Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2005

Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4663




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                                                     NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 04-4663


                       HAI QUANG LIN,
                       a/k/a Hua Ouyang,

                                 Petitioner

                                  v.

       ALBERTO GONZALES, ATTORNEY GENERAL
         OF THE UNITED STATES OF AMERICA,

                                Respondent



          On Petition for Review of a Final Order of the
                  Board of Immigration Appeals
                         No. A78 865 467


        Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                      December 15, 2005

Before: SLOVITER, SMITH and VAN ANTWERPEN, Circuit Judges

                   (Filed: December 19, 2005)



                           OPINION
SMITH, Circuit Judge.

       Hai Quang Lin, a native and citizen of the People’s Republic of China, petitions

for review of an order of the Board of Immigration Appeals (“BIA”) which denied Lin’s

application for asylum, withholding of removal and relief under the Convention Against

Torture (“CAT”).1 At a hearing before an Immigration Judge (“IJ”), Lin testified that his

father, a practitioner of Falun Gong, directed that he distribute Falun Gong literature in

public on September 10, 2001. While Lin was engaged in this task, he was arrested,

detained, and hit by an officer. He managed to escape through a window of the room in

which he was detained when the lone officer left the premises to investigate a nearby

brawl. Instead of returning to the home of his parents, Lin contacted his father by

telephone and followed his father’s advice to go to a friend’s house in the town of Ang

Gin.

       Lin was able to flee to Ang Gin without experiencing any further problems with

the authorities. Lin testified that his father informed him that the authorities searched his

parents’ home the next day and on two other occasions. Lin affirmed that his father

advised him that the authorities continued to look for him. The authorities, however, did

not trouble Lin while he lived in Ang Gin during the next ten months. Nonetheless, Lin

decided to leave China, entering the United States on July 20, 2002. He claimed that,

even though he was not a Falun Gong practitioner, he had been persecuted because of his


  1
    The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2(b). The BIA exercised
jurisdiction under 8 C.F.R. § 1003.1(b). We have jurisdiction under 8 U.S.C. § 1252.
                                              2
involvement with the Falun Gong movement and that he would be persecuted for that

same reason if he were to return. In addition, Lin claimed that he would be subject to

imprisonment if repatriated because of his illegal immigration.

       The IJ did not find Lin credible and denied Lin’s application for asylum,

withholding and relief under the CAT. The BIA did not endorse the IJ’s adverse

credibility determination. Rather, it declared that “[e]ven if the respondent provided

credible testimony in support of his application for asylum, we find that the respondent

has failed to meet his burden of proof to establish either past persecution or a well-

founded fear of return to China on account of his limited involvement with the practice of

Falun Gong.”

       Because the BIA did not adopt the IJ’s adverse credibility determination, our

review is limited to the final order issued by the BIA and whether it is supported by

substantial evidence. Abdulai v. Ashcroft, 

, 549 3d Cir. 2001). Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion. . . .” Dia v. Ashcroft, 

, 248 (3d Cir. 2003) (en banc)

(quoting N.L.R.B. v. Columbian Enameling & Stamping Co., 

, 300 (1939))

(internal quotation marks omitted).

       We conclude that there is substantial evidence to support the BIA’s determination

that Lin’s arrest, detention for almost twelve hours, and assault by the single officer in the

detention room did not constitute persecution. He was able to physically escape and the

abuse he sustained was not severe enough to hamper his flight to Ang Gin or subject him

                                              3
to being recaptured. See Fatin v. INS, 

, 1240 (3d Cir. 1993) (according

deference to the BIA’s interpretation of the term “persecution” as including “threats to

life, confinement, torture, and economic restrictions so severe that they constitute a threat

to life or freedom,” and concluding that “the concept of persecution does not encompass

all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional”).

       Moreover, once Lin arrived in Ang Gin, he lived there for ten months without

encountering any difficulties with the authorities. Although Lin affirmed in his affidavit

that his father’s house was searched on three occasions, Lin did not indicate that his

parents suffered any repercussions at the hands of the authorities. As we observed in Lie

v. Ashcroft, 

, 537 (3d Cir. 2005), an alien’s claim that he has a well-founded

fear of future persecution is undermined when his family members remain in his native

country without meeting harm. The prospect of persecution based on Lin’s Falun Gong

involvement, as the BIA pointed out, was attenuated because Lin testified that he did not

practice Falun Gong. Nor is there any support for Lin’s contention that he would be

imprisoned if repatriated. The United States Department of State’s Country Conditions

Report indicates, as the BIA pointed out, that imprisonment occurs “after a second

repatriation.”

       Because there is substantial evidence to support the determination that Lin was not

persecuted and that he did not have a well-founded fear of future persecution, Lin cannot

satisfy the more demanding standard which applies to a claim for withholding of removal.

                                              4
Balasubramanrim v. INS, 

, 161 n.8 (3d Cir. 1998) (citing INS v. Cardoza-

Fonseca, 

, 430-31 (1987)). Lin’s claim for relief under the CAT need not be

addressed as Lin waived that claim by failing to present any legal argument on this issue

in his brief filed with this court. Kost v. Kozakiewicz, 

, 182 (3d Cir. 1993).

       We will deny Lin’s petition for review.




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