10-1912-ag
    Lin v. Holder
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A099 661 860
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 5th day of April, two thousand twelve.

    PRESENT:
             ROSEMARY S. POOLER,
             RICHARD C. WESLEY,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    PING HUA LIN,
             Petitioner,

                    v.                                     10-1912-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               G. Victoria Calle, New York,
                                  New York.

    FOR RESPONDENTS:              Tony West, Assistant Attorney
                                  General; Lyle D. Jentzer, Senior
                                  Litigation Counsel; Jeffrey L.
                                  Menkin, 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.

    Ping Hua Lin, a native and citizen of the People’s

Republic of China, seeks review of an April 16, 2010, order

of the BIA, affirming the March 19, 2008, decision of

Immigration Judge (“IJ”) Sandy Hom, which denied his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).     In re Ping

Hua Lin, No. A099 661 860 (B.I.A. Apr. 16, 2010), aff’g No.

A099 661 860 (Immig. Ct. N.Y. City Mar. 19, 2008).     We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    Under the circumstances of this case, we have

considered both the IJ’s and the BIA’s opinions “for the

sake of completeness.”     Zaman v. Mukasey, 

, 237

(2d Cir. 2008).     The applicable standards of review are

well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

v. Holder, 

, 513 (2d Cir. 2009).

    Lin’s asylum claim was based primarily on his wife’s

forced abortion and his mother’s one-day detention.     As we

have explained, “[a]s a general principle, an asylum

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applicant cannot claim past persecution based solely on harm

that was inflicted on a family member.”   Tao Jiang v.

Gonzales, 

, 141 (2d Cir. 2007).   We have also

specifically held that a woman’s forced abortion does not

qualify as per se persecution with respect to her spouse.

See Shi Liang Lin v. U.S. Dep’t of Justice, 

,

309 (2d Cir. 2007).   Although Lin argues that he personally

suffered emotional harm due to his wife’s forced abortion,

the “profound emotional loss as a partner and potential

parent . . . . does not change the requirement that we must

follow the ‘ordinary meaning’ of the language chosen by

Congress, according to which an individual does not

automatically qualify for ‘refugee’ status on account of a

coercive procedure performed on someone else.”     

agency did not err in finding that Lin was

not eligible for relief based on his mother’s detention and

his wife’s forced abortion.   See 

spouse’s forced abortion is not per se

persecution, applicants may base their claims on

“persecution that they themselves have suffered or must

suffer” on account of their “other resistance” to a coercive

family planning policy.   See id.; see also 8 U.S.C.


                              3
§ 1101(a)(42).     Lin argues that he resisted the family

planning policy by conceiving an unauthorized child, and was

persecuted on account of his resistance because he was

threatened with sterilization and hid from the family

planning officials as a result of that threat.      However, the

agency did not err in finding that Lin failed to demonstrate

that he engaged in “other resistance,” as he testified that

he did not engage in any overt opposition to the family

planning policy.     See Ru-Jian Zhang v. Ashcroft, 

, 532 (2d Cir. 2004).     Moreover, even if Lin’s attempt to

hide from the family planning officials might be

characterized as “other resistance,” see Matter of M-F-W- &

L-G-, 24 I. & N. Dec. 633, 638 (B.I.A. 2008), the agency did

not err in finding that he failed to show that he was

persecuted on account of his resistance.      See Shi Liang 

.

    Lin testified that he was never arrested or physically

mistreated.    He argues, however, that he was persecuted

because the family planning officials threatened him,

causing him to go into hiding.      The agency did not err in

finding that these experiences did not rise to the level of

persecution.     See Gui Ci Pan v. U.S. Attorney Gen., 

408, 412 (2d Cir. 2006)(noting that courts have “rejected

[persecution] claims involving ‘unfulfilled’ threats”).

Because Lin failed to demonstrate that he was persecuted on

account of his other resistance, the agency did not err in

denying asylum and withholding of removal, as both claims

shared the same factual predicate.    See Paul v. Gonzales,

, 154 (2d Cir. 2006).    Lin has not challenged

the agency’s finding that he failed to demonstrate a well-

founded fear of future persecution or its denial of CAT

relief.

    For the foregoing reasons, the petition for review is

DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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