Xintáo Lin v. Holder ( 2014 )

13-3837
Lin v. Holder
BIA
Vomacka, IJ
A089 101 717
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 11th day of December, two thousand fourteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 XINTAO LIN,
14 Petitioner,
15
16 v. 13-3837
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Robert Tsigler, Law Offices of Yu &
24 Associates, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Claire L. Workman, Senior
28 Litigation Counsel; Jane T.
29 Schaffner, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Xintao Lin, a native and citizen of China, seeks review
6 of a September 19, 2013, decision of the BIA affirming an
7 Immigration Judge’s (“IJ”) December 16, 2010, denial of
8 asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Xintao Lin, No.
10 A089 101 717 (B.I.A. Sept. 19, 2013), aff’g No. A089 101 717
11 (Immig. Ct. N.Y. City Dec. 16, 2010). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history of this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as supplemented by the BIA. See Yan Chen
16 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
19 510, 513 (2d Cir. 2009).
20 An applicant may establish eligibility for asylum and
21 withholding of removal based on past persecution on account
22 of a protected ground. See 8 C.F.R. §§ 1208.13(b)(1),
23 1208.16(b)(1). As the BIA concluded, even if credible, Lin
2
1 did not establish past persecution. Lin testified that, on
2 one occasion, he was “hit . . . a few times” by a police
3 baton, causing dizziness. The agency properly determined
4 that this single incident did not rise to the level of
5 persecution. See Mei Fun Wong v. Holder, 633 F.3d 64, 72
6 (2d Cir. 2011) (“We have emphasized that persecution is an
7 extreme concept that does not include every sort of
8 treatment our society regards as offensive.” (internal
9 quotation marks and citations omitted)); Jian Qiu Liu v.
10 Holder, 632 F.3d 820, 822 (2d Cir. 2011) (finding no error
11 in BIA’s conclusion that the alien did not establish past
12 persecution on account of a single beating, and two days of
13 detention, when the resulting injuries “required no formal
14 medical attention and had no lasting physical effect”).
15 In the absence of past persecution, there is no
16 presumption of future persecution. 8 C.F.R.
17 § 1208.13(b)(1). To qualify for asylum, Lin must,
18 therefore, establish a well-founded fear of future
19 persecution. 8 C.F.R. § 1208.13(b)(2). To demonstrate such
20 a well-founded fear, Lin must show either that he would be
21 singled out for persecution or that China has a pattern or
22 practice of persecuting those similarly situated to him.
3
1 8 C.F.R. § 1208.13(b)(2)(iii). Irrespective of the theory,
2 the agency was not compelled to find that Lin demonstrated a
3 well-founded fear of persecution.
4 In determining that Lin did not meet his burden, the
5 agency did not err in declining to credit letters from Lin’s
6 father and a fellow church member because they were unsworn,
7 neither writer was available for cross-examination, and
8 Lin’s father was an interested witness. Xiao Ji Chen v.
9 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006); In
10 re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010)
11 (giving diminished weight to letters from relatives because
12 they were from interested witnesses not subject to cross-
13 examination), rev’d on other grounds by Hui Lin Huang v.
14 Holder, 677 F.3d 130 (2d Cir. 2012). Lin does not challenge
15 the agency’s decision to that extent. Moreover, as the
16 agency noted, police did not specifically target Lin during
17 a raid on a church in 2008 and only sought him out after he
18 disobeyed their order not to move by fleeing the scene. See
19 8 C.F.R. § 1208.13(b)(2).
20 The agency also reasonably relied on the 2009
21 Department of State International Religious Freedom Report
22 and Human Rights Report. See Xiao Ji Chen, 471 F.3d at 341
4
1 (“a report from the State Department is usually the best
2 available source of information on country conditions”
3 (internal quotation marks and citation omitted)). Those
4 reports revealed that members of underground churches were
5 punished in some parts of China, but practiced without
6 interference by authorities in other areas. The Religious
7 Freedom Report also showed that those most likely to be
8 targeted by the Chinese government were “prominent religious
9 leaders,” and not church members such as Lin. While the
10 Religious Freedom Report describes several incidents
11 involving Chinese officials harassing underground churches,
12 these incidents did not occur in Lin’s home province of
13 Fujian. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142,
14 149, 169-72 (2d Cir. 2008).
15 This record does not compel a finding that Lin’s fear
16 of being singled out for persecution is objectively
17 reasonable, or that there is a pattern or practice of
18 persecution against similarly situated practitioners. See
19 id. at 171 (providing that the agency is not compelled to
20 resolve conflicts in record evidence in the applicant’s
21 favor so long as substantial evidence raises doubts that
22 authorities will single out the applicant for persecution
23 and the agency does not overlook contrary evidence); Santoso
5
1 v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009) (finding
2 reasonable the agency’s determination that petitioner failed
3 to demonstrate a pattern or practice of persecution where
4 religious violence was localized as opposed to countrywide).
5 Because Lin has not met the standard for asylum, he cannot
6 meet the standards for withholding of removal or CAT relief.
7 See, e.g., Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir.
8 2010). As Lin’s failure to meet his burden for relief is
9 dispositive of his claims, we do not analyze the agency’s
10 adverse credibility determination. INS v. Bagamasbad, 429
11 U.S. 24, 25 (1976).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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