Yishou Lin v. Lynch

14-1914
Lin v. Lynch
BIA
Hom, IJ
A201 119 987
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 TO 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
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of July, two thousand fifteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 YISHOU LIN,
14 Petitioner,
15
16 v. 14-1914
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Farah Loftus, Century City,
25 California.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
28 Attorney General; Ernesto H. Molina,
29 Jr., Assistant Director; Tracey N.
1 McDonald, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Yishou Lin, a native and citizen of the People’s
11 Republic of China, seeks review of a May 16, 2014, decision of
12 the BIA affirming a February 14, 2012, decision of an
13 Immigration Judge (“IJ”) denying Lin’s application for asylum,
14 withholding of removal, and relief under the Convention Against
15 Torture (“CAT”). In re Yishou Lin, No. A201 119 987 (B.I.A.
16 May 16, 2014), aff’g No. A201 119 987 (Immig. Ct. N.Y. City Feb.
17 14, 2012). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 We have reviewed the IJ’s decision as modified by the BIA,
20 i.e., minus the basis for denying relief that the BIA declined
21 to consider (the IJ’s finding that Lin’s asylum application was
22 untimely and the IJ’s denial of CAT relief). See Xue Hong Yang
23 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
24 applicable standards of review are well established. See
2
1 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
2 F.3d 510, 513 (2d Cir. 2009).
3 Past Persecution
4 It is undisputed that Lin is not eligible for asylum solely
5 on the basis of his wife’s forced family planning procedures.
6 See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-310
7 (2d Cir. 2007). Nevertheless, he can still qualify for asylum
8 or withholding of removal by demonstrating that: (1) he engaged
9 in “resistance” to the family planning policy; and (2) he
10 suffered harm rising to the level of persecution, or he has a
11 well-founded fear or likelihood of suffering such harm as a
12 direct result of his resistance. Id. at 313; see also 8 U.S.C.
13 § 1101(a)(42); 8 C.F.R. § 1208.16(b).
14 The agency did not err in finding that, even assuming that
15 Lin engaged in resistance to the family planning policy, he
16 failed to establish that he suffered persecution on account of
17 that resistance. Although he claimed that family planning
18 officials beat him, he did not allege that he suffered any
19 serious or lasting harm as a result. See Jian Qiu Liu v. Holder,
20 632 F.3d 820, 822 (2d Cir. 2011) (“We have never held that a
21 beating that occurs within the context of an arrest or detention
22 constitutes persecution per se.”); Mei Fun Wong v. Holder, 633
3
1 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that persecution
2 is an extreme concept that does not include every sort of
3 treatment our society regards as offensive.” (internal
4 quotation marks omitted)). Furthermore, Lin did not allege
5 that the family planning fine imposed caused him “severe
6 economic disadvantage” as required to demonstrate economic
7 persecution. In re T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA 2007);
8 see also Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61,
9 70 (2d Cir. 2002). Because Lin did not demonstrate past
10 persecution, he was not entitled to a presumption of a
11 well-founded fear of future persecution. See 8 C.F.R.
12 § 1208.13(b)(1).
13 Well-Founded Fear of Persecution
14 Absent past persecution, an applicant may establish
15 eligibility for asylum by demonstrating a well-founded fear of
16 future persecution, 8 C.F.R. § 1208.13(b)(2), which must be
17 both subjectively credible and objectively reasonable,
18 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
19 The agency reasonably found speculative Lin’s fear of
20 persecution under the family planning policy because he lived
21 unharmed in China from his 2001 altercation with family planning
22 officials until his departure from that country in 2010. See
4
1 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding
2 that a fear is not objectively reasonable if it lacks “solid
3 support” in the record and is merely “speculative at best”).
4 That finding was dispositive of asylum and withholding of
5 removal because those claims were based on the same factual
6 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
7 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
5