Filed: Sep. 29, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3534-ag Lin v. Holder BIA Nelson, IJ A099 427 645 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 NO
Summary: 10-3534-ag Lin v. Holder BIA Nelson, IJ A099 427 645 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..
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10-3534-ag
Lin v. Holder
BIA
Nelson, IJ
A099 427 645
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 29th day of September, two thousand eleven.
PRESENT:
JOSÉ A. CABRANES,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_______________________________________
CHANG BAO LIN,
Petitioner,
v. 10-3534-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jed S. Wasserman, Kuzmin & Associates,
P.C., New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Carl H. McIntyre, Assistant Director;
John J. W. Inkeles, Trial Attorney,
Office of Immigration Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
1
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 DISMISSED in part and DENIED in part.
Petitioner Chang Bao Lin, a native and citizen of
China, seeks review of a August 6, 2010, order of the BIA
affirming the December 23, 2008, decision of Immigration
Judge (“IJ”) Barbara A. Nelson denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Chang Bao Lin,
No. A099 427 645 (B.I.A. Aug. 6, 2010), aff’g No. A099 427
645 (Immig. Ct. N.Y. City Dec. 23, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C. §
1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d
Cir. 2009).
We lack jurisdiction to consider Lin’s challenge to the
pretermission of his asylum application because his
assertion of a due process violation essentially disputes
the correctness of the IJ’s factual findings. See Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 328-29 (2d Cir.
2006) (finding that a question of law is not implicated
“when the petition for review essentially disputes the
correctness of the IJ’s fact-finding or the wisdom of his
exercise of discretion.”). Accordingly, we dismiss the
petition for review as to asylum and address only Lin’s
challenges to the denial of withholding of removal and CAT
relief.
Lin contends that the agency erred in finding that he
did not establish past persecution. However, because Lin
testified to only a brief altercation with authorities that
did not result in arrest, detention, or serious injury, the
agency reasonably concluded that he had not demonstrated
harm rising to the level of persecution. See Ivanishvili v.
U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
(concluding that persecution requires that the harm suffered
be sufficiently severe, rising above “mere harassment”); see
also Jian Qiu Liu v. Holder,
632 F.3d 820, 822 (2d Cir.
2011) (holding that petitioner failed to establish
persecution where “he suffered only minor bruising from an
altercation with family planning officials, which required
no formal medical attention and had no lasting physical
2
effect”). Additionally, in light of the amount Lin paid to
be smuggled into the United States, and his failure to
present evidence of his financial circumstances, the agency
reasonably found that the fine imposed was not so severe
that it constituted persecution. See Guan Shan Liao v. U.S.
Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (holding
that an asylum applicant claiming that economic deprivation
constituted persecution must offer some proof that he
suffered a “deliberate imposition of substantial economic
disadvantage.”) (internal quotation marks omitted).
The agency also did not err in finding that Lin did not
establish that it was more likely than not that he would be
subjected to torture if he returned to China because of his
illegal departure from the country. Contrary to Lin’s
characterization, the State Department reports on China in
the record indicated that most returnees would be, at most,
subjected to a brief detention, and Lin presented no
particularized evidence suggesting that he would be
tortured. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432
F.3d 156, 157-60 (2d Cir. 2005) (holding that a petitioner
is not “entitled to CAT protection based solely on the fact
that she is part of the large class of persons who have
illegally departed China,” and that beyond generalized
country conditions reports stating that some Chinese
prisoners have been tortured, an applicant for CAT relief
must submit particularized evidence suggesting that he is
likely to be subject to torture in Chinese prisons).
Moreover, Lin’s claim that he is eligible for withholding of
removal based on his illegal departure from China is
unavailing because punishment for violation of a law
applicable to all citizens does not, standing alone,
establish persecution on a protected ground. See Qun Yang
v. McElroy,
277 F.3d 158, 163 n. 5 (2d Cir. 2002); Saleh v.
U.S. Dep’t of Justice,
962 F.2d 234, 239 (2d Cir. 1992)
(“Punishment for violation of a generally applicable
criminal law is not persecution.”).
Accordingly, because Lin did not establish that he
suffered past persecution or that he is likely to be
subjected to future persecution or torture, he did not
establish his eligibility for withholding of removal or CAT
relief. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178,
184-85 (2d Cir. 2004).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. 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.
3
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
4
