09-0782-ag

Lin v. Holder

BIA

IJ, Brennan

A 095 708 580

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

4 New York, on the 15 day of January, two thousand ten. th

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 JOSÉ A. CABRANES,

9 ROBERT A. KATZMANN,

10 Circuit Judges. 

11

12 _____________________________________

13

14 NUAN LIN,

15 Petitioner,

16

17 v. 09-0782-ag

18 NAC

19 ERIC J. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22

23 ______________________________________

24 

25 FOR PETITIONER: G. Victoria Calle, New York, New

26 York.
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General; Emily Anne Radford,

3 Assistant Director; David Schor,

4 Trial Attorney, Office of

5 Immigration Litigation, United

6 States Department of Justice,

7 Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Nuan Lin, a native and citizen of China, seeks review

14 of a January 29, 2009 order of the BIA affirming the

15 September 21, 2006 decision of Immigration Judge (“IJ”) Noel

16 Brennan, which denied her application for relief under the

17 Convention Against Torture (“CAT”). In re Lin, No. A095 708

18 580 (B.I.A. Jan. 29, 2009), aff’g No. A095 708 580 (Immig.

19 Ct. N.Y. City Sept. 21, 2006). We assume the parties’

20 familiarity with the underlying facts and procedural history

21 in this case.

22 Under the circumstances of this case, this Court

23 reviews the decision of the IJ as supplemented by the BIA. 

24 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 

25 The applicable standards of review are well-established. See

26 Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 288-89
3

1 (2d Cir. 2007); Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

2 2008).

3 Substantial evidence supports the agency’s denial of

4 Lin’s application for CAT relief. In the absence of any

5 particularized evidence, an applicant cannot demonstrate

6 that she is more likely than not to be tortured “based

7 solely on the fact that she is part of the large class of

8 persons who have left China illegally” and on generalized

9 evidence indicating that torture occurs in Chinese prisons. 

10 Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60

11 (2d Cir. 2005).

12 While Lin argues that her testimony expressing a

13 general fear of being punished for her illegal departure

14 combined with background evidence attesting to the

15 increasing prevalence of torture in China should suffice to

16 establish that she will more likely than not be tortured if

17 removed to China, this evidence does not demonstrate that

18 someone in her “particular alleged circumstances,” is likely

19 to face torture. See Mu-Xing Wang v. Ashcroft, 320 F.3d

20 130, 143-44 (2d Cir. 2003). Therefore, substantial evidence

21 supports the agency’s conclusion that she failed to

22 establish eligibility for CAT relief. See Pierre v.
4

1 Gonzales, 502 F.3d 109, 121 (2d Cir. 2007) (holding that

2 beyond evidence of inhumane prison conditions, a CAT

3 claimant must provide some evidence that the authorities act

4 with the specific intent to inflict physical or mental pain

5 or suffering on those detained).

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

9 is VACATED, and any pending motion for a stay of removal in

10 this petition is DISMISSED as moot. Any pending request for

11 oral argument in this petition is DENIED in accordance with

12 Federal Rule of Appellate Procedure 34(a)(2), and Second

13 Circuit Local Rule 34(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17

18 By:___________________________