Tuan Lin v. Lynch ( 2015 )

13-2873
Lin v. Lynch
BIA
Hom, IJ
A200 701 917
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
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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.
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 30th day of July, two thousand fifteen.
PRESENT:
JOHN M. WALKER, JR.,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
TUAN LIN,
Petitioner,
v. 13-2873
NAC
Loretta E. Lynch, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lewis G. Hu, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Edward J. Duffy, Senior
Litigation Counsel; Katherine A.
Smith, 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 DENIED.
Tuan Lin, a native and citizen of China, seeks review
of a July 2, 2013, decision of the BIA affirming an
Immigration Judge’s (“IJ”) October 28, 2011, denial of
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Tuan Lin, No.
A200 701 917 (B.I.A. July 2, 2013), aff’g No. A200 701 917
(Immig. Ct. N.Y. City Oct. 28, 2011). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
The resolution of Lin’s petition rests largely on our
scope of review. Where the BIA modifies the IJ’s decision,
we review the IJ’s decision as modified, i.e., minus the
findings not addressed or affirmed by the BIA. Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2005). The only issues reached by the BIA were the lack of
corroboration supporting Lin’s testimony and whether Lin was
deprived of due process during his hearing. Lin references
the corroboration finding once, stating the IJ’s “blanket
rejection of all Petitioner’s written evidence[]” deprived
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him of due process, but provides no further explanation or
specific arguments regarding corroboration. Consequently,
any challenges to the specific corroboration findings are
forfeited. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7
(2d Cir. 2005) (providing that issues not sufficiently
addressed in the briefs are forfeited).
Accordingly, the only issue to be addressed is Lin’s
due process argument. Lin argues that his due process
rights were violated when the IJ questioned him about his
ability to leave China using his own passport. Due process
requires that, “[a]t a minimum, [an alien] must be afforded
the opportunity to be heard at a meaningful time and in a
meaningful manner . . . by an impartial and disinterested
tribunal,” free from “the appearance of bias or hostility.”
Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (citations
and internal quotations omitted). To establish a due
process violation, an alien must show prejudice arising from
the alleged violation. Garcia-Villeda v. Mukasey, 531 F.3d
141, 149 (2d Cir. 2008). While the record shows that the IJ
asked Lin questions about how he was able to leave China
when an arrest warrant had allegedly been issued and ruled
that Lin’s testimony on this point was not credible, the BIA
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did not affirm or adopt this ruling, nor did it factor into
the denial of relief. Indeed, the BIA explicitly stated
that it agreed with the IJ’s decision “even if [Lin]
testified credibly.” Consequently, Lin’s due process claim
is meritless because he cannot show prejudice. Garcia-
Villeda, 531 F.3d at 149.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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