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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 8 th** **day of February, two thousand twelve.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **BARRINGTON D. PARKER,** 8 **REENA RAGGI,** 9 Circuit Judges**.** 10

**______________________________________** 11 12 **YU JIN,** 13 Petitioner**,** 14 15 **11-1811-ag** 16 **v. NAC** 17 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21 22

**_____________________________________** 23 24 **FOR PETITIONER: Emanuel Liu, Flushing, New York**

. 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Mary Jane Candaux,** 28 **Assistant Director; Aimee J.** 29 **Frederickson, Trial Attorney, Office** 30 **of Immigration Litigation, Civil** 31 **Division, United States Department** 32 **of Justice, Washington, D.C.** 33UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner, Yu Jin, a native and citizen of the 5 People’s Republic of China, seeks review of a April 8, 2011 6 decision of the BIA affirming the May 22, 2009 decision of 7 Immigration Judge (“IJ”) Javier Balasquide denying her 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Yu Jin , 10 No. A099 936 147 (B.I.A. April 8, 2011), aff’gNo. A099 936 11 147 (Immig. Ct. N.Y.C. May 22, 2009). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history of the case. 14 Under the circumstances of this case, we have reviewed 15 the decision of the IJ as modified and supplemented by the 16

BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 17 2005); Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 18 522 (2d Cir. 2005). The applicable standards of review are 19 well-established. See8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 20 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 As a preliminary matter, Jin concedes that this Court 22 lacks jurisdiction to review the pretermission of her asylum 23

2application unless she establishes a constitutional claim or 1 question of law. She has failed to do so. 2 Jin argues that the agency denied her due process 3 rights by arbitrarily deeming her application untimely. 4 However, the agency did not err by requiring that Jin submit 5 corroborating evidence such as plane ticket stubs from the 6 numerous flights Jin took after fleeing China or witness 7 testimony that was reasonably available to her. * See 8 8 U.S.C. § 1158(a)(2)(B); Diallo v. INS,232 F.3d 279, 285- 9 86 (2d Cir. 2000). Because Jin has not asserted a colorable 10 constitutional claim or any other question of law with 11 regards to the determination that her asylum application was 12 untimely, we lack jurisdiction to review that determination, 13 and consider only Jin’s claims for withholding of removal 14 and CAT relief. See 8 U.S.C. § 1158(a)(2)(B),(3). 15 Jin argues that the agency erred by finding that she 16 did not suffer past persecution based on her two-day 17 detention by Chinese authorities and demotion for attending 18

* 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. 3an underground church meeting. To the contrary, the agency 1 reasonably found that these isolated events did not involve 2 any degree of physical or significant financial harm, and, 3 consequently, did not rise to the level of persecution. See 4 Jian Qui Liu v. Holder, 632 F.3d 820, 821-22 (2d Cir. 2011) 5 (upholding finding that applicant who was detained for two 6 days did not establish persecution because altercation in 7 which he was slapped and repeatedly punched had no lasting 8 physical effect and occurred prior to any detention); 9 Ivanishvili v. U.S. Dep’t of Justice , 433 F.3d 332, 342 (2d 10 Cir. 2006) (holding that harm must be sufficiently severe, 11 rising above mere harassment, to constitute persecution). 12 Although Jin’s contention that the agency 13 mischaracterized the background material in finding that she 14 did not establish a well-founded fear of persecution has 15 some merit, we conclude that remand is not required. 16 Contrary to the agency’s finding, the 2006 State Department 17 reports stated that members, in addition to leaders, of 18 underground churches were subject to abuse. Furthermore, 19 the BIA improperly found that Jin’s fear of persecution was 20 diminished because her family had remained unharmed in China 21 as the record did not indicate that Jin’s family also 22 practiced Christianity. See Melgar de Torres v. Reno , 191 23
4F.3d 307, 313 (2d Cir. 1999) (finding that where asylum 1 applicant’s similarly-situated relatives continued to live 2 in petitioner’s native country, claim of well-founded fear 3 was diminished). 4 Despite these errors, however, “[the Court is] not 5 required to remand where there is no realistic possibility 6 that, absent the errors, the IJ or BIA would have reached a 7 different conclusion.” Alam v. Gonzales , 438 F.3d 184, 187 8 (2d Cir. 2006). The BIA also concluded that Jin had not 9 demonstrated that it was more likely than not that she would 10 be persecuted, and that conclusion is both reasonable and 11 dispositive. Although the State Department reports indicate 12 that house church members are sometimes detained and abused, 13 the reports also indicate that the house movement flourishes 14 in certain regions without threat of government sanction. 15 Jin did not allege that persecution continued in her region 16 or that the authorities continued to seek her out. Because 17 Jin’s claim for withholding of removal and CAT relief were 18 based on the same factual predicate, the agency did not err 19 in denying both forms of relief given its conclusion that 20 Jin failed to establish a likelihood of future harm. See 21 Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 22

5For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DISMISSED as moot. Any pending request for oral argument 5 in this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 7 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12

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