Filed: Apr. 16, 2012
Latest Update: Feb. 22, 2020
Summary: 10-5178-ag Lin v. Holder BIA Rohan, IJ A088 530 572 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: 10-5178-ag Lin v. Holder BIA Rohan, IJ A088 530 572 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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10-5178-ag
Lin v. Holder
BIA
Rohan, IJ
A088 530 572
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 16th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
JOSEPH M. MCLAUGHLIN,
REENA RAGGI,
Circuit Judges.
_____________________________________
RONG LIN,
Petitioner,
v. 10-5178-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Feng Li, Moslemi and Associates,
Inc., New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; M. Jocelyn Lopez Wright,
Senior Litigation Counsel; Jason
Wisecup, 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.
Petitioner Rong Lin, a native and citizen of the
People’s Republic of China, seeks review of a December 3,
2010 order of the BIA denying his motion to remand and
affirming the August 31, 2009 decision of Immigration Judge
(“IJ”) Patricia Rohan, which denied his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Rong Lin, No.
A088 530 572 (B.I.A. Dec. 3, 2010), aff’g No. A088 530 572
(Immig. Ct. N.Y.C. Aug. 31, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
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); Kaur v. BIA,
413 F.3d 232, 233–34
(2d Cir. 2005).
2
The agency’s determination that Lin failed to establish
a well-founded fear of persecution on account of his
violation of China’s family planning policy is supported by
substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Jian
Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the
absence of solid support in the record for [an applicant’s]
assertion that he will be subjected to forced sterilization,
his fear is speculative at best.”). In finding that Lin
failed to meet his burden of establishing a well-founded
fear of persecution on account of his family planning
violation, the agency reasonably relied on (1) the fact that
Lin’s parents had three children without incident, (2) the
fact that Lin could not name a single individual that had
been forcibly sterilized for violating the country’s family
planning policy, and (3) the U.S. Department of State’s May
2007 Profile of Asylum Claims and Country Conditions for
China (“2007 Profile”) indicating that the government of
China does not use physical coercion to compel sterilization
and that Consulate General officials visiting Fujian did not
discover any cases of forced sterilization despite such
reports.
3
Although Lin argues that the BIA erred by placing more
weight on the 2007 Profile than on the reply letter sent to
his father from the the Huangshi Villagers’ Committee of
Yingqian (“CPC Reply Letter”), “[w]e do not . . . attempt to
resolve conflicts in record evidence, a task largely within
the discretion of the agency.” Jian Hui Shao v. Mukasey,
546 F.3d 138, 171 (2d Cir. 2008). Moreover, notwithstanding
Lin’s argument to the contrary, the agency did not err in
giving diminished weight to Lin’s CPC Reply Letter, which,
as the agency noted, was unauthenticated, issued without a
signature, omitted the name of the person on which it was
served, and was not mentioned in Lin’s father’s subsequent
statement. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471
F.3d 315, 342 (2d Cir. 2006) (stating that the weight
afforded to the applicant’s evidence lies largely within the
discretion of the agency).
Moreover, because, as Lin concedes, he failed to
“provide any information of a particularized threat” on
account of his Christian religious beliefs before the IJ,
Pet’r’s Br. 18, the agency’s determination that Lin failed
to establish a well-founded fear of persecution on the basis
of his Christian faith is supported by substantial evidence.
4
See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.
2008) (“[T]o establish a well-founded fear of persecution in
the absence of any evidence of past persecution, an alien
must make some showing that authorities in his country of
nationality are either aware of his activities or likely to
become aware of his activities.”).
In addition, the BIA did not abuse its discretion in
denying Lin’s motion to remand. In finding that Lin failed
to establish his prima facie eligibility for relief, the BIA
reasonably relied on the absence of any objective country
conditions evidence in the record regarding China’s
treatment of underground churches. See Jian Xing Huang, 421
F.3d at 129. Although Lin now argues that the BIA should
have taken administrative notice of unspecified background
materials, it is Lin who bears the burden of demonstrating
his entitlement to relief. See 8 C.F.R. § 1003.2(c)(1).
Moreover, while Lin did submit evidence indicating
Chinese authorities sought him in connection with his
support for his local underground church, the BIA did not
err in finding that Lin failed to demonstrate his prima
facie eligibility for asylum. The BIA reasonably determined
that the uncorroborated threat of arrest, “when coupled with
the facts already of record, and in the absence of evidence
5
of country conditions in China,” J.A. 5, was insufficient to
establish Lin’s prima facie eligibility for relief. See
Jian Xing Huang, 421 F.3d at 129.
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
6
