2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-24-2012

Zhao Lin v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3265

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3265

___________

ZHAO MEI LIN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A095-369-049)

Immigration Judge: Honorable Rosalind K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 22, 2012

Before: SMITH, HARDIMAN and STAPLETON , Circuit Judges

(Opinion filed: February 24, 2012)

___________

OPINION

___________

PER CURIAM

Zhao Mei Lin petitions for review of the Board of Immigration Appeals‟s (“BIA”) 

final order of removal. For the reasons that follow, we will deny the petition in part and 
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dismiss it in part.

I.

Lin, a native and citizen of the People‟s Republic of China, entered the United 

States on or about January 11, 2001. On January 3, 2002, he filed an affirmative 

application for asylum, withholding of removal, and relief under the Convention Against 

Torture (“CAT”), claiming that family planning officials in China had subjected his wife 

to a forced abortion and, later, forced sterilization. Shortly after Lin filed that 

application, the former Immigration and Naturalization Service initiated removal 

proceedings against him, charging him with being removable for having entered the 

United States without valid entry documents. At the initial hearing before Immigration 

Judge (“IJ”) Jeffrey S. Chase in New York, New York, Lin conceded the charge of 

removability.

Shortly after relocating to Philadelphia, Pennsylvania, in early 2008, Lin 

successfully moved to transfer his removal proceedings to the immigration court in 

Philadelphia. At the initial hearing before IJ Rosalind K. Malloy (hereinafter “the IJ”) in 

Philadelphia, Lin changed the basis for his application,1asserting that his claim was now 

“based on his association with an underground church in China and the fact that he is a 

 

1 At that hearing, Lin‟s counsel stated that Lin was no longer eligible for relief based on 

his original claim, and alluded to Lin v. U.S. Dep‟t of Justice, 494 F.3d 296 (2d Cir. 

2007) (en banc). In that case (which involved a different alien with the same name), the 

United States Courts of Appeals for the Second Circuit held that the Immigration and 

Nationality Act, as amended, “does not provide that a spouse . . . of someone who has 

been forced to undergo, or is threatened with, an abortion or sterilization is automatically 

eligible for „refugee‟ status.” Id. at 309. In February 2009, our Court, sitting en banc, 

adopted the Second Circuit‟s analysis. See Lin-Zheng v. Att‟y Gen. of the U.S., 557 F.3d 

147, 157 (3d Cir. 2009) (en banc). 
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practicing Christian here in the United States.” (A.R. at 164.) In May 2009, the IJ held a 

hearing on the merits of Lin‟s amended application. Lin testified that, after his wife was 

sterilized in 2000, he began attending an “underground” Christian church in China.2 

After Lin arrived in the United States, he began attending a Christian church in Brooklyn, 

New York. He continued to attend that Brooklyn church even after relocating to 

Philadelphia. Lin averred that if he were to return to China, he would again attend an 

underground church and might also hand out flyers “to promote the love [of] Jesus Christ 

. . . and to ask other people to join us.” (Id. at 200-01.)

Following Lin‟s testimony, the IJ denied his application. With respect to Lin‟s 

asylum claim, the IJ found Lin‟s testimony lacking in credibility. The IJ also found that, 

even if Lin‟s testimony were credible, there was “absolutely no evidence” that he was 

persecuted in the past, and his claim of future harm was “purely speculative” and 

“baseless.” (Id. at 126-27.) The IJ concluded that, because Lin had not met the standard 

for asylum, he necessarily could not meet the standard for withholding of removal. As 

for Lin‟s CAT claim, the IJ concluded that he had “failed to establish that anyone would 

be interested in torturing him for any reason upon return to China.” (Id. at 128.)

Lin appealed the IJ‟s decision to the BIA. In July 2011, the BIA dismissed the 

appeal. With respect to Lin‟s asylum claim, the BIA concluded that the IJ‟s adverse 

credibility finding was not clearly erroneous, and that Lin “has not sufficiently 

corroborated his claim that he is a practicing Christian or attended an underground church 

 

2

Lin testified that the church‟s meetings took place in a co-worker‟s home. 
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in China.” (Id. at 4.) The BIA also agreed with the IJ that Lin‟s fear of future 

persecution was speculative:

Although [Lin] contends that he attended an 

underground church in 2000 and will be persecuted because 

of this, he has not submitted persuasive evidence that the 

authorities are looking for him. He also contends that he will 

resume going to an underground church upon returning to 

China, and will be persecuted because of this. The State 

Department‟s Country Reports on Human Rights Practices for 

China, 2007 (Country Reports), and International Religious 

Freedom Report for China, 2007 (Religious Report) show 

detention and harassment of unregistered Protestant groups. 

