Yong Lin v. Holder ( 2012 )

10-2386-ag
Lin v. Holder
BIA
Vomacka, IJ
A098 997 995
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 8th day of May, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 YONG LIN,
14 Petitioner,
15
16 v. 10-2386-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL; UNITED STATES
20 DEPARTMENT OF JUSTICE,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: WaiSim M. Cheung, New York, New
25 York.
26
27 FOR RESPONDENTS: Tony West, Assistant Attorney
28 General; Terri J. Scadron, Assistant
29 Director; Shahrzad Baghai, Trial
30 Attorney, Office of Immigration
31 Litigation, Civil Division, United
32 States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Yong Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a May 21, 2010,
7 order of the BIA affirming the July 22, 2008, decision of
8 Immigration Judge (“IJ”) Alan A. Vomacka, denying his
9 applications for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Yong
11 Lin No. A098 997 995 (B.I.A. May 21, 2010), aff’g No. A098
12 997 995 (Immig. Ct. N.Y. City July 22, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA decision. See Xue
17 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
18 Cir. 2005). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 The agency reasonably concluded that Lin failed to meet
22 his burden of demonstrating a well-founded fear of future
23 persecution based on his violation of China’s family
24 planning policy. The BIA reasonably found that Lin’s
2
1 testimony alone, even if credible, was insufficient to
2 support his claim because he omitted from his asylum
3 application his assertion that officials in China were
4 searching for him and had questioned his wife about his
5 whereabouts. See 8 U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v.
6 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“[t]he absence
7 of corroboration in general makes an applicant unable to
8 rehabilitate testimony that has already been called into
9 question.”); Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d
10 Cir. 2009). Moreover, as the BIA found, none of Lin’s
11 evidence, including letters from his ex-wife and his
12 parents, mentioned that government officials had learned
13 that he had divorced for the purpose of avoiding the family
14 planning rules or that the officials were looking for him.
15 See Chuilu, 575 F.3d at 196-97 (providing that corroboration
16 should be provided where “it would reasonably be expected”
17 even where testimony is credible).
18 To the extent Lin argues that the BIA erred by failing
19 to specify additional evidence he should have provided, the
20 burden rested with him to provide all available
21 corroborating evidence, and he provided no explanation as to
22 why the letters from his wife and parents did not show that
3
1 officials were aware of the divorce. See Chuilu Liu, 575
2 F.3d at 198 n.6 (stating that the alien bears the ultimate
3 burden of introducing such evidence without prompting from
4 the IJ). We have held that the agency’s designation of
5 missing corroboration need not be done prior to the
6 disposition of an alien’s claim. See Chuilu, 575 F.3d at
7 198-99; see also 8 U.S.C. § 1158(b)(1)(B)(ii)(REAL ID Act
8 provision codifying the rule that an IJ, weighing the
9 evidence to determine if the alien has met his burden, may
10 rely on the absence of corroborating evidence adduced by an
11 otherwise credible applicant unless such evidence cannot be
12 reasonably obtained). Accordingly, as the BIA concluded,
13 Lin failed to establish a well-founded fear of persecution
14 because he did not sufficiently corroborate his claim that
15 Chinese officials were aware of his “sham” divorce or were
16 searching for him. See Chuilu, 575 F.3d at 196-97; Jian
17 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
18 (providing that a fear is not objectively reasonable if it
19 lacks “solid support” in the record and is merely
20 “speculative at best”).
21 The agency also reasonably determined that Lin did not
22 establish a well-founded fear of persecution based on his
4
1 baptism and practice of Christianity in the United States
2 because Lin testified that he was a relatively new
3 practitioner and evidence in the record indicated that
4 officials primarily targeted spiritual leaders. See
5 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)
6 (“Put simply, to establish a well-founded fear of
7 persecution in the absence of any evidence of past
8 persecution, an alien must make some showing that
9 authorities in his country of nationality are either aware
10 of his activities or likely to become aware of his
11 activities.); see also Jian Xing Huang, 421 F.3d 125 at 128-
12 29. The agency also reasonably determined that Lin had not
13 established a pattern or practice of persecution against
14 Christians in China because the country conditions evidence
15 in the record indicated that enforcement against underground
16 churches varied throughout China and the Chinese
17 government’s treatment of members of underground churches
18 constituted harassment rather than persecution. See Siewe
19 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“[w]here
20 there are two permissible views of the evidence, the fact
21 finder’s choice between them cannot be clearly erroneous.”);
22 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
23 Cir. 2006) (holding that harm must be sufficiently severe
5
1 and rise above “mere harassment”); see also Fatin v. INS, 12
2 F.3d 1233, 1240 (3d Cir. 1993) (“[P]ersecution does not
3 encompass all treatment that our society regards as unfair,
4 unjust, or even unlawful or unconstitutional.”).
5 Because Lin failed to establish his eligibility
6 for asylum, he necessarily was unable to meet the higher
7 standard to establish his eligibility for withholding of
8 removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
9 2006). Lin has not challenged the agency’s denial of CAT
10 relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
11 n.1, 545 n.7 (2d Cir. 2005) (providing that issues not
12 sufficiently argued in the briefs are considered waived and
13 normally will not be addressed on appeal).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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