Lin v. Garland ( 2023 )

21-6296
Lin v. Garland
BIA
Hom, IJ
A208 617 575
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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 16th day of August, two thousand
4 twenty-three.
5
6 PRESENT:
7 GERARD E. LYNCH,
8 RAYMOND J. LOHIER, JR.,
9 EUNICE C. LEE,
10 Circuit Judges.
11 _____________________________________
12
13 GUO LIN,
14 Petitioner,
15
16 v. 21-6296
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, NY.
1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
2 Attorney General; Jessica E. Burns, Senior
3 Litigation Counsel; Scott M. Marconda, Senior
4 Trial Attorney, Office of Immigration
5 Litigation, United States Department of
6 Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Guo Lin, a native and citizen of the People’s Republic of China,
11 seeks review of an April 21, 2021 decision of the BIA affirming a December 7, 2018
12 decision of an Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Guo Lin, No. A208 617 575 (B.I.A. Apr. 21, 2021), aff’g No. A208 617
15 575 (Immigr. Ct. N.Y.C. Dec. 7, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed both the IJ’s and BIA’s decisions. See Xue Hong Yang v.
18 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review factual findings
19 for substantial evidence and questions of law de novo. Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009). “[T]he administrative findings of fact are conclusive
21 unless any reasonable adjudicator would be compelled to conclude to the
2
1 contrary.” 8 U.S.C. § 1252(b)(4)(B).
2 To establish eligibility for asylum and withholding of removal, an applicant
3 must establish past persecution or a well-founded fear or likelihood of future
4 persecution on account of “race, religion, nationality, membership in a particular
5 social group, or political opinion.” 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A);
6 8 C.F.R. §§ 1208.13(b), 1208.16(b). “In order to establish persecution on account
7 of political opinion . . . , an asylum applicant must show . . . , through direct or
8 circumstantial evidence, that the persecutor’s motive to persecute arises from the
9 applicant’s political belief.” Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.
10 2005) (quotation marks and citations omitted). The agency did not err in
11 concluding that Lin failed to establish that the harm he suffered and fears was on
12 account of his political opinion or any other protected ground.
13 Although forced sterilization or “other resistance to a coercive population
14 control program” constitutes persecution “on account of political opinion,”
15 8 U.S.C. § 1101(a)(42), Lin was not eligible for asylum and withholding of removal
16 based on his father’s forced sterilization under the family planning policy.
17 Moreover, Lin did not allege that he engaged in “other resistance” to the family
18 planning policy or that he suffered harm as a result of such resistance. Shi Liang
3
1 Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309–10, 313 (2d Cir. 2007) (“[T]o qualify for
2 refugee status . . . an individual must turn to the two remaining categories of §
3 601(a), which provide protection to petitioners who demonstrate other resistance
4 to a coercive population control program or a well founded fear that he or she will
5 be subject to persecution for such resistance” (internal quotation marks omitted
6 and alterations adopted)). Instead, Lin claimed that fellow school children
7 bullied and beat him because they did not like him and wanted money, and thus
8 took advantage of the fact that his father had fled China because of the family
9 planning policy. This alleged causal connection is too tenuous to establish a
10 nexus between the harm Lin suffered as a child and China’s family planning
11 policy. See 8 U.S.C. § 1101(a)(42).
12 As to Lin’s allegation that a business competitor attacked him and hired
13 others to destroy his business and threaten him, Lin failed to identify a specific
14 protected ground for which he was targeted. Nor did his testimony reveal one.
15 Instead, Lin admitted that his competitor targeted him solely because he underbid
16 the competitor for a lucrative contract. That financially-motivated personal
17 attack did not establish that Lin was or would be targeted on account of “race,
18 religion, nationality, membership in a particular social group, or political
4
1 opinion.” 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). Because Lin did not allege
2 or establish that he was or would be harmed on account of a protected ground, the
3 agency did not err in denying asylum and withholding of removal. See id.4 Unlike asylum and withholding, CAT does not require a nexus to a
5 protected ground. See 8 C.F.R. §§ 1208.16(c), 1208.17. To obtain CAT relief, an
6 applicant must show both that it is “more likely than not” that he will be tortured,
7 and that a government actor will inflict, instigate, or acquiesce in that torture. Id.;
8 see also Garcia-Aranda v. Garland, 53 F.4th 752, 758 (2d Cir. 2022). “Acquiescence
9 is satisfied where the government actor knows of or remains willfully blind to an
10 act and thereafter breaches their legal responsibility to prevent it.” Garcia-Aranda,
11 53 F.4th at 759 (internal quotation marks omitted and alterations adopted).
12 The agency did not err in concluding that Lin failed to demonstrate that a
13 government official had or was likely to acquiesce in his torture. Although police
14 told Lin’s sister that Lin should report the attacks he suffered himself, Lin did not
15 do so. And, in response to the attacks, police later looked for Lin, but he was not
16 at home and did not speak to them. Lin speculated that police took no action
17 because his attacker was wealthy and well-connected, but he did not provide any
18 specific basis for that belief and failed to take advantage of the avenues of redress
5
1 that police offered. On this record, the agency was not compelled to find that
2 government officials would likely acquiesce in Lin’s torture by his business
3 competitor and thus did not err in concluding that Lin failed to satisfy his burden
4 of proof for CAT relief. See id.; see also Quintanilla-Mejia v. Garland, 3 F.4th 569,
5 593 (2d Cir. 2021) (recognizing that failure to request assistance from police,
6 although alone insufficient, may be taken into account when evaluating
7 acquiescence); Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In
8 the absence of solid support in the record . . . [an applicant’s] fear is speculative at
9 best.”).
10 For the foregoing reasons, the petition for review is DENIED. All pending
11 motions and applications are DENIED and stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
6