Opinion
No. 07-1894-ag NAC.
January 3, 2008.
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.
FOR PETITIONER: Yee Ling Poon, New York, New York. FOR RESPONDENT: Peter D. Keisler, Asst. Atty. General, Civil Division, Douglas E. Ginsburg, Senior Litigation Counsel, Ari Nazarov, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.
PRESENT: HON. JON O. NEWMAN, HON. GUIDO CALABRESI, HON. PETER W. HALL, Circuit Judges.
Petitioner Shufang Lin, a native and citizen of China, seeks review of an April 10, 2007 order of the BIA affirming the September 15, 2005 decision of Immigration Judge ("IJ") Adam Opaciuch denying Lin's applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Shufang Lin, No. A 96 207 951 (B.I.A. Apr. 10, 2007), aff'g No. A 96 207 951 (Immig. Ct. N.Y. City Sept. 15, 2005). We assume the parties' familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly "adopt" the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, the Court may consider both the IJ's and the BIA's opinions for the sake of completeness if doing so does not affect the Court's ultimate conclusion. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). We review the agency's factual findings under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 n. 7 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007). However, we will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004). The Court reviews de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).
Although petitioner is challenging the denial of relief in "asylum-only" proceedings, this Court nonetheless has jurisdiction under 8 U.S.C. § 1252(a)(1) because the denial of such relief is the functional equivalent of a removal order.See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir. 2006).
As an initial matter, petitioners must raise to the BIA the specific issues they later raise in this Court. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). While not jurisdictional, this judicially imposed exhaustion requirement is mandatory. Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). Here, Lin did not assert either before the IJ or in her appeal to the BIA that she feared persecution based on the imputed political opinion of her family or her membership in a particular social group. The Government does not argue that this failure to exhaust should preclude our consideration of these arguments. See id. at 124 (describing the issue exhaustion requirement as an "affirmative defense subject to waiver"). Nevertheless, we decline to consider them where they were not raised before the agency in the first instance. See id. at 107 n. 1(b) ("Even if the government does not point out a failure to exhaust an issue before the agency, such a failure to exhaust is sufficient ground for the reviewing court to refuse to consider that issue."). Additionally, Lin does not challenge in her brief to this Court the agency's finding that she did not suffer past persecution and, therefore, has waived any challenge to that finding. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).
The record supports the agency's denial of Lin's asylum application because she failed to demonstrate a well-founded fear of persecution. See Zhou Yun Zhang, 386 F.3d at 73 n. 7. The agency properly found that Lin's fear of the enforcement of China's family planning policy is speculative where she has no children and has not demonstrated that she is capable of having children. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that, absent solid support in the record for the petitioner's assertion that he would be subjected to forced sterilization, his fear was "speculative at best" even though his wife was pregnant with their second child); cf. Rui Ying Lin v. Gonzales, 445 F.3d 127 (2d Cir. 2006) (finding that substantial evidence did not support the IJ's conclusion that the petitioner's claim was "too speculative" in the absence of evidence of her infertility where record evidence supported that "she already had two children, that she planned to have more, that she had gone to great lengths to avoid being sterilized in China, and that she had removed her IUD after escaping to the United States).
The agency also appropriately denied relief based on Lin's fear that loan sharks might persecute her for failing to pay back the money she borrowed to be smuggled to the United States. Lin points to no record evidence substantiating her assertion that loan sharks would harm her or that the Chinese government would not be willing to protect her. See Jian Xing Huang, 421 F.3d at 128-29.
Lin also challenges the agency's finding that she does not have a well-founded fear of persecution based on her illegal departure from China, arguing that the background materials demonstrate that she would be tortured and mistreated upon return. The agency appropriately found that the 2004 State Department Profile and Report indicated that first time offenders like Lin were generally only fined and detained long enough for relatives to arrange their transportation home, that harsher penalties were reserved for smugglers, and that U.S. officials have been unable to confirm that illegal emigrants have been abused upon return to China. Although Lin argues that the 2004 Profile does not demonstrate that no cases of abuse occurred, she has submitted no evidence that would compel us to conclude that illegal emigrants, especially first-time offenders, are abused in any manner upon their return.See Zhou Yun Zhang, 386 F.3d at 73 n. 7. Lin's argument that the agency failed to evaluate "any of the relevant background material in the record" is unavailing where the agency considered the State Department's most recent Profile and Report on China, and Lin has failed to identify any significant documents that the agency failed to consider.See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 336 (2d Cir. 2006) (holding that this Court does not require the IJ to engage in "robotic incantations" to show that the IJ examined each piece of evidence in the record as long as the IJ takes into account "significant factual assertions" offered by a petitioner).
Because Lin was unable to show the objective likelihood of persecution needed to make out an asylum claim, she was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Additionally, Lin's CAT claim must also necessarily fail where it is predicated upon the same facts as her asylum and withholding claims. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (holding that torture is "something more severe than the kind of treatment that would suffice to prove persecution"); Mu Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005) (finding that a petitioner is not "entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China").
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).