Lin v. Sessions ( 2018 )

16-3290
Lin v. Sessions
BIA
Hom, IJ
A205 722 838
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 6th day of April, two thousand eighteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
LI JIE LIN, AKA LI LIN,
AKA LIJIE LIU,
Petitioner,
v. 16-3290
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Li Jie Lin, pro se, Alhambra, CA.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Emily Anne
Radford, Assistant Director; Brett
F. Kinney, Trial Attorney; Laura
M. Cover, Law Clerk, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Li Jie Lin, a native and citizen of the
People’s Republic of China, seeks review of an August 31,
2016 decision of the BIA affirming a January 26, 2015
decision of an Immigration Judge (“IJ”) denying Lin’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Li Jie
Lin, No. A 205 722 838 (B.I.A. Aug. 31, 2016), aff’g No. A
205 722 838 (Immig. Ct. N.Y. City Jan. 26, 2015). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
I. Denial of a Continuance or Remand to Obtain Evidence
We review an IJ’s denial of a continuance and the BIA’s
denial of remand for abuse of discretion. See Sanusi v.
Gonzales, 445 F.3d 193, 199 (2d Cir. 2006)(per curiam)
(continuance); Li Yong Cao v. U.S. Dep’t of Justice, 421
F.3d 149, 157 (2d Cir. 2005) (remand). “An abuse of
discretion may be found . . . where the [agency’s] decision
provides no rational explanation, inexplicably departs from
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established policies, is devoid of any reasoning, or
contains only summary or conclusory statements; that is to
say, where the [agency] has acted in an arbitrary or
capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d 83, 93 (2d Cir. 2001) (internal citations
omitted). An IJ may grant a continuance for “good cause
shown.” 8 C.F.R. § 1003.29. “IJs are accorded wide
latitude in calendar management, and we will not
micromanage their scheduling decisions any more than when
we review such decisions by district judges.” Morgan v.
Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).
We also review for abuse of discretion an agency’s
enforcement of filing deadlines for the submission of
evidence. Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.
2008). As with calendaring, an IJ, like a district judge,
has broad discretion to set and enforce filing deadlines.
Id. at 192. The agency’s rules provide that “[i]f an
application or document is not filed within the time set by
the [IJ], the opportunity to file that application or
document shall be deemed waived.” 8 C.F.R. § 1003.31(c).
Under the abuse of discretion standard, Lin’s challenges
to the denial of a continuance and remand fail. On November
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22, 2013, the IJ informed Lin and his counsel that evidence
was due on February 3, 2014, giving Lin two months to collect
it. Lin did not request an extension before the deadline.
A month after the deadline had passed, and less than a week
before the March 18, 2014 merits hearing, Lin moved for a
change of venue or, alternatively, a continuance, citing his
counsel’s schedule. Lin’s request for a continuance did not
suggest that any documentation he sought would have been
unavailable to him by the deadline had he sought it in a
timely fashion. Further, although Lin’s new counsel requested
a continuance at the merits hearing, emphasizing that he had
been retained the day before, Lin had been on notice of the
hearing date and document submission deadline for over two
months. In the absence of good cause for the delay, the
IJ did not abuse his discretion by declining to continue the
case and the BIA reasonably declined to remand the case. See
8 C.F.R. § 1003.29; Morgan, 445 F.3d at 553. Moreover, Lin
waived his opportunity to file evidence by not submitting it
by February 3 and the agency did not abuse its discretion by
enforcing that deadline. See 8 C.F.R. § 1003.31(c); Dedji,
525 F.3d at 192.
Lin’s remaining arguments on this point are meritless.
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His attorney at the initial hearing consented to the March
2014 hearing date. And his arguments that his first attorney
failed to advise him regarding document collection is
unsuccessful because he did not raise, or comply with the
procedural requirements for, an ineffective assistance of
counsel claim. Jian Yun Zheng v. U.S. Dep't of Justice, 409
F.3d 43, 46-47 (2d Cir. 2005).
II. Merits
Under the circumstances of this case, we review the
decisions of both the IJ and BIA. Ming Xia Chen v. BIA, 435
F.3d 141, 144 (2d Cir. 2006). 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).
There is no error in the agency’s conclusion that Lin
failed to meet his burden of proof. Although “consistent,
detailed, and credible testimony may be sufficient to carry
the alien’s burden, evidence corroborating his story, or an
explanation for its absence, may be required where it would
reasonably be expected.” Diallo v. INS, 232 F.3d 279, 285
(2d Cir. 2000). “Where the trier of fact determines that
the applicant should provide evidence that corroborates
otherwise credible testimony, such evidence must be
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provided unless the applicant does not have the evidence
and cannot reasonably obtain the evidence.” 8 U.S.C.
