Lin v. Sessions , 681 F. App'x 86 ( 2017 )

15-1615
Lin v. Sessions
BIA
Bukszpan, IJ
A200 602 479
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 TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
2nd day of March, two thousand seventeen.
PRESENT:
JOHN M. WALKER, JR.,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
LI LIN,
Petitioner,
v. No. 15-1615
NAC
JEFF SESSIONS, UNITED STATES
ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Huiyue Qiu, Union, New Jersey.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
P. Nicastro, Acting Assistant
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Jeff Sessions is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
Director; Dana M. Camilleri, 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
DISMISSED in part and DENIED in remaining part.
Petitioner Li Lin, a native and citizen of the People’s
Republic of China, seeks review of the BIA’s affirmance of an
Immigration Judge’s (“IJ’s”) denial of asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). See In re Li Lin, No. A200 602 479 (B.I.A. Apr. 17,
2015), aff’g No. A200 602 479 (Immig. Ct. N.Y. City Apr. 2,
2013).
Under the circumstances of this case, we review both the
IJ’s and BIA’s decisions, see Zaman v. Mukasey, 514 F.3d 233,
237 (2d Cir. 2008), applying well established standards of
review, see 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009). In so doing, we assume the
parties’ familiarity with the underlying facts and procedural
history of this case, which we reference only as necessary to
explain our decision to dismiss in part and deny in part.
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Lin seeks review of the agency’s denial of her asylum
application as untimely filed and its decision that threat of
sterilization is alone insufficient to show past persecution
for purposes of other relief. We dismiss the petition as to
asylum because we lack jurisdiction to consider Lin’s challenge
to the timeliness ruling. We deny the petition in remaining
part because threats alone do not constitute past persecution,
and Lin has waived any other arguments by failing to raise them
in her brief. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d
Cir. 1998) (“Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on
appeal.”); see also Karaj v. Gonzales, 462 F.3d 113, 119 (2d
Cir. 2006) (holding that petitioners’ “failure to seek review
of the CAT claim deprives [this Court] of jurisdiction”).
I. One-Year Bar
We dismiss Lin’s petition as it relates to the agency’s
pretermission of asylum. An asylum application must be filed
within one year of arrival in the United States, absent changed
or extraordinary circumstances. See 8 U.S.C. § 1158(a)(2)(B),
(D). While we lack jurisdiction to review the agency’s
pretermission of asylum on timeliness grounds, we retain
jurisdiction to review “constitutional claims or questions of
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law.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). Lin raises no
such claims and asserts no changed or extraordinary
circumstances. Instead, Lin challenges the agency’s
pretermission finding on the basis that the agency ignored her
testimony that she entered the United States in February 2010,
as well as her June 2009 medical record from China, and,
consequently, failed to consider the totality of the
circumstances. Because Lin’s challenge “merely quarrels over
the correctness of the [agency’s] factual findings or
justification for [its] discretionary choice[],” we lack
jurisdiction to review it. Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 329 (2d Cir. 2006).
II. Past Persecution
To establish eligibility for withholding of removal, an
applicant must show that it is more likely than not that her
“life or freedom would be threatened in that country because
of [her] race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). Past persecution can support such a finding
and can be based on harms other than those threatening life or
freedom, including “non-life-threatening violence and physical
abuse.” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.
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2006). Such harm, however, must be sufficiently severe to rise
above “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d Cir. 2006). “[T]he difference between
harassment and persecution is necessarily one of degree that
must be decided on a case-by-case basis.” Id.
Lin’s claim of past persecution rests on a threat of
sterilization. This court has held that “threats of
persecution” alone, “no matter how credible, do not demonstrate
past persecution.” Huo Qiang Chen v. Holder, 773 F.3d 396, 406
(2d Cir. 2014) (collecting cases); see also Gui Ci Pan v. U.S.
Att’y Gen., 449 F.3d 408, 412–13 (2d Cir. 2006) (concluding that
flight to avoid threatened forced abortion did not establish
past persecution). Zhen Hua Li v. Att’y Gen., 400 F.3d 157 (3d
Cir. 2005), cited by Lin, is not to the contrary. The Third
Circuit there held that the threat of sterilization and physical
violence described by the petitioner did not “appear to have
been sufficiently imminent or concrete for the threats
themselves to be considered past persecution,” because neither
he nor his family members “were actually imprisoned, beaten,
sterilized, or otherwise physically harmed.” Id. at 165. So
here, nothing in the record indicates that the threat directed
at Lin was accompanied by actual harm rising to the level of
persecution. Lin also asserts that the BIA erred in failing
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to consider Matter of T-Z-, 24 I. & N. Dec. 163 (B.I.A. 2007).
Matter of T-Z- is inapposite, however, in that it discussed
whether an abortion is forced as required for asylum when
coerced by means other than “physical force or restraint, or
the threat of physical force or restraint.” Id. at 169. It
did not discuss, much less decide, whether a threat of an
abortion alone could be persecution.
Accordingly, the agency reasonably determined that Lin did
not suffer past persecution. See Mei Fun Wong v. Holder, 633
F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that persecution
is an extreme concept that does not include every sort of
treatment our society regards as offensive.” (internal
quotation marks omitted)).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in remaining part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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