Qing Yuan Lin v. Holder ( 2013 )

11-3547
Lin v. Holder
BIA
Vomacka, IJ
A079 419 194
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of March, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT A. KATZMANN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 QING YUAN LIN,
15 Petitioner,
16 11-3547
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
25
26 FOR PETITIONER: Vlad Kuzmin, Kuzmin & Associates,
27 P.C., New York, New York.
28
29
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; Leslie McKay,
3 Assistant Director; Christopher
4 Buchanan, Trial Attorney, Office of
5 Immigration Litigation, Civil
6 Division, United States Department
7 of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner, Qing Yuan Lin, a native and citizen of
14 China, seeks review of a July 28, 2011, decision of the BIA
15 affirming the September 16, 2009, decision of Immigration
16 Judge (“IJ”) Alan A. Vomacka denying his application for
17 asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). In re Qing Yuan Lin,
19 No. A079 419 194 (B.I.A. July 28, 2011), aff’g No. A079 419
20 194 (Immig. Ct. N.Y. City Sept. 16, 2009). We assume the
21 parties’ familiarity with the underlying facts and
22 procedural history of the case.
23 Under the circumstances of this case, we review the
24 IJ’s decision as modified by the BIA. See Xue Hong Yang v.
25 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
26 Accordingly, because the BIA explicitly declined to consider
2
1 the IJ’s adverse credibility determination, we assume,
2 without deciding, that Lin was credible. Yan Chen v.
3 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
4 standards of review are well-established. See 8 U.S.C.
5 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
6 510, 513 (2d Cir. 2009); Mirzoyan v. Gonzales, 457 F.3d 217,
7 221 (2d Cir. 2006).
8 I. Family Planning Claim
9 As the agency concluded, Lin was not eligible for
10 asylum solely on the basis of his wife’s forced
11 sterilization. See Shi Liang Lin v. U.S. Dep’t of Justice,
12 494 F.3d 296, 309-10 (2d Cir. 2007). He could still qualify
13 for asylum or withholding of removal by demonstrating that:
14 (1) he engaged in “other resistance” to the family planning
15 policy; and (2) he suffered harm rising to the level of
16 persecution, or he had a well-founded fear or likelihood of
17 suffering such harm as a direct result of his resistance.
18 See id. at 313; see also 8 U.S.C. § 1101(a)(42); 8 C.F.R.
19 § 1208.16(b).
20 The BIA assumed that Lin had engaged in resistance to
21 China’s family planning policy, but reasonably determined
22 that he did not establish harm rising to the level of
3
1 persecution based on fines imposed. An applicant alleging
2 that he has suffered economic persecution must make at least
3 a showing of a “deliberate imposition of a substantial
4 economic disadvantage.” Guan Shan Liao v. U.S. Dep’t of
5 Justice, 293 F.3d 61, 67 (2d Cir. 2002). Economic
6 persecution includes “the deliberate imposition of a severe
7 economic disadvantage or the deprivation of liberty, food,
8 housing, employment or other essentials of life,” Matter of
9 T-Z-, 24 I. & N. Dec. 163, 171 (BIA 2007) (quotation marks
10 and citation omitted), though an applicant “need not
11 demonstrate a total deprivation of livelihood or a total
12 withdrawal of all economic opportunity in order to
13 demonstrate harm amounting to persecution,” id. at 173. As
14 the agency concluded, Lin presented no evidence regarding
15 his net worth in China or in the United States, or that the
16 fines had a negative impact on his life. He therefore
17 failed to show that the fines were a severe burden. See
18 Guan Shan Liao, 293 F.3d at 70.
19 Nor did the agency err in finding no objectively
20 reasonable fear of future persecution because Lin admitted
21 that, after he refused to pay the fine, he remained unharmed
22 in China for more than six years and that his family remains
23 there unharmed more than fourteen years later. See Melgar
4
1 de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). Since
2 Lin failed to demonstrate either past persecution or a well-
3 founded fear of persecution, the agency reasonably denied
4 him asylum, withholding of removal, and CAT relief insofar
5 as those claims were based on the same factual predicate.
6 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
7 II. Illegal Departure Claim
8 Lin did not establish his eligibility for CAT relief
9 based on his illegal departure from China. An alien is not
10 “entitled to CAT protection based solely on the fact that
11 []he is part of the large class of persons who have
12 illegally departed China,” and Lin failed to submit
13 particularized evidence suggesting that he is likely to be
14 imprisoned and subject to torture in China. Mu Xiang Lin v.
15 U.S. Dep’t of Justice, 432 F.3d 156, 157-60 (2d Cir. 2005).
16 (emphasis in original)
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6