§ 1158(b)(1)(B)(ii); see Chuilu Liu v. Holder, 575 F.3d
193, 197 (2d Cir. 2009). “No court shall reverse a
determination made by a trier of fact with respect to the
availability of corroborating evidence . . . unless the
court finds . . . that a reasonable trier of fact is
compelled to conclude that such corroborating evidence is
unavailable.” 8 U.S.C. § 1252(b)(4). Lin did not document
his alleged arrests and detentions in China, country
conditions in China, or his continuing practice of
Christianity in the United States, and, thus, as discussed
briefly below, he did not meet his burden to establish
either past persecution or a well-founded fear of future
persecution.
Past Persecution
To satisfy his burden regarding past persecution, Lin
had to show both that events occurred and that they rose to
the level of persecution. He did neither. Persecution can
consist of harm other than threats to life or freedom,
“includ[ing] non-life-threatening violence and physical
abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d
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Cir. 2006); however, the harm must be sufficiently severe,
rising above “mere harassment,” Ivanishvili v. U.S. Dep’t
of Justice, 433 F.3d 332, 341-42 (2d Cir. 2006). Not every
incident of physical violence constitutes persecution. See
Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)
(per curiam) (“We have never held that a beating that
occurs within the context of an arrest or detention
constitutes persecution per se.”).
Lin bore the burden to corroborate his asylum claim
with reasonably available documentary evidence. As the
agency found, Lin failed to corroborate his arrests,
detention, the fines paid for his release, or the extent of
any injuries. Lin does not dispute that—at a minimum—he
could have obtained statements from his parents given that
he claimed his mother was arrested with him and his father
paid the fines for their release. The lack of
corroboration made Lin unable to demonstrate that his
arrests, beating, and detentions occurred or that they were
sufficiently severe to rise to the level of persecution, as
his application and testimony included no detail about the
severity of any injuries. See Beskovic, 467 F.3d at 226
(holding that, although “the difference between harassment
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and persecution is necessarily one of degree, the degree
must be assessed with regard to the context in which the
mistreatment occurs” (internal quotation marks omitted)).
Accordingly, the evidence was not sufficient for Lin to
meet his burden of establishing past persecution. See Jian
Qiu Liu, 632 F.3d at 822 (upholding agency determination
that harm was not sufficient to state a claim where
injuries consisted of minor bruising which did not require
formal medical attention); Chuilu Liu, 575 F.3d at 198 n.5
(reasoning that “a failure to corroborate can suffice,
without more, to support a finding that an alien has not
met his burden of proof”).
Well-Founded Fear of Future Persecution
Because he did not meet his burden of showing past
persecution, Lin had the burden to demonstrate a well-
founded fear of future persecution, which is a “subjective
fear that is objectively reasonable.” Dong Zhong Zheng v.
Mukasey, 552 F.3d 277, 284 (2d Cir. 2009) (internal
quotation marks omitted); see also Y.C. v. Holder, 741 F.3d
324, 332 (2d Cir. 2013)(“For an asylum claim, the applicant
must show a reasonable possibility of future persecution.”
(internal quotation marks omitted)). As with his claim of
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past harm, Lin presented no evidence to corroborate his
claims that he would be singled out for persecution or that
there was a pattern or practice of persecution of
Christians in China. See Y.C., 741 F.3d at 332 (discussing
ways to demonstrate reasonableness of fear of future harm).
The IJ reasonably concluded that Lin failed to show a
well-founded fear of future persecution. Lin testified
that he might be arrested in China because of his practice
of Christianity. However, he produced no evidence
regarding the persecution of Christians in China or any
proof that he continued to practice Christianity in the
United States. Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 342 (2d Cir. 2006). The IJ also reasonably
declined to credit Lin’s explanation that his father had
been unable to procure evidence of his alleged arrests
because Lin’s testimony was self-serving and not
corroborated by a statement from his father. Diallo, 232
F.3d at 285. Instead, the IJ reasonably concluded that
Lin’s alleged fear of the police was speculative: the
record does not establish that the Chinese police would
single out Lin for persecution or that the authorities
target Christians in Lin’s home province. See Jian Xing
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Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per
curiam) (“In the absence of solid support in the record” a
fear of persecution is not objectively reasonable and is
“speculative at best.”). Lin’s failure to carry his burden
with respect to fear of future persecution is dispositive
of withholding of removal and CAT relief because both
“entail a greater likelihood of future persecution than
that required for the grant of asylum.” See Lecaj v.
Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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