Hua Lin v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2182
HUA LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: May 29, 2009 Decided: July 6, 2009
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Gregory Marotta, LAW OFFICE OF RICHARD TARZIA, Belle Mead, New
Jersey, for Petitioner. Michael F. Hertz, Acting Assistant
Attorney General, Anh-Thu P. Mai-Windle, Senior Litigation
Counsel, Kathryn M. McKinney, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hua Lin, a native and citizen of China, petitions for
review of an order of the Board of Immigration Appeals (“Board”)
dismissing her appeal from the immigration judge’s decision
denying her applications for asylum, withholding from removal
and withholding under the Convention Against Torture (“CAT”) and
denying her motion to remand. Lin claimed she did not want to
return to China for fear of being forcibly sterilized due to her
having given birth to three children in the United States. We
deny the petition for review.
The INA authorizes the Attorney General to confer
asylum on any refugee. 8 U.S.C. § 1158(a) (2006). It defines a
refugee as a person unwilling or unable to return to his or her
native country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A) (2006). “Persecution involves the
infliction or threat of death, torture, or injury to one’s
person or freedom, on account of one of the enumerated grounds .
. . .” Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)
(internal quotation marks and citations omitted). *
*
In her brief, although citing the law supporting
withholding from removal and relief under the CAT, Lin fails to
make any argument that the Board erred in denying either of
(Continued)
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An alien “bear[s] the burden of proving eligibility
for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.
2006); see 8 C.F.R. § 1208.13(a) (2009), and can establish
refugee status based on past persecution in his or her native
country on account of a protected ground. 8 C.F.R.
§ 1208.13(b)(1) (2009). “An applicant who demonstrates that he
was the subject of past persecution is presumed to have a well-
founded fear of persecution.” Ngarurih v. Ashcroft, 371 F.3d
182, 187 (4th Cir. 2004). Without regard to past persecution,
an alien can establish a well-founded fear of persecution on a
protected ground. Id. at 187. The well-founded fear standard
contains both a subjective and an objective component. “The
subjective component can be met through the presentation of
candid, credible, and sincere testimony demonstrating a genuine
fear of persecution . . . . [It] must have some basis in the
reality of the circumstances and be validated with specific,
those forms of relief. Furthermore, she does not challenge the
Board’s finding that she did not argue on appeal that it was
more likely than not that she will be tortured if she were to
return to China. Those claims are waived. See Fed. R. App. P.
28(a)(9)(A) (“[T]he argument . . . must contain . . .
appellant’s contentions and the reasons for them, with citations
to the authorities and parts of the record on which the
appellant relies.”); Edwards v. City of Goldsboro, 178 F.3d 231,
241 n.6 (4th Cir. 1999) (“Failure to comply with the specific
dictates of [Rule 28] with respect to a particular claim
triggers abandonment of that claim on appeal.”); see also
Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004).
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concrete facts . . . and it cannot be mere irrational
apprehension.” Li, 405 F.3d at 176 (internal quotation marks
and citations omitted). The objective element requires a
showing of specific, concrete facts that would lead a reasonable
person in like circumstances to fear persecution. Gandziami-
Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir. 2006).
A sterilization is deemed to be persecution and “a
person who has a well founded fear that he or she will be forced
to undergo such a procedure . . . shall be deemed to have a
well founded fear of persecution on account of political
opinion.” 8 U.S.C. § 1101(a)(42)(B)(2006).
A determination regarding eligibility for asylum or
withholding of removal is affirmed if supported by substantial
evidence on the record considered as a whole. INS v. Elias
Zacarias, 502 U.S. 478, 481 (1992). Administrative findings of
fact are conclusive unless any reasonable adjudicator would be
compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B)
(2006). This court will reverse the Board only if “the evidence
. . . presented was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.” Elias-
Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325
n.14 (4th Cir. 2002).
Because Lin did not claim past persecution she must
establish a well-founded fear of persecution, which she claims
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she did through her credible testimony and evidence. We find
the record does not compel a different result. The Board was
entitled to address the background evidence supporting Lin’s
claim in summary fashion. The Board reviewed this and similar
evidence in prior decisions. See Wang v. BIA, 437 F.3d 270, 275
(2d Cir. 2006); Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA
2007); Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007) and
Matter of C-C-, 23 I. & N. Dec. 899 (BIA 2006). Furthermore,
Lin’s personal evidence supporting her claim was of questionable
weight and uncorroborated.
We also find the Board did not abuse its discretion in
denying Lin’s motion to remand. Obioha v. Gonzales, 431 F.3d
400, 408 (4th Cir. 2005) (stating standard of review).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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