Filed: Jan. 21, 2010
Latest Update: Mar. 02, 2020
Summary: 08-4383-ag Lin-Chin v. Holder BIA Hom, IJ A098 712 265 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
Summary: 08-4383-ag Lin-Chin v. Holder BIA Hom, IJ A098 712 265 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 N..
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08-4383-ag
Lin-Chin v. Holder
BIA
Hom, IJ
A098 712 265
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21 st day of January, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROSEMARY S. POOLER,
REENA RAGGI,
Circuit Judges.
_______________________________________
DIAN JIN LIN-CHIN,
Petitioner,
v. 08-4383-ag
NAC
ERIC H. HOLDER, Jr., * U.S. ATTORNEY
GENERAL, UNITED STATES DEPARTMENT
OF JUSTICE,
Respondents.
_______________________________________
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr., is automatically substituted
for former Attorney General Michael B. Mukasey as respondent in this
case.
FOR PETITIONER: Norman Kwai Wing Wong, New York, New
York.
FOR RESPONDENT: Michael F. Hertz, Assistant Attorney
General, Cindy S. Ferrier, Senior
Litigation Counsel, Kimberly A.
Burdge, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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 in part and DISMISSED in part.
Dian Jin Lin-Chin, a native and citizen of the People’s
Republic of China, seeks review of an August 15, 2008 order
of the BIA, dismissing an appeal from the June 28, 2006
decision of Immigration Judge (“IJ”) Sandy Hom, in which the
IJ denied Lin-Chin’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). See In re Dian Jin Lin-Chin, No. A98 712 265
(B.I.A. Aug. 15, 2008); In re Dian Jin Lin-Chin, No. A98 712
265 (Immig. Ct. N.Y. City June 28, 2006).
Where, as here, the BIA does not adopt the IJ’s
decision insofar as it was based on an adverse-credibility
finding and, in fact, resolves the petition on an assumption
of credibility, the BIA’s decision becomes the focus of our
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review. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). We review questions of law and the application
of law to undisputed fact de novo and fact-findings for
substantial evidence. See Salimatou Bah v. Mukasey,
529
F.3d 99, 110 (2d Cir. 2008). In conducting our review, we
assume the parties’ familiarity with the underlying facts
and procedural history of this case.
Lin-Chin contends that the BIA erred in concluding that
he failed to demonstrate past persecution or a well-founded
fear of future persecution on account of his opposition to
China’s family planning policies.
We are not persuaded. Lin-Chin’s claim of past
persecution consisted of being slapped and cursed at on one
occasion when he argued with family planning officials about
the forced sterilization of his mother. Lin-Chin does not
assert a derivative claim of persecution based on the
treatment of his mother. And the conduct he experienced
directly does not rise to the level of severity indicative
of “persecution.” See Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d Cir. 2006) (distinguishing
“persecution” from “mere harassment”).
Lin-Chin’s claim of future persecution was also
3
deficient. Even assuming the credibility of his testimony
that Chinese authorities tried to arrest him and offered a
reward for his capture, Lin-Chin did not indicate how an
arrest based on one dispute he had with family planning
officials in 2004 would be likely to result in treatment
amounting to persecution. See Jian Xing Huang v. INS, 421
F.3d 125, 128 (2d Cir. 2005) (holding that petitioner
seeking asylum based on resistance to China’s family
planning policies was required “to offer credible, specific,
and detailed evidence that his well-founded fear is either
of forcible sterilization or of some other sort of
persecution” (emphasis added)); see also Shao v. Mukasey,
546 F.3d 138, 163 (2d Cir. 2008) (upholding BIA
determination that petitioner’s “‘generalized argument[s]’”
failed to demonstrate “reasonable possibility” of future
persecution). Under such circumstances, he fails to
demonstrate that any subjective fear of future persecution
is objectively reasonable. See Shao v. Mukasey at 157-58,
162-66.
Because Lin-Chin failed to challenge the IJ’s denial of
his CAT claim before the BIA, we lack jurisdiction to
consider and, therefore, will dismiss, this portion of his
petition. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462
4
F.3d 113, 119 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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