09-2394-ag

Lin v. Holder

BIA

Balasquide, IJ

A099 668 404

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 1 day of March, two thousand ten. st

PRESENT:

ROBERT D. SACK,

RICHARD C. WESLEY,

PETER W. HALL,

 Circuit Judges. 

_______________________________________

JUAN LIN,

Petitioner, 

 v. 09-2394-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Gary Yerman, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General, Civil Division; Susan K.

Houser, Senior Litigation Counsel;

Francis W. Fraser, Senior Litigation

Counsel, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
2

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.

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

of China, seeks review of a May 12, 2009, order of the BIA,

affirming the June 27, 2007, decision of Immigration Judge

(“IJ”) Javier Balasquide, which denied her application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Juan Lin, No.

A099 668 404 (B.I.A. May 12, 2009), aff’g No. A099 668 404

(Immig. Ct. N.Y. City June 27, 2007). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we review the

decision of the IJ as supplemented by the BIA. See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 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). 

We find no error in the BIA’s holding that Lin failed

to establish an objectively reasonable fear of persecution,

even assuming Lin’s credibility and that she established

that she practices Christianity in this country. Contrary

to Lin’s argument, the BIA did not conduct impermissible de

novo review of the IJ’s factual findings. Rather, the BIA

found, based on the evidence of record, and assuming the

facts as she had alleged them, that Lin was not eligible for

relief. The BIA’s analysis in that regard was a permissible

eligibility determination. See 8 C.F.R. § 1003.1(d)(3);

Matter of V-K-, 24 I.&.N. Dec. 500, 501 (BIA 2008).

Moreover, the BIA’s eligibility determination was not

erroneous. Lin testified that although she did not know any

Christians who had been persecuted in China, she feared

persecution because she intended to join an underground

church if she returns to that country. After weighing that

testimony and the country conditions evidence in the record,

the BIA reasonably determined that she failed to establish

an objectively reasonable fear of persecution. See Jian

Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)
3

(holding that a fear is not objectively reasonable if it

lacks “solid support” in the record and is merely

“speculative at best.”); see also Hongsheng Leng v. Mukasey,

528 F.3d 135, 143 (2d Cir. 2008) (holding that to establish

a well-founded fear of persecution in the absence of any

evidence of past persecution, an alien must make some

showing that authorities in his country of nationality are

either aware or likely to become aware of his activities).

Because Lin was unable to establish the objective

likelihood of persecution required to meet her burden of

proof for asylum, her withholding of removal and CAT claims

necessarily fail to the extent that they were based on the

same factual predicate. See Paul v. Gonzales, 444 F.3d 148,

156 (2d Cir. 2006). Lin also failed to argue before the BIA

with sufficient specificity that she is eligible for CAT

relief because of the debts she owes to smugglers. We

therefore deem any such argument unexhausted. See Foster v.

INS, 376 F.3d 75, 78 (2d Cir. 2004); Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). In

any event, as the IJ found, Lin failed to present evidence

that she was likely to be tortured on that or any other

basis.

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 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk