09-1997-ag

Lin v. Holder

BIA

Hladylowycz, IJ

A072 329 089

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 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 Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 27 day of July, two thousand ten. th

PRESENT:

JON O. NEWMAN,

REENA RAGGI,

PETER W. HALL,

 Circuit Judges.

_______________________________________

PING LIN,

Petitioner, 

 v. 09-1997-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Ping Lin, pro se, New York, New

York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Keith I. McManus, Senior

Litigation Counsel, P. Michael

Truman, Trial Attorney, Office of

Immigration Litigation, United
2

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED. The pending motion to proceed in forma

pauperis is DENIED as moot because the filing fee has

already been paid. The pending motion to file fewer copies

and be exempted from submitting a joint appendix is GRANTED. 

Ping Lin, a native and citizen of the People’s Republic

of China, seeks review of a May 8, 2009 order of the BIA,

affirming the September 9, 2002 decision of Immigration

Judge (“IJ”) Roxanne C. Hladylowycz, which denied her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Ping

Lin, No. A072 329 089 (B.I.A. May 8, 2009), aff’g No. A072

329 089 (Immig. Ct. N.Y. City Sept. 9, 2002). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we review the

BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d

619, 622-23 (2d Cir. 2007). The applicable standards of

review are well-established. See Corovic v. Mukasey, 519
3

F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529

F.3d 99, 110 (2d Cir. 2008). 

Substantial evidence supports the BIA’s determination

that Lin failed to demonstrate her eligibility for asylum or

withholding of removal based on her claim that she was

forced to use an intrauterine device (“IUD”). As we

observed in Xia Fan Huang v. Holder, 591 F.3d 124, 129-30

(2d Cir. 2010), the BIA’s determination that forced IUD

insertion is not a per se form of persecution is entitled to

deference. Moreover, the record does not compel the

conclusion that Lin demonstrated “aggravating circumstances”

sufficient to render the insertion of her IUD persecutive. 

See id.; see also Matter of M-F-W- & L-G-, 24 I. & N. Dec.

633, 639-42 (B.I.A. 2008). 

No different conclusion is warranted with respect to

the BIA’s finding that the fine imposed on Lin following the

birth of her third child did not constitute persecution. 

See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70

(2d Cir. 2002). Although imposition of a fine may, under

some circumstances, constitute persecution, see Guan Shan

Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir.

2002), Lin testified that she could afford to pay the fine
 Although the BIA erred in concluding that Lin 1

suffered no repercussions from her failure to pay the

fine at issue, remand would be futile because the record

does not support the conclusion that the fine or any

repercussions from Lin’s failure to pay the fine rise to

the level of persecution. See Xiao Ji Chen v. U.S. Dep't

of Justice, 471 F.3d 315, 338-40 (2d Cir.2006).

4

but simply chose not to do so. On this record, the BIA was

not compelled to conclude that the fine placed her at such a

“substantial economic disadvantage” as to render the fine

persecutive. Id. 

1

Because substantial evidence supports the BIA’s

determination that Lin failed to demonstrate that she

suffered past persecution, she was not entitled to a

presumption of a well-founded fear or likelihood of future

persecution. See 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1). 

Nor do we identify any basis for concluding that the BIA’s

determination that Lin failed to prove a well-founded fear

of persecution on account of giving birth to three children

was unsupported. See Jian Xing Huang v. INS, 421 F.3d 125,

129 (2d Cir. 2005) (holding that an applicant’s well-founded

fear claim was “speculative at best” when he failed to

present “solid support” that he would be subject to the

family planning policy upon his return to China); see also

Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008). 
 The BIA erred in concluding that Lin did not 2

express a desire to have more children. However, in

light of Lin’s age and marital status – which the BIA was

entitled to consider, see May 25, 2007 Stipulation and

Order – we conclude that remand on this basis would be

futile. See Xiao Ji Chen v. U.S. Dep't of Justice, 471

F.3d 315, 338-40 (2d Cir.2006). Although Lin also

contends that the BIA erred in concluding that her age

indicated that she was nearing the end of her

childbearing years, the evidence upon which she relies –

a news article regarding a Spanish woman who allegedly

gave birth to twins at age 69 – was not part of the

5

Contrary to Lin’s argument that the BIA engaged in

impermissible fact-finding in concluding that she failed to

prove a well-founded fear of persecution, the BIA was

entitled to review de novo whether Lin was eligible for

relief based on the evidence in the record. See Jian Hui

Shao, 546 F.3d at 162-63 (concluding that the BIA did not

erroneously conduct de novo review of the IJ’s factual

findings by making “a legal determination that, while

[petitioners’] credible testimony was sufficient to

demonstrate a genuine subjective fear of future persecution,

more was needed to demonstrate the objective reasonableness

of that fear”). At the time of the BIA’s decision, the

record indicated that Lin (1) had a third child because her

first two children were girls; (2) voluntarily used

contraception thereafter; and (3) was a 46-year-old widow

not actively seeking to remarry. As the BIA noted, the 2
administrative record and is therefore not properly

considered on appeal. See 8 U.S.C. § 1252(b)(4)(A)

(stating that “court of appeals shall decide the petition

only on the administrative record on which the order of

removal is based”). 

 Lin does not challenge the BIA’s denial of her 3

request for CAT relief in her brief. The argument is

therefore waived. See Norton v. Sam’s Club, 145 F.3d

114, 117 (2d Cir. 1998). 

6

record also gave no indication that Chinese authorities had

inquired about Lin in over 20 years. See Jian Xing Huang,

421 F.3d at 129. In light of the foregoing, the BIA’s

conclusion that Lin did not demonstrate a well-founded fear

of future persecution was supported by substantial evidence.

On this record, the agency properly denied Lin’s

application for asylum. See 8 U.S.C. § 1101(a)(42). As 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 because that claim rested

on the same factual predicate. See Paul v. Gonzales, 444

F.3d 148, 156 (2d Cir. 2006). 

3

Accordingly, the petition for review is DENIED. The

pending motion to proceed in forma pauperis is DENIED as

moot because the filing fee has already been paid. The

pending motion to file fewer copies and be exempted from
7

submitting a joint appendix is GRANTED. As we have completed

our review, the pending motion for a stay of removal is

DISMISSED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk