Ping Lin v. Holder ( 2010 )

09-1997-ag
Lin v. Holder
BIA
Hladylowycz, IJ
A072 329 089
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27 th day of July, two thousand ten.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_______________________________________
PING LIN,
Petitioner,
v. 09-1997-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Ping Lin, pro se, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Keith I. McManus, Senior
Litigation Counsel, P. Michael
Truman, 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. The pending motion to proceed in forma
pauperis is DENIED as moot because the filing fee has
already been paid. The pending motion to file fewer copies
and be exempted from submitting a joint appendix is GRANTED.
Ping Lin, a native and citizen of the People’s Republic
of China, seeks review of a May 8, 2009 order of the BIA,
affirming the September 9, 2002 decision of Immigration
Judge (“IJ”) Roxanne C. Hladylowycz, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Ping
Lin, No. A072 329 089 (B.I.A. May 8, 2009), aff’g No. A072
329 089 (Immig. Ct. N.Y. City Sept. 9, 2002). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the
BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d
619, 622-23 (2d Cir. 2007). The applicable standards of
review are well-established. See Corovic v. Mukasey, 519
2
F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529
F.3d 99, 110 (2d Cir. 2008).
Substantial evidence supports the BIA’s determination
that Lin failed to demonstrate her eligibility for asylum or
withholding of removal based on her claim that she was
forced to use an intrauterine device (“IUD”). As we
observed in Xia Fan Huang v. Holder, 591 F.3d 124, 129-30
(2d Cir. 2010), the BIA’s determination that forced IUD
insertion is not a per se form of persecution is entitled to
deference. Moreover, the record does not compel the
conclusion that Lin demonstrated “aggravating circumstances”
sufficient to render the insertion of her IUD persecutive.
See id.; see also Matter of M-F-W- & L-G-, 24 I. & N. Dec.
633, 639-42 (B.I.A. 2008).
No different conclusion is warranted with respect to
the BIA’s finding that the fine imposed on Lin following the
birth of her third child did not constitute persecution.
See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70
(2d Cir. 2002). Although imposition of a fine may, under
some circumstances, constitute persecution, see Guan Shan
Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir.
2002), Lin testified that she could afford to pay the fine
3
but simply chose not to do so. On this record, the BIA was
not compelled to conclude that the fine placed her at such a
“substantial economic disadvantage” as to render the fine
persecutive. 1 Id.Because substantial evidence supports the BIA’s
determination that Lin failed to demonstrate that she
suffered past persecution, she was not entitled to a
presumption of a well-founded fear or likelihood of future
persecution. See 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1).
Nor do we identify any basis for concluding that the BIA’s
determination that Lin failed to prove a well-founded fear
of persecution on account of giving birth to three children
was unsupported. See Jian Xing Huang v. INS, 421 F.3d 125,
129 (2d Cir. 2005) (holding that an applicant’s well-founded
fear claim was “speculative at best” when he failed to
present “solid support” that he would be subject to the
family planning policy upon his return to China); see also
Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008).
1
Although the BIA erred in concluding that Lin
suffered no repercussions from her failure to pay the
fine at issue, remand would be futile because the record
does not support the conclusion that the fine or any
repercussions from Lin’s failure to pay the fine rise to
the level of persecution. See Xiao Ji Chen v. U.S. Dep't
of Justice, 471 F.3d 315, 338-40 (2d Cir.2006).
4
Contrary to Lin’s argument that the BIA engaged in
impermissible fact-finding in concluding that she failed to
prove a well-founded fear of persecution, the BIA was
entitled to review de novo whether Lin was eligible for
relief based on the evidence in the record. See Jian Hui
Shao, 546 F.3d at 162-63 (concluding that the BIA did not
erroneously conduct de novo review of the IJ’s factual
findings by making “a legal determination that, while
[petitioners’] credible testimony was sufficient to
demonstrate a genuine subjective fear of future persecution,
more was needed to demonstrate the objective reasonableness
of that fear”). At the time of the BIA’s decision, the
record indicated that Lin (1) had a third child because her
first two children were girls; (2) voluntarily used
contraception thereafter; and (3) was a 46-year-old widow
not actively seeking to remarry. 2 As the BIA noted, the
2
The BIA erred in concluding that Lin did not
express a desire to have more children. However, in
light of Lin’s age and marital status – which the BIA was
entitled to consider, see May 25, 2007 Stipulation and
Order – we conclude that remand on this basis would be
futile. See Xiao Ji Chen v. U.S. Dep't of Justice, 471
F.3d 315, 338-40 (2d Cir.2006). Although Lin also
contends that the BIA erred in concluding that her age
indicated that she was nearing the end of her
childbearing years, the evidence upon which she relies –
a news article regarding a Spanish woman who allegedly
gave birth to twins at age 69 – was not part of the
5
record also gave no indication that Chinese authorities had
inquired about Lin in over 20 years. See Jian Xing Huang,
421 F.3d at 129. In light of the foregoing, the BIA’s
conclusion that Lin did not demonstrate a well-founded fear
of future persecution was supported by substantial evidence.
On this record, the agency properly denied Lin’s
application for asylum. See 8 U.S.C. § 1101(a)(42). As Lin
was unable to show the objective likelihood of persecution
needed to make out an asylum claim, she was necessarily
unable to meet the higher standard required to succeed on a
claim for withholding of removal because that claim rested
on the same factual predicate. See Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006). 3
Accordingly, the petition for review is DENIED. The
pending motion to proceed in forma pauperis is DENIED as
moot because the filing fee has already been paid. The
pending motion to file fewer copies and be exempted from
administrative record and is therefore not properly
considered on appeal. See 8 U.S.C. § 1252(b)(4)(A)
(stating that “court of appeals shall decide the petition
only on the administrative record on which the order of
removal is based”).
3
Lin does not challenge the BIA’s denial of her
request for CAT relief in her brief. The argument is
therefore waived. See Norton v. Sam’s Club, 145 F.3d
114, 117 (2d Cir. 1998).
6
submitting a joint appendix is GRANTED. As we have completed
our review, the pending motion for a stay of removal is
DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7