Xue Feng Lin v. Holder ( 2011 )

10-1392-ag
Lin v. Holder
BIA
Rohan, IJ
A 095 688 005
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 14th day of July, two thousand eleven.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
______________________________________
XUE FENG LIN,
Petitioner,
v. 10-1392-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Karen L. Melnik,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Xue Feng Lin, a native and citizen of China, seeks
review of an April 1, 2010 order of the BIA affirming the
June 2, 2008 decision of Immigration Judge (“IJ”) Patricia
A. Rohan, which denied Lin’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Xue Feng Lin, No. A095 688
005 (B.I.A. Apr. 1, 2010), aff’g No. A095 688 005 (Immig.
Ct. N.Y.C. June 2, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have
considered both the IJ’s and the BIA’s opinions “for the
sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
(2d Cir. 2008). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic
v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
The agency reasonably concluded that Lin did not suffer
past persecution based on her mother’s forced sterilization.
See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,
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308 (2d Cir. 2007) (en banc) (holding that “applicants can
become candidates for asylum relief only based on
persecution that they themselves have suffered or must
suffer”); Shao Yan Chen v. U.S. Dep’t of Justice, 417 F.3d
303, 305 (2d Cir. 2005) (holding that children of people
persecuted under a coercive family planning policy are not
per se eligible for asylum). The agency also reasonably
concluded that Lin’s experiences, including being detained
for one day and being unable to register at a vocational
school, did not rise to the level of persecution. See
Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006)
(upholding agency’s determination that applicant was not
eligible for withholding of removal based on “brief”
detention after which he was released “without harm”); Ai
Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d
Cir. 2005) (upholding agency’s determination that applicant
had not been persecuted where applicant “was detained only
briefly, and was not mistreated while in custody”),
overruled on other grounds by Shi Liang Lin, 494 F.3d at
305; Damko v. INS, 430 F.3d 626, 636-37 (2d Cir. 2005)
(concluding that applicant’s expulsion from university,
while “not fair,” did not constitute persecution, where it
did not result in “economic deprivation so severe that her
life or her freedom was threatened”), vacated on other
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grounds and superseded by Damko v. INS, 178 F. App’x 85(2nd
Cir. 2006). The agency also reasonably concluded that,
without a spouse or children, Lin’s claim that she fears
future persecution because she is of child-bearing age and
wants to have children is “speculative,” and insufficient to
demonstrate a well-founded fear of future persecution. See
Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(holding that, absent solid support in the record for the
petitioner’s assertion that he would be subjected to forced
sterilization, his fear was “speculative at best”).
Furthermore, the agency reasonably determined that Lin
failed to establish a well-founded fear of persecution or
eligibility for CAT relief based on her illegal departure
from China. See Saleh v. U.S. Dep't of Justice, 962 F.2d
234, 239 (2d Cir. 1992) (“Punishment for violation of a
generally applicable criminal law is not persecution.”); see
also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,
159-60 (2d Cir. 2005) (evidence that some individuals who
leave China illegally are imprisoned, and that human rights
violations including torture occur in Chinese prisons, is
insufficient to establish a clear probability of torture for
a particular illegal emigrant); Mu-Xing Wang v. Ashcroft,
320 F.3d 130, 143-44 (2d Cir. 2003) (holding relevant
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inquiry in determining whether a particular petitioner is
eligible for CAT relief is whether someone in the
petitioner’s “particular alleged circumstances” is more
likely than not to be tortured).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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