S. Dep’t
3
1 of Justice, 494 F.3d 296, 309-310, 313 (2d Cir. 2007). The
2 agency reasonably found, however, that the harms Lin
3 allegedly suffered did not constitute persecution. The
4 agency reasonably determined that Lin’s physical
5 mistreatment did not constitute past persecution, as Lin was
6 not detained at the time, and acknowledged that he did not
7 need to seek any medical treatment. Ivanishvili v. U.S.
8 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (holding
9 that “the difference between harassment and persecution is
10 necessarily one of degree that must be decided on a case-by-
11 case basis”); Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d
12 Cir. 2011) (holding that a minor beating by family planning
13 officials prior to arrest and detention by police, and
14 carried out without any intention to arrest or detain, need
15 not constitute persecution).
16 In addition, the agency reasonably determined that the
17 fine imposed on Lin and his wife for their violation of the
18 family planning policy did not constitute persecution, as
19 Lin did not argue or present evidence of any economic
20 disadvantage or deprivation suffered as a result of the
21 fine. See Matter of T-Z-, 24 I. & N. Dec. 163, 170-71 (BIA
22 2007) (defining persecution as including “the deliberate
23 imposition of a severe economic disadvantage or the
4
1 deprivation of liberty, food, housing, employment or other
2 essentials of life.”); see also Guan Shan Liao v. U.S. Dep’t
3 of Justice, 293 F.3d 61, 67 (2d Cir. 2002) (requiring at
4 least a showing of a “deliberate imposition of a substantial
5 economic disadvantage”).
6 Thus, because Lin does not present any argument, apart
7 from past harm, as to why he would face persecution upon
8 return to China, the agency reasonably determined that he
9 did not establish his eligibility for withholding of
10 removal. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178,
11 183-86 (2d Cir. 2004).
12 For the foregoing reasons, the petition for review is
13 DISMISSED in part and DENIED in part. As we have completed
14 our review, any stay of removal that the Court previously
15 granted in this petition is VACATED, and any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
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