However, the Country Reports and Religious Report show 

that the authorities handle “house churches” differently in 

different regions. [Lin] has not adequately established that he 

will be persecuted if he attends an underground church in his 

region.

[Lin] contends that he might start passing out flyers 

praising Christianity upon returning to China, but this is an 

equivocal statement. Further, he testified that he did not pass 

out flyers when he was previously in China because he was 

too busy working. Further, [he] did not provide evidence to 

corroborate that passing out flyers, or similar activity, 

objectively establishes a well-founded fear of persecution.

(Id. (footnote and citations omitted).) The BIA also agreed with the IJ‟s rejection of 

Lin‟s claims for withholding of removal and CAT relief.

Lin now seeks review of the BIA‟s decision.

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. 

§ 1252(a)(1). We review the agency‟s factual findings, which include its finding as to 

whether an alien has demonstrated a well-founded fear of future persecution, for 
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substantial evidence. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under 

this deferential standard of review, we may not disturb those findings “unless any 

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B).

Where, as here, an alien seeking asylum does not allege past persecution, he must 

establish that he has a well-founded fear of future persecution. See Chavarria, 446 F.3d 

at 515-16 (citing 8 U.S.C. § 1101(a)(42)(A)). To make this showing, he must 

“demonstrate a subjective fear that is supported by objective evidence that persecution is 

a reasonable possibility.” Yu v. Att‟y Gen. of the U.S., 513 F.3d 346, 348 (3d Cir. 2008) 

(internal quotation marks and citation omitted). The term “persecution” includes “threats 

to life, confinement, torture, and economic restrictions so severe that they constitute a 

threat to life or freedom,” but “does not encompass all treatment that our society regards 

as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 

(3d Cir. 1993).

The substantial evidence in this case supports the agency‟s finding that Lin‟s fear 

of future persecution was too speculative to be well-founded.3 The U.S. State 

 

3

Since we conclude that the record does not compel a finding of a well-founded fear of 

future persecution, we need not address the parties‟ arguments concerning the agency‟s 

adverse credibility and lack of corroboration findings. We do note, however, that the 

Government‟s claim that we are foreclosed from reviewing those issues is meritless. 

Even if we were to agree with the Government that Lin failed to properly present those 

issues to the BIA, we would nonetheless have jurisdiction to review them because the 

BIA addressed them in its decision. See Lin v. Att‟y Gen. of the U.S., 543 F.3d 114, 

122-24 (3d Cir. 2008) (concluding that, although the petitioner had failed to challenge the 

IJ‟s adverse credibility determination in his appeal to the BIA, this Court nonetheless had 

jurisdiction to review that issue because the BIA had considered the issue sua sponte).
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Department‟s 2007 International Religious Freedom Report for China, which was part of 

the record and relied upon by the BIA, indicates that the treatment of unregistered 

religious groups “varied significantly from region to region.” (A.R. at 496.) Although 

Lin highlights the report‟s finding that the Chinese government closed churches in Fujian 

Province — the province in which he was born — he has not pointed to any additional 

evidence from that province, let alone shown that the record compels a finding that there 

is a reasonable possibility that he would be singled out for persecution if he returned 

there. Additionally, Lin has not indicated which underground church he would join if he 

returned to China, and his testimony that “maybe one day I will start to give out these 

flyers,” (id. at 201), is simply too speculative to bolster his claim. To the extent he 

argues that (1) there is a pattern or practice of persecution in China against Christians, 

and (2) “the IJ failed to consider whether the prospect of forced clandestine practice of 

his faith would constitute persecution” (Pet‟r‟s Br. 29 (internal quotation marks and 

citation omitted)), we lack jurisdiction to consider these arguments because he failed to 

raise them on appeal to the BIA. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 

330 F.3d 587, 594-95 (3d Cir. 2003) (stating that “an alien is required to raise and 

exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve 

the right of judicial review of that claim”). 

Since Lin has not satisfied the standard for asylum, he cannot meet the higher 

standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d 

Cir. 2003). Nor is he entitled to relief on his CAT claim, for the record does not compel a 
7

finding that he would likely be tortured by, or with the acquiescence of, the Chinese 

government if removed to China.4 See Shehu v. Att‟y Gen. of the U.S., 482 F.3d 652, 

658 (3d Cir. 2007) (reciting standard for CAT relief).

In light of the above, Lin‟s petition will be denied in part and dismissed in part. 

 

4 Given that a challenge to the denial of Lin‟s CAT claim clearly lacks merit, we need not 

resolve the question of whether Lin sufficiently preserved such a challenge in his brief.