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Xue Feng Lin v. Holder

United States Court of Appeals, Second Circuit
Jul 14, 2011
430 F. App'x 26 (2d Cir. 2011)

Opinion

No. 10-1392-ag.

July 14, 2011.

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.

Dehai Zhang, Flushing, NY, for Petitioner.

Tony West, Assistant Attorney General; Douglas E. Ginsburg, Assistant Director; Karen L. Melnik, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: ROBERT D. SACK, REENA RAGGI, PETER W. HALL, Circuit Judges.


SUMMARY ORDER


Xue Feng Lin, a native and citizen of China, seeks review of an April 1, 2010 order of the BIA affirming the June 2, 2008 decision of Immigration Judge ("IJ") Patricia A. Rohan, which denied Lin's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Xue Feng Lin, No. A095 688 005 (B.I.A. Apr. 1, 2010), affg No. A095 688 005 (Immig. Ct. N.Y.C. June 2, 2008). We assume the parties' familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have considered both the IJ's and the BIA's opinions "for the sake of completeness." Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

The agency reasonably concluded that Lin did not suffer past persecution based on her mother's forced sterilization. See Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 308 (2d Cir. 2007) ( en banc) (holding that "applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer"); Shoo Yan Chen v. U.S. Dep't of Justice, 417 F.3d 303, 305 (2d Cir. 2005) (holding that children of people persecuted under a coercive family planning policy are not per se eligible for asylum). The agency also reasonably concluded that Lin's experiences, including being detained for one day and being unable to register at a vocational school, did not rise to the level of persecution. See Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006) (upholding agency's determination that applicant was not eligible for withholding of removal based on "brief detention after which he was released "without harm"); Ai Feng Yuan v. US. Dep't of Justice, 416 F.3d 192, 198 (2d Cir. 2005) (upholding agency's determination that applicant had not been persecuted where applicant "was detained only briefly, and was not mistreated while in custody"), overruled on other grounds by Shi Liang Lin, 494 F.3d at 305; Damko v. INS, 430 F.3d 626, 636-37 (2d Cir. 2005) (concluding that applicant's expulsion from university, while "not fair," did not constitute persecution, where it did not result in "economic deprivation so severe that her life or her freedom was threatened"), vacated on other grounds and superseded by Damko v. INS, 178 Fed.Appx. 85(2nd Cir. 2006). The agency also reasonably concluded that, without a spouse or children, Lin's claim that she fears future persecution because she is of child-bearing age and wants to have children is "speculative," and insufficient to demonstrate a well-founded fear of future persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (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").

Furthermore, the agency reasonably determined that Lin failed to establish a well-founded fear of persecution or eligibility for CAT relief based on her illegal departure from China. See Saleh v. U.S. Deft of Justice, 962 F.2d 234, 239 (2d Cir. 1992) ("Punishment for violation of a generally applicable criminal law is not persecution."); see also Mu Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005) (evidence that some individuals who leave China illegally are imprisoned, and that human rights violations including torture occur in Chinese prisons, is insufficient to establish a clear probability of torture for a particular illegal emigrant); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 2003) (holding relevant inquiry in determining whether a particular petitioner is eligible for CAT relief is whether someone in the petitioner's "particular alleged circumstances" is more likely than not to be tortured).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and 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(b).


Summaries of

Xue Feng Lin v. Holder

United States Court of Appeals, Second Circuit
Jul 14, 2011
430 F. App'x 26 (2d Cir. 2011)
Case details for

Xue Feng Lin v. Holder

Case Details

Full title:XUE FENG LIN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney…

Court:United States Court of Appeals, Second Circuit

Date published: Jul 14, 2011

Citations

430 F. App'x 26 (2d Cir. 2011)