11-1811-ag

Jin v. Holder

BIA

Balasquide, IJ

 A099 936 147

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 8th 4 day of February, two thousand twelve.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 BARRINGTON D. PARKER,

9 REENA RAGGI,

10 Circuit Judges. 

11 ______________________________________

12

13 YU JIN,

14 Petitioner, 

15

16 11-1811-ag

17 v. NAC

18

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22

23 _____________________________________

24

25 FOR PETITIONER: Emanuel Liu, Flushing, New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Mary Jane Candaux,

29 Assistant Director; Aimee J.

30 Frederickson, Trial Attorney, Office

31 of Immigration Litigation, Civil

32 Division, United States Department

33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner, Yu Jin, a native and citizen of the

6 People’s Republic of China, seeks review of a April 8, 2011

7 decision of the BIA affirming the May 22, 2009 decision of

8 Immigration Judge (“IJ”) Javier Balasquide denying her

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Yu Jin,

11 No. A099 936 147 (B.I.A. April 8, 2011), aff’g No. A099 936

12 147 (Immig. Ct. N.Y.C. May 22, 2009). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history of the case.

15 Under the circumstances of this case, we have reviewed

16 the decision of the IJ as modified and supplemented by the

17 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

18 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

19 522 (2d Cir. 2005). The applicable standards of review are

20 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

21 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

22 As a preliminary matter, Jin concedes that this Court

23 lacks jurisdiction to review the pretermission of her asylum

2
1 application unless she establishes a constitutional claim or

2 question of law. She has failed to do so. 

3 Jin argues that the agency denied her due process

4 rights by arbitrarily deeming her application untimely. 

5 However, the agency did not err by requiring that Jin submit

6 corroborating evidence such as plane ticket stubs from the

7 numerous flights Jin took after fleeing China or witness

testimony that was reasonably available to her.* 8 See 

9 8 U.S.C. § 1158(a)(2)(B); Diallo v. INS, 232 F.3d 279, 285-

10 86 (2d Cir. 2000). Because Jin has not asserted a colorable

11 constitutional claim or any other question of law with

12 regards to the determination that her asylum application was

13 untimely, we lack jurisdiction to review that determination,

14 and consider only Jin’s claims for withholding of removal

15 and CAT relief. See 8 U.S.C. § 1158(a)(2)(B),(3). 

16 Jin argues that the agency erred by finding that she

17 did not suffer past persecution based on her two-day

18 detention by Chinese authorities and demotion for attending

* Jin argues that the agency failed to make a finding

that witness testimony was reasonably available. 

However, the IJ noted in his decision that he expected

witness testimony because Jin had a one-year continuance

to obtain a witness. It was Jin’s burden to show then

that the witness testimony she planned on presenting was

no longer reasonably available. See Diallo, 232 F.3d at

285-86. 

3
1 an underground church meeting. To the contrary, the agency

2 reasonably found that these isolated events did not involve

3 any degree of physical or significant financial harm, and,

4 consequently, did not rise to the level of persecution. See

5 Jian Qui Liu v. Holder, 632 F.3d 820, 821-22 (2d Cir. 2011)

6 (upholding finding that applicant who was detained for two

7 days did not establish persecution because altercation in

8 which he was slapped and repeatedly punched had no lasting

9 physical effect and occurred prior to any detention);

10 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

11 Cir. 2006) (holding that harm must be sufficiently severe,

12 rising above mere harassment, to constitute persecution). 

13 Although Jin’s contention that the agency

14 mischaracterized the background material in finding that she

15 did not establish a well-founded fear of persecution has

16 some merit, we conclude that remand is not required. 

17 Contrary to the agency’s finding, the 2006 State Department

18 reports stated that members, in addition to leaders, of

19 underground churches were subject to abuse. Furthermore,

20 the BIA improperly found that Jin’s fear of persecution was

21 diminished because her family had remained unharmed in China

22 as the record did not indicate that Jin’s family also

23 practiced Christianity. See Melgar de Torres v. Reno, 191

4
1 F.3d 307, 313 (2d Cir. 1999) (finding that where asylum

2 applicant’s similarly-situated relatives continued to live

3 in petitioner’s native country, claim of well-founded fear

4 was diminished). 

5 Despite these errors, however, “[the Court is] not

6 required to remand where there is no realistic possibility

7 that, absent the errors, the IJ or BIA would have reached a

8 different conclusion.” Alam v. Gonzales, 438 F.3d 184, 187

9 (2d Cir. 2006). The BIA also concluded that Jin had not

10 demonstrated that it was more likely than not that she would

11 be persecuted, and that conclusion is both reasonable and

12 dispositive. Although the State Department reports indicate

13 that house church members are sometimes detained and abused,

14 the reports also indicate that the house movement flourishes

15 in certain regions without threat of government sanction. 

16 Jin did not allege that persecution continued in her region

17 or that the authorities continued to seek her out. Because

18 Jin’s claim for withholding of removal and CAT relief were

19 based on the same factual predicate, the agency did not err

20 in denying both forms of relief given its conclusion that

21 Jin failed to establish a likelihood of future harm. See

22 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

5
1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of removal

3 that the Court previously granted in this petition is VACATED,

4 and any pending motion for a stay of removal in this petition

5 is DISMISSED as moot. Any pending request for oral argument

6 in this petition is DENIED in accordance with Federal Rule of

7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

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