Qiao Yun Lin v. Holder , 354 F. App'x 540 ( 2009 )


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  •          08-5942-ag
    Lin v. Holder
    BIA
    DeFonzo, IJ
    A099-539-862
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
    FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
    AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
    LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
    ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
    “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
    TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
    BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
    PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
    HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
    ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
    DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Daniel Patrick Moynihan
    3       United States Courthouse, 500 Pearl Street, in the City of
    4       New York, on the 1 st day of December, two thousand nine.
    5
    6       PRESENT:
    7                ROGER J. MINER,
    8                JOSÉ A. CABRANES,
    9                ROBERT D. SACK,
    10                      Circuit Judges.
    11       _______________________________________
    12
    13       QIAO YUN LIN,
    14                Petitioner,
    15
    16                           v.                                 08-5942-ag
    17                                                              NAC
    18       ERIC H. HOLDER, JR., UNITED STATES
    19       ATTORNEY GENERAL, *
    20                Respondent.
    21       ______________________________________
    *
    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.
    1   FOR PETITIONER:        Patrick A. Metcalf, Metcalf &
    2                          Associates, Hoffman Estates, IL.
    3
    4   FOR RESPONDENT:        Tony West, Assistant Attorney
    5                          General; Terri J. Scadron, Assistant
    6                          Director; Kristina R. Sracic, Trial
    7                          Attorney, Office of Immigration
    8                          Litigation, United States Department
    9                          of Justice, Washington, DC.
    10
    11       UPON DUE CONSIDERATION of this petition for review of a
    12   Board of Immigration Appeals (“BIA”) decision, it is hereby
    13   ORDERED, ADJUDGED, AND DECREED that the petition for review
    14   is DENIED.
    15       Petitioner Qiao Yun Lin, a native and citizen of the
    16   People’s Republic of China, seeks review of a November 4,
    17   2008 order of the BIA affirming the May 25, 2007 decision of
    18   Immigration Judge (“IJ”) Paul A. DeFonzo denying her
    19   application for asylum, withholding of removal, and relief
    20   under the Convention Against Torture (“CAT”).    In re Qiao
    21   Yun Lin, No. A099-539-862 (B.I.A. Nov. 4, 2008), aff’g No.
    22   A099-539-862 (Immig. Ct. N.Y. City May 25, 2007).    We assume
    23   the parties’ familiarity with the underlying facts and
    24   procedural history of this case.
    25       When the BIA adopts the decision of the IJ and
    26   supplements the IJ’s decision, this Court reviews the
    27   decision of the IJ as supplemented by the BIA.    See Yan Chen
    2
    1    v. Gonzales, 
    417 F.3d 268
    , 271 (2d Cir. 2005).     This Court
    2    reviews the agency’s factual findings under the substantial
    3    evidence standard.    See 
    8 U.S.C. § 1252
    (b)(4)(B); see also
    4    Jian Hui Shao v. Mukasey, 
    546 F.3d 138
    , 157-58 (2d Cir.
    5    2008).    The Court reviews questions of law and the
    6    application of law to undisputed fact de novo.     Salimatou
    7    Bah v. Mukasey, 
    529 F.3d 99
    , 110 (2d Cir. 2008).
    8    I.   Asylum and Withholding of Removal
    9         A.    Past Persecution
    10        Substantial evidence supports the agency’s finding that
    11   Lin failed to satisfy her burden of proof as to her
    12   application for asylum and withholding of removal.     Lin
    13   argues before this Court that her refusal to submit to a
    14   mandatory gynecological exam constituted, not just other
    15   resistance to the family planning policy, but persecution.
    16   Yet, even if Lin did engage in resistance, she did not
    17   suffer persecution as a result.     See Matter of M-F-W-,24 I.
    18   & N. Dec. 633, 641 (BIA 2008).     Indeed, Lin fled China
    19   before attending any gynecological exam.
    20        Lin also argues that the IJ failed to consider her
    21   claims of persecution cumulatively.     That argument fails
    22   because it ignores the fact that the IJ found significant
    3
    1    aspects of her claim not credible, including her assertion
    2    that she was kidnapped or arrested by a village chief as a
    3    result of her family’s violation of the family planning
    4    policy.   The IJ also reasonably concluded that Lin was not
    5    eligible for asylum based on the forced sterilization of her
    6    mother.   See Tao Jiang v. Gonzales, 
    500 F.3d 137
    ,140-41 (2d
    7    Cir. 2007) (citing Shi Liang Lin, 494 F.3d at 308-09; Shao
    8    Yan Chen v. U.S. Dep’t of Justice, 
    417 F.3d 303
    , 305 (2d
    9    Cir. 2005).   Thus, we find no error in the agency’s finding
    10   that Lin failed to demonstrate past persecution.
    11
    12       B.    Well-Founded Fear
    13       To establish asylum eligibility based on a fear of
    14   future persecution, an applicant must show that he or she
    15   subjectively fears persecution and that this fear is
    16   objectively reasonable.    Ramsameachire v. Ashcroft, 
    357 F.3d 17
       169, 178 (2d Cir. 2004).    Substantial evidence supports the
    18   agency’s conclusion that Lin failed to demonstrate a well-
    19   founded fear of future persecution based on her newly
    20   adopted practice of Christianity.    The IJ reasonably noted
    21   that the record revealed that Chinese authorities permit
    22   approximately 16 million Christians in China to attend
    4
    1    sanctioned Christian churches.    In light of that fact, the
    2    IJ reasonably concluded that Lin’s apprehensions over
    3    returning to China were not objectively well-founded.      See
    4    Jian Xing Huang v. INS, 
    421 F.3d 125
    , 129 (2d Cir. 2005).
    5          Because Lin was unable to meet her burden for asylum,
    6    she has necessarily failed to meet the higher burden
    7    required for withholding of removal.     See Paul v. Gonzales,
    8    
    444 F.3d 148
    , 156 (2d Cir. 2006).
    9    II.   CAT Relief
    10         Although Lin sets forth the standard for CAT relief in
    11   her brief before this Court, she does not challenge the
    12   basis of the IJ’s denial of that relief.     Accordingly, we
    13   deem any such challenge waived.     See Yueqing Zhang v.
    14   Gonzales, 
    426 F.3d 540
    , 541 n.1, 545 n.7 (2d Cir. 2005).
    15         For the foregoing reasons, the petition for review is
    16   DENIED.   Having completed our review, we DISMISS the
    17   petitioner's pending motion for a stay of removal as moot.
    18
    19                                FOR THE COURT:
    20                                Catherine O’Hagan Wolfe, Clerk
    21
    22                                By:___________________________
    5