Filed: Feb. 07, 2020
Latest Update: Feb. 07, 2020
Summary: 17-3994 Lin v. Barr BIA Poczter, IJ A206 735 092 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 NOTATI
Summary: 17-3994 Lin v. Barr BIA Poczter, IJ A206 735 092 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 NOTATIO..
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17-3994
Lin v. Barr
BIA
Poczter, IJ
A206 735 092
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
7th day of February, two thousand twenty.
PRESENT:
ROBERT D. SACK,
DEBRA ANN LIVINGSTON,
JOSEPH F. BIANCO
Circuit Judges.
_____________________________________
XING WANG LIN,
Petitioner,
v. 17-3994
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Anthony P. Nicastro,
Assistant Director; Sherease Pratt,
Senior Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Xing Wang Lin, a native and citizen of the
People’s Republic of China, seeks review of a November 21, 2017,
decision of the BIA affirming a March 22, 2017, decision of an
Immigration Judge (“IJ”) denying him asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Xing Wang Lin, No. A206 735 092 (B.I.A. Nov.
21, 2017), aff’g No. A206 735 092 (Immig. Ct. N.Y. City Mar.
22, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s opinions “for
the sake of completeness.” Wangchuck v. Dep’t of Homeland
Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Y.C. v. Holder,
741 F.3d 324, 332 (2d Cir.
2013). The agency did not err in concluding that Lin failed
to satisfy his burden of proving past persecution or a
well-founded fear of future persecution on account of his
attendance at a church service that police raided in 2014 and
his continued religious practice.
2
A valid past persecution claim can be based on harm other
than threats to life or freedom, including
“non-life-threatening violence and physical abuse,” Beskovic
v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm
must rise above “mere harassment,” Ivanishvili v. U.S. Dep’t
of Justice,
433 F.3d 332, 341 (2d Cir. 2006). Because Lin did
not have any interaction with police during the raid on his
church and he did not suffer harm in China, he did not suffer
past persecution. See id.; see also Mei Fun Wong v. Holder,
633 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that
persecution is an extreme concept that does not include every
sort of treatment our society regards as offensive.” (internal
quotation marks omitted)).
Absent past persecution, an alien may establish
eligibility for asylum by demonstrating a well-founded fear of
future persecution. 8 C.F.R. § 1208.13(b)(2); Ramsameachire
v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To demonstrate
a well-founded fear, an applicant must show either a reasonable
possibility that he would be singled out for persecution or that
the country of removal has a pattern or practice of persecuting
similarly situated individuals. 8 C.F.R.
§ 1208.13(b)(2)(iii). The agency reasonably found that Lin
failed to establish an objectively reasonable fear of
3
persecution on account of his religious practice because his
claim that he would be singled out for persecution was
speculative and his evidence did not demonstrate a pattern or
practice of persecution of similarly situated Christians.
Lin’s claim that he would be singled out for persecution
based on the raid on his church was speculative given his
testimony that police had not looked for him since 2014 and that
his church may no longer be open. See Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid
support in the record . . . , [an applicant’s] fear is
speculative at best.”). And the country conditions evidence
did not establish a pattern or practice of persecution of
similarly situated Christians in China because it indicates
that tens of millions of Christians practice in unregistered
churches in China and that officials do not interfere with
religious practice in some areas of the country. See 8 C.F.R.
§ 1208.13(b)(2)(iii); see also Santoso v. Holder,
580 F.3d 110,
112 & n.1 (2d Cir. 2009); In re A-M-, 23 I. & N. Dec. 737, 741
(B.I.A. 2005) (recognizing that a pattern or practice of
persecution is the “systemic or pervasive” persecution of a
group).
Because Lin failed to establish past persecution or a
well-founded fear of future persecution, the agency did not err
4
in denying asylum, withholding of removal, and CAT relief
because all three claims were based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2006).*
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe
Clerk of Court
* The BIA and Government incorrectly contend that Lin abandoned
withholding of removal and CAT relief. The IJ relied on Lin’s
failure to satisfy his burden for asylum to deny all forms of
relief.
5
