06152016-10 16-4105 Lin v. Whitaker BIA Videla, IJ A088 996 431 

### 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 TO 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 Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 1 st**  **day of February, two thousand nineteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **PIERRE N. LEVAL,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **KE LONG LIN,** 13 Petitioner **,** 14 15 **v. 16-4105** 16 **NAC** 17 **MATTHEW G. WHITAKER, ACTING** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Richard Tarzia, Belle Mead, NJ. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Cindy S. 26 Ferrier, Assistant Director; Matt 27 A. Crapo, Attorney, Office of 28 Immigration Litigation, United 292 07102018-10 States Department of Justice, 1 Washington, DC. 2 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED in part and DISMISSED in part. 7 Petitioner Ke Long Lin, a native and citizen of the 8 People’s Republic of China, seeks review of a November 28, 9 2016, BIA decision that affirmed the March 10, 2016, decision 10 of an Immigration Judge (“IJ”) denying asylum, withholding of 11 removal, relief under the Convention Against Torture (“CAT”), 12 and cancellation of removal. In re Ke Long Lin, No. A088 996 13 431 (B.I.A. Nov. 28, 2016), aff’g No. A088 996 431 (Immig. 14 Ct. N.Y. City Mar. 10, 2016). We assume the parties’ 15 familiarity with the underlying facts and procedural history 16 in this case. Under these circumstances, we have reviewed 17 both the IJ’s and the BIA’s opinions “for the sake of 18 completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 19 524, 528 (2d Cir. 2006). 20 Lin applied for asylum, withholding of removal, and CAT 21 relief, asserting that he fears persecution based on the birth 22 of his three children in the United States in violation of 23 China’s population control program. The applicable standards 243 07102018-10 of review are well established. See Jian Hui Shao v. Mukasey , 1 546 F.3d 138, 157-58 (2d Cir. 2008). 2 As an initial matter, contrary to Lin’s contention, the 3 agency applied the correct burden when considering his 4 application. See id. at 156-57 & n.15. For largely the same 5 reasons as set forth in Jian Hui Shao , we find no error in 6 the agency’s determination that Lin failed to satisfy his 7 burden for asylum, withholding of removal, and CAT relief. 8 See id. at 158-67; see also Paul v. Gonzales , 444 F.3d 148, 9 156-57 (2d Cir. 2006). While the petitioners in Jian Hui 10 Shao were from Fujian Province, and Lin is from Zhejiang 11 Province, as with the evidence discussed in Jian Hui Shao , 12 Lin’s evidence related to Zhejiang Province does not describe 13 the use of force in the enforcement of the family planning 14 policy against Chinese nationals returning with U.S.-born 15 children. See id. at 160-61, 165-66, 171-72. 16 Our jurisdiction to revie w the agency’s denial of 17 cancellation of removal based on Lin’s failure to establish 18 hardship to a qualifying relative is limited to 19 constitutional claims and questions of law, 8 U.S.C. 20 § 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales , 516 F.3d 21 35, 39-40 (2d Cir. 2008), for which our review is de novo, 224 07102018-10 Pierre v. Holder , 588 F.3d 767, 772 (2d Cir. 2009). When 1 assessing jurisdiction, we “study the arguments asserted” to 2 “determine, regardless of the rhetoric employed in the 3 petition, whether it merely quarrels over the correctness of 4 the factual findings” or raises a true question of law. Xiao 5 Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 329 (2d Cir. 6 2006). 7 Lin’s argument that the agency erred in characterizing 8 his daughter’s health issues as “manageable” is not colorable 9 because that is how her doctor characterized them. See 10 Barco-Sandoval , 516 F.3d at 40 (“[W]e lack jurisdiction to 11 review any legal argument that is so insubstantial and 12 frivolous as to be inadequate to invoke federal-question 13 jurisdiction . . . .”). Lin’s remaining arguments merely 14 quarrel with the agency’s factual findings. See Xiao Ji 15 Chen , 471 F.3d at 330-31. 16 We agree with the Government that Lin’s brief on appeal 17 to the BIA was inadequate to serve also as a motion to remand 18 for consideration of new evidence. See 8 C.F.R. 19 § 1003.1(d)(3)(iv) (requiring a party asserting that the BIA 20 cannot properly resolve an appeal without further fact21 finding to file a motion to remand); BIA Practice Manual Ch. 225 07102018-10 5.8(b) (“[P]arties submitting new evidence should articulate 1 the purpose of the new evidence and explain its prior 2 unavailability.”); see also Matter of Fedorenko , 19 I. & N. 3 Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an appellate 4 body, the BIA may not review evidence proffered for the first 5 time on appeal). 6 For the foregoing reasons, the petition for review is 7 DENIED in part and DISMISSED in part. 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe 10 Clerk of Court 11