Lin v. Whitaker ( 2019 )

16-4105
Lin v. Whitaker
BIA
Videla, IJ
A088 996 431
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 1st day of February, two thousand nineteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 KE LONG LIN,
14 Petitioner,
15
16 v. 16-4105
17 NAC
18 MATTHEW G. WHITAKER, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Cindy S.
27 Ferrier, Assistant Director; Matt
28 A. Crapo, Attorney, Office of
29 Immigration Litigation, United
06152016-10
1 States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED in part and DISMISSED in part.
8 Petitioner Ke Long Lin, a native and citizen of the
9 People’s Republic of China, seeks review of a November 28,
10 2016, BIA decision that affirmed the March 10, 2016, decision
11 of an Immigration Judge (“IJ”) denying asylum, withholding of
12 removal, relief under the Convention Against Torture (“CAT”),
13 and cancellation of removal. In re Ke Long Lin, No. A088 996
14 431 (B.I.A. Nov. 28, 2016), aff’g No. A088 996 431 (Immig.
15 Ct. N.Y. City Mar. 10, 2016). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case. Under these circumstances, we have reviewed
18 both the IJ’s and the BIA’s opinions “for the sake of
19 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
20 524, 528 (2d Cir. 2006).
21 Lin applied for asylum, withholding of removal, and CAT
22 relief, asserting that he fears persecution based on the birth
23 of his three children in the United States in violation of
24 China’s population control program. The applicable standards
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1 of review are well established. See Jian Hui Shao v. Mukasey,
2 546 F.3d 138, 157-58 (2d Cir. 2008).
3 As an initial matter, contrary to Lin’s contention, the
4 agency applied the correct burden when considering his
5 application. See id. at 156-57 & n.15. For largely the same
6 reasons as set forth in Jian Hui Shao, we find no error in
7 the agency’s determination that Lin failed to satisfy his
8 burden for asylum, withholding of removal, and CAT relief.
9 See id. at 158-67; see also Paul v. Gonzales, 444 F.3d 148,
10 156-57 (2d Cir. 2006). While the petitioners in Jian Hui
11 Shao were from Fujian Province, and Lin is from Zhejiang
12 Province, as with the evidence discussed in Jian Hui Shao,
13 Lin’s evidence related to Zhejiang Province does not describe
14 the use of force in the enforcement of the family planning
15 policy against Chinese nationals returning with U.S.-born
16 children. See id. at 160-61, 165-66, 171-72.
17 Our jurisdiction to review the agency’s denial of
18 cancellation of removal based on Lin’s failure to establish
19 hardship to a qualifying relative is limited to
20 constitutional claims and questions of law, 8 U.S.C.
21 § 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales, 516 F.3d
22 35, 39-40 (2d Cir. 2008), for which our review is de novo,
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1 Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). When
2 assessing jurisdiction, we “study the arguments asserted” to
3 “determine, regardless of the rhetoric employed in the
4 petition, whether it merely quarrels over the correctness of
5 the factual findings” or raises a true question of law. Xiao
6 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
7 2006).
8 Lin’s argument that the agency erred in characterizing
9 his daughter’s health issues as “manageable” is not colorable
10 because that is how her doctor characterized them. See
11 Barco-Sandoval, 516 F.3d at 40 (“[W]e lack jurisdiction to
12 review any legal argument that is so insubstantial and
13 frivolous as to be inadequate to invoke federal-question
14 jurisdiction . . . .”). Lin’s remaining arguments merely
15 quarrel with the agency’s factual findings. See Xiao Ji
16 Chen, 471 F.3d at 330-31.
17 We agree with the Government that Lin’s brief on appeal
18 to the BIA was inadequate to serve also as a motion to remand
19 for consideration of new evidence. See 8 C.F.R.
20 § 1003.1(d)(3)(iv) (requiring a party asserting that the BIA
21 cannot properly resolve an appeal without further fact-
22 finding to file a motion to remand); BIA Practice Manual Ch.
4
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1 5.8(b) (“[P]arties submitting new evidence should articulate
2 the purpose of the new evidence and explain its prior
3 unavailability.”); see also Matter of Fedorenko, 19 I. & N.
4 Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an appellate
5 body, the BIA may not review evidence proffered for the first
6 time on appeal).
7 For the foregoing reasons, the petition for review is
8 DENIED in part and DISMISSED in part.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe
11 Clerk of Court
5
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