Feng Lin v. Holder

09-1934-ag
Lin v. Holder
BIA
Chew, IJ
A097 189 264
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 21 st day of January, two thousand ten.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12
13 FENG LIN,
14 Petitioner,
15
16 v. 09-1934-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Dehai Zhang, Flushing, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, John S. Hogan, Senior
27 Litigation Counsel, Edward E.
28 Wiggers, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Feng Lin, a native and citizen of the
6 People’s Republic of China, seeks review of the April 15,
7 2009 order of the BIA affirming the November 21, 2007
8 decision of Immigration Judge (“IJ”) George T. Chew denying
9 his applications for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Feng Lin, No. A097 189 264 (B.I.A. Apr. 15, 2009), aff’g No.
12 A097 189 264 (Immig. Ct. N.Y. City Nov. 21, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 We have previously determined that, under 8 U.S.C.
16 § 1101(a)(42), an individual is not per se eligible for
17 asylum based on the forced abortion or sterilization of a
18 spouse or partner. Shi Liang Lin v. U.S. Dep’t of Justice,
19 494 F.3d 296, 308 (2d Cir. 2007). Rather, “applicants can
20 become candidates for asylum relief only based on
21 persecution that they themselves have suffered or must
22 suffer.” Id.; see also Matter of J-S-, 24 I.&.N. Dec. 520
2
1 (A.G. 2008). Here, because Lin’s claim was based entirely
2 on his wife’s forced abortion and IUD procedure, the agency
3 denied his claims, relying on Shi Liang Lin and Matter of J-
4 S-.
5 Contrary to Lin’s argument, the BIA’s retroactive
6 application of Shi Liang Lin and Matter of J-S- to his
7 claims did not violate his due process rights. See Shou Wei
8 Jin v. Holder, 572 F.3d 392, 397 (7th Cir. 2009); Yu v. U.S.
9 Atty. Gen., 568 F.3d 1328, 1333 (11th Cir. 2009). As, the
10 BIA stated, it applies the law in effect at the time it
11 enters a decision. See 8 C.F.R. § 1003.1(d)(3)(ii); c.f.
12 NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir.
13 1995)(“Appellate courts ordinarily apply the law in effect
14 at the time of the appellate decision”).
15 Because Lin was unable to meet his burden of proof for
16 asylum, his withholding of removal claim necessarily fails.
17 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). As
18 before the BIA, Lin fails to challenge the denial of his CAT
19 claim, abandoning any such argument. See Gui Yin Liu v.
20 INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).
21 For the foregoing reasons, the petition for review is
3
1 DENIED. As we have completed our review, any stay of
2 removal that the Court previously granted in this petition
3 is VACATED, and any pending motion for a stay of removal in
4 this petition is DISMISSED as moot. Any pending request for
5 oral argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
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