Filed: Dec. 15, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4816-ag Lian v. Holder BIA Burr, IJ A099 525 909 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 NOT
Summary: 09-4816-ag Lian v. Holder BIA Burr, IJ A099 525 909 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 NOTA..
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09-4816-ag
Lian v. Holder
BIA
Burr, IJ
A099 525 909
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 15 th day of December, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 JING GUANG LIAN,
14 Petitioner,
15
16 09-4816-ag
17 v. NAC
18
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Jing Guang Lian, pro se, Bayside,
26 New York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Daniel E. Goldman, Senior
30 Litigation Counsel; Jonathan
31 Robbins, Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner, Jing Guang Lian, pro se, a native and
10 citizen of China, seeks review of an October 30, 2009,
11 decision of the BIA affirming the March 19, 2008, decision
12 of Immigration Judge (“IJ”) Sarah M. Burr denying his
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”) and denying his
15 motion to remand. In re Jing Guang Lian, No. A099 525 909
16 (B.I.A. Oct. 30, 2009), aff’g No. A099 525 909 (Immig. Ct.
17 N.Y. City Mar. 19, 2008). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 of the case.
20 Under the circumstances of this case, we review the
21 IJ’s decision as modified by the BIA’s decision, i.e., minus
22 the arguments for denying relief that were rejected by the
23 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
24 520, 522 (2d Cir. 2005). Because the BIA found that the IJ
2
1 did not make an adverse credibility determination, this
2 Court will assume credibility. Id.; Yan Chen v. Gonzales,
3 417 F.3d 268, 271-72 (2d Cir. 2005). The applicable
4 standards of review are well-established. See 8 U.S.C.
5 § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d
6 510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep't of
7 Justice,
421 F.3d 149, 155-56 (2d Cir. 2005).
8 The agency correctly concluded that Lian was not
9 eligible for asylum based solely on his wife’s alleged
10 forced abortion and IUD insertion. See Shi Liang Lin v.
11 U.S. Dep’t of Justice,
494 F.3d 296, 309-11 (2d Cir. 2007).
12 Nonetheless, even though he was not per se eligible for
13 relief on that basis, he could have established his
14 eligibility for relief by demonstrating that he engaged in
15 “other resistance” to the family planning policy and that he
16 either suffered past persecution or had a well founded fear
17 of future persecution on account of such other resistance.
18 8 U.S.C. § 1101(a)(42); Shi Liang
Lin, 494 F.3d at 309-10.
19 Even assuming, arguendo, that Lian established the
20 requisite resistance, the agency reasonably determined that
21 he failed to demonstrate past persecution or a well founded
22 fear of future persecution. Although Lian claims that, at
3
1 the time his wife was forced to undergo an abortion, family
2 planning officials pushed him and caused him to hit his
3 head, the agency reasonably determined that this physical
4 mistreatment did not constitute past persecution, as Lian
5 was not detained at the time and did not establish that he
6 suffered any significant harm as a result. Ivanishvili v.
7 U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
8 (holding that “the difference between harassment and
9 persecution is necessarily one of degree that must be
10 decided on a case-by-case basis”); cf. Beskovic v. Gonzales,
11
467 F.3d 223, 226 (2d Cir. 2006) (holding that the severity
12 of physical mistreatment “must be assessed with regard to
13 the context in which the mistreatment occurs,” and that
14 conduct “that, in other contexts, could fairly be
15 characterized as ‘the mere annoyance and distress’ of
16 harassment, can take on an entirely different character when
17 officially inflicted on an individual while detained on
18 account of protected grounds”) (internal citation omitted).
19 The agency also reasonably determined that Lian failed
20 to establish that he has a well founded fear of future
21 persecution, in the form of forced sterilization. Lian
22 failed to provide support for his fear of sterilization, as
4
1 he paid the fine assessed to him for violating the family
2 planning policies, he remained unharmed in China for three
3 years after his altercation with family planning officials,
4 his wife remained in China without being forced to undergo
5 sterilization, and a letter sent by his wife made no mention
6 of any fear of sterilization. See Jian Xing Huang v. INS,
7 421 F.3d 125, 129 (2d Cir. 2005) (holding that absent “solid
8 support in the record” for petitioner’s claim that he would
9 be persecuted under the family planning policy, his fear was
10 “speculative at best”). Lian’s assertion that he is
11 eligible for withholding of removal or CAT relief based on
12 his fear of imprisonment upon return to China as a result of
13 having fled China to seek asylum is unexhausted, as it was
14 not raised before the agency. See 8 U.S.C. § 1252(d)(1);
15 Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 119-20 (2d
16 Cir. 2007).
17 Further, the agency did not abuse its discretion in
18 denying Lian’s motion to remand to present further evidence
19 of head trauma, in light of the facts that Lian did not
20 present any medical evidence of a head injury, the hearing
21 transcript did not indicate any cognitive impairment, and
22 neither Lian nor his counsel mentioned any cognitive
5
1 problems resulting from a head injury at the merits hearing.
2 Li Yong Cao, 421 F.3d at 156. Lian has not explained why he
3 was unable to present the purported medical evidence during
4 his merits hearing. See 8 C.F.R. § 1003.2(c)(1) (2005);
5 8 U.S.C. § 1229a(c)(7); Norani v. Gonzales,
451 F.3d 292,
6 294 & n.3 (2d Cir. 2006).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
6
