    08-2303-ag
    Lin v. Holder
                                                                                   BIA
                                                                              Sichel, IJ
                                                                           A79-066-510
                             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
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 1 st day of March, two thousand ten.

    PRESENT:
             JOSEPH M. McLAUGHLIN,
             ROBERT D. SACK,
             PETER W. HALL,
                     Circuit Judges.
    _______________________________________

    HANG LIN,
                        Petitioner,

                        v.                                 08-2303-ag
                                                           NAC

    ERIC H. HOLDER JR.,
    U.S. ATTORNEY GENERAL 1
             Respondent.
    _______________________________________




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             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 the respondent in this case.
FOR PETITIONER:        Dehai Zhang, Flushing, New York.

FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
                       Attorney General, Civil Division,
                       Michael P. Lindemann, Assistant
                       Director, Ethan B. Kanter, Senior
                       Litigation Counsel, U.S. Department
                       of Justice, Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.

     Hang Lin, a native and citizen of the People’s Republic
of China, seeks review of an April 17, 2007 order of the BIA
vacating on remand the December 1, 2004 decision of
Immigration Judge (“IJ”) Helen Sichel and reversing the
grant of his application for relief under the Convention
Against Torture (“CAT”). In re Hang Lin, No. A79 066 510
(B.I.A. Apr. 17, 2008), rev’g No. A79 066 510 (Immig. Ct.
N.Y. City Dec. 1, 2004). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.

     When the BIA does not adopt the decision of the IJ to
any extent, we review only the decision of the BIA. See Yan
Chen v. Gonzalez, 417 F.3d 268, 271 (2d Cir. 2005).
We review the agency’s factual findings under the
substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
Questions of law and the application of law to undisputed
fact are reviewed de novo. Salimatou Bah v. Mukasey, 529
F.3d 99, 110 (2d Cir. 2008).

     The BIA reasonably concluded that any harsh treatment
that Lin might be subjected to upon removal to China would
not amount to torture. In Pierre v. Gonzales, 502 F.3d 109,
118-19 (2d Cir. 2007), we held that, to constitute torture
under the CAT, mistreatment or abuse must be inflicted with
the “specific intent” to cause severe pain and suffering.
See also 8 C.F.R. § 208.18(a)(5) (“In order to constitute
torture, an act must be specifically intended to inflict
severe physical or mental pain or suffering.”). Because

                             2
motive is “critical” to a determination of whether a
particular instance of harsh treatment rises to the level of
torture, a CAT claimant must provide some evidence, either
direct or circumstantial, of the specific intent of his
alleged torturers. See Pierre, 502 F.3d at 119.

     As the BIA noted, the beatings that Lin suffered during
his one-year confinement at the detention center were
inflicted by his fellow detainees as a consequence of his
failure to make enough artificial flowers to meet his
production quota for the center. In addition, the BIA
observed that, according to Lin’s own testimony, the
officials at the detention center would intervene when the
abuse became severe if they were made aware of the
situation. Assuming arguendo that Lin presented
particularized evidence indicating that he would face severe
mistreatment in detention upon return to China, which he did
not, he still fails to clear a necessary hurdle. Lin is
required to satisfy the specific intent requirement imposed
by the CAT, see 8 C.F.R. § 208.18(a)(5); Pierre, 502 F.3d at
118-19, and there was no evidence that any mistreatment Lin
might be subjected to would be inflicted with the specific
intent to cause him severe physical or mental pain. See
Pierre, 502 F.3d at 118-19. Accordingly, the BIA did not
err in finding that such mistreatment would not rise to the
level of torture as the CAT defines that term. See id.

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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