Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr. is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-4215-ag

Lin v. Holder

BIA

Nelson, IJ

A200 037 104

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 6 day of January, two thousand ten. th

5 PRESENT:

6 ROGER J. MINER,

7 JOHN M. WALKER, JR.,

8 REENA RAGGI,

9 Circuit Judges.

10 _______________________________________

11

12 YUE PING LIN,

13 Petitioner,

14 v. 08-4215-ag

15 NAC

16 ERIC H. HOLDER, JR., UNITED STATES

17 ATTORNEY GENERAL,*

18 Respondent.

19 _______________________________________
2

1 FOR PETITIONER: Feng Li, Law Offices of Fengling

2 Liu, New York, New York.

3 FOR RESPONDENT: Tony West, Assistant Attorney

4 General; Carl H. McIntyre Jr.,

5 Assistant Director; Regina Byrd,

6 Attorney, Office of Immigration

7 Litigation, United States Department

8 of Justice, Washington, D.C.

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 Yue Ping Lin, a native and citizen of the People’s

14 Republic of China, seeks review of a July 30, 2008 order of

15 the BIA, affirming the October 2, 2007 decision of

16 Immigration Judge (“IJ”) Barbara A. Nelson, which denied his

17 application for asylum, withholding of removal, and relief

18 under the Convention Against Torture (“CAT”). In re Yue

19 Ping Lin, No. A200 037 104 (B.I.A. July 30, 2008), aff’g No.

20 A200 037 104 (Immig. Ct. N.Y. City Oct. 2, 2007). We assume

21 the parties’ familiarity with the underlying facts and

22 procedural history in this case.

23 When the BIA adopts the decision of the IJ and

24 supplements the IJ’s decision, we review the decision of the

25 IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
3

1 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s

2 factual findings under the substantial evidence standard. 

3 See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey,

4 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions

5 of law and the application of law to undisputed fact. 

6 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

7 As an initial matter, despite Lin’s failure to raise to

8 the BIA his argument that he demonstrated his eligibility

9 for asylum and withholding of removal on account of his

10 resistance to China’s family planning policy, see 8 U.S.C. 

11 § 1101(a)(42), we consider such argument exhausted because

12 the BIA addressed that issue on appeal. See Theodoropoulos

13 v. INS, 358 F.3d 162, 171 (2d Cir. 2004); see also Xian Tuan

14 Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir. 2006) (per curiam). 

15 Nonetheless, the BIA did not err in finding that Lin

16 failed to demonstrate past persecution based on his claim of

17 resistance to the family planning policy. See Shi Liang Lin

18 v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d Cir. 2007)

19 (en banc). The BIA has defined “resistance” in the context

20 of family planning to cover “a wide range of circumstances,

21 including expressions of general opposition, attempts to

22 interfere with enforcement of government policy in
4

1 particular cases, and other overt forms of resistance to the

2 requirements of the family planning law.” Matter of 

3 S-L-L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006); see also Shi

4 Liang Lin, 494 F.3d at 313. Impregnating one’s partner, who

5 subsequently was forcibly sterilized, is not alone an act of

6 resistance. See Shi Liang Lin, 494 F.3d at 313 (citing Ru7 Jian Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir. 2004)). 

8 Thus, contrary to Lin’s assertion, having two children in

9 violation of the family planning policy is not an act of

10 resistance to the family planning policy. See Shi Liang

11 Lin, 494 F.3d at 313. 

12 Even assuming that Lin established “resistance,” the

13 BIA did not err in finding that he failed to allege harm

14 amounting to persecution on account of that resistance. See

15 id. Indeed, contrary to Lin’s assertion, he did not

16 demonstrate his eligibility for relief based on his claim of

17 economic persecution because he did not provide any evidence

18 establishing that the fines imposed caused him “severe

19 economic disadvantage.” Matter of T-Z-, 24 I. & N. Dec.

20 163, 170-75 (B.I.A. 2007); see also Guan Shan Liao v. U.S.

21 Dep’t. of Justice, 293 F.3d 61, 70 (2d Cir. 2002). 

22 Likewise, Lin’s assertion that he suffered an emotional loss
5

1 as a result of his wife’s forced sterilization does not

2 demonstrate that he suffered harm rising to the level of

3 persecution. See Shi Liang Lin, 494 F.3d at 309

4 (recognizing “that an individual whose spouse undergoes, or

5 is threatened with, a forced abortion or involuntary

6 sterilization may suffer a profound emotional loss as a

7 partner and a potential parent,” but does not suffer

8 persecution on account of a protected ground solely on

9 account of such forced abortion or involuntary

10 sterilization).

11 Accordingly, the agency reasonably concluded that Lin

12 failed to establish that he suffered any independent,

13 personal persecution qualifying him for relief. Id. 

14 Moreover, Lin fails to challenge the agency’s determination

15 that he did not demonstrate a well-founded fear of future

16 persecution because his only “argument” regarding this

17 assertion is a single conclusory sentence. See Yueqing

18 Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). 

19 For the foregoing reasons, the petition for review is

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

21 removal that the Court previously granted in this petition

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

23 this petition is DISMISSED as moot. Any pending request for
6

1 oral argument in this petition is DENIED in accordance with

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

3 Circuit Local Rule 34(b).

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

7 By:___________________________