     18-241
     Lin v. Barr
                                                                         BIA
                                                                      Bain, IJ
                                                                 A078 730 926
                        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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 8th day of July, two thousand twenty.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            RAYMOND J. LOHIER, JR.,
 9            STEVEN J. MENASHI,
10                 Circuit Judges.
11   _____________________________________
12
13   XING LIN,
14                 Petitioner,
15
16                 v.                                   18-241
17                                                      NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                Yee Ling Poon; Deborah
24                                  Niedermeyer, Law Office of Yee
25                                  Ling Poon, LLC, New York, NY.
26
27   FOR RESPONDENT:                Joseph H. Hunt, Assistant Attorney
28                                  General; John S. Hogan, Assistant
29                                  Director; Todd J. Cochran, Trial
 1                                   Attorney, Office of Immigration
 2                                   Litigation, United States
 3                                   Department of Justice, Washington,
 4                                   DC.

 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioner Xing Lin, a native and citizen of the People’s

10   Republic of China, seeks review of a January 3, 2018 decision

11   of the BIA affirming a February 15, 2017 decision of an

12   Immigration    Judge   (“IJ”)    denying   asylum   as   a   matter   of

13   discretion and granting withholding of removal.              In re Xing

14   Lin, No. A 078 730 926 (B.I.A. Jan. 3, 2018), aff’g No. A 078

15   730 926 (Immig. Ct. N.Y. City Feb. 15, 2017).            We assume the

16   parties’ familiarity with the underlying facts and procedural

17   history.

18       Under the circumstances of this case, we have reviewed

19   the IJ’s decision as supplemented by the BIA.            See Yan Chen

20   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).           We review the

21   discretionary denial of asylum for abuse of discretion.                8

22   U.S.C.     §   1252(b)(4)(D)       (“[T]he    Attorney        General’s

23   discretionary judgment whether to grant relief under section

24   1158(a) of this title shall be conclusive unless manifestly

                                        2
 1   contrary to the law and an abuse of discretion.”); Wu Zheng

 2   Huang v. INS, 436 F.3d 89, 96 (2d Cir. 2006).

 3       In    deciding   whether   to   deny   asylum   as   a   matter   of

 4   discretion,    the   agency    considers    “the    totality   of     the

 5   circumstances” by “balancing . . . favorable and adverse

 6   factors.”    Wu Zheng Huang, 436 F.3d at 98; see also In re H-,

 7   21 I. & N. Dec. 337, 347–48 (BIA 1996).       “[T]he BIA has stated

 8   that ‘[t]he danger of persecution will outweigh all but the

 9   most egregious adverse factors.’”          Wu Zheng Huang, 436 F.3d

10   at 98 (quoting In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA

11   1996)).     The experience of past persecution also weighs in

12   favor of a grant of asylum, as do “general humanitarian

13   reasons, independent of the circumstances that led to the

14   applicant’s refugee status, such as his or her age, health,

15   or family ties.”      In re H-, 21 I. & N. Dec. at 347–48.

16   Adverse factors include criminal convictions, “significant

17   violations of national immigration laws,” and the “manner of

18   entry into this country.”       Wu Zheng Huang, 436 F.3d at 98.

19   The regulations instruct:

20       In the event that an applicant is denied asylum
21       solely in the exercise of discretion, and the
22       applicant is subsequently granted withholding of
23       deportation or removal under this section, thereby
24       effectively precluding admission of the applicant’s
25       spouse or minor children following to join him or
                                         3
 1          her, the denial of asylum shall be reconsidered.
 2          Factors to be considered will include the reasons
 3          for the denial and reasonable alternatives available
 4          to the applicant such as reunification with his or
 5          her spouse or minor children in a third country.
 6
 7   8 C.F.R. § 1208.16(e).

 8          The agency did not abuse its discretion in denying Lin

 9   asylum as an exercise of discretion.               Although the BIA could

10   have more fully explained its conclusion that Lin’s fear of

11   separation from his wife was speculative, its conclusion was

12   not erroneous because Lin’s wife is not currently in removal

13   proceedings and, according to Lin’s asylum application, she

14   has remained in the United States since 2000.                 Further, the

15   BIA considered the issue of family unity and that Lin’s wife

16   and children are in the United States, and thus complied with

17   8 C.F.R. § 1208.16(e).        See Wu Zheng Huang, 436 F.3d at 94

18   (noting that petitioner’s appeal of a discretionary denial of

19   asylum to the BIA “allowed the agency to fulfill its duty

20   under 8 C.F.R. § 1208.16(e) to reconsider the denial with

21   attention to ‘the reasons for the denial and reasonable

22   alternatives available to the applicant such as reunification

23   with    his   or   her   spouse   or       minor   children   in   a   third

24   country.’”).

25


                                            4
 1          Lin argues that the agency should have considered as a

 2   mitigating     factor       that   his   attorney    devised    the    scheme

 3   involving the fraudulent letter, and that he engaged in this

 4   conduct because he feared returning to China.                  However, the

 5   IJ did not overlook Lin’s attorney’s involvement in the fraud,

 6   but rather found that Lin minimized his responsibility, which

 7   included writing the fraudulent letter himself, obtaining an

 8   envelope from China, and providing the letter and envelope to

 9   his attorney.        The IJ also reasonably determined that Lin’s

10   fraud here was distinct from instances where individuals

11   engage in fraud to escape persecution because Lin was in the

12   United States at the time of the fraud.               See Matter of Pula,

13   19 I. & N. Dec. 467, 474 (BIA 1987) (“The use of fraudulent

14   documents to escape the country of persecution itself is not

15   a significant adverse factor while, at the other extreme,

16   entry under the assumed identity of a United States citizen

17   with    a   United    States       passport,    which   was    fraudulently

18   obtained by the alien from the United States Government; is

19   very    serious     fraud.”    (superseded      by   regulation   on    other

20   grounds)).

21          Further, the agency considered the relevant factors.

22   The    IJ   noted    that    Lin’s   positive    equities     included   his


                                              5
 1   substantial family ties and his residence in the United States

 2   of more than 17 years.       The BIA considered the issue of family

 3   unity and noted that Lin would not be separated from his three

 4   children and that his fear of separation from his wife was

 5   speculative.       In addition, although “past persecution [is] a

 6   major factor favoring asylum,” Wu Zheng Huang, 436 F.3d at 98

7    n.11, Lin was granted withholding of removal based on his

 8   fear of future persecution, not based on past persecution.

9    Moreover, “significant violations of national immigration

10   laws”   is   an    adverse   factor;   thus   the   agency   reasonably

11   considered the submission of a fraudulent letter, in an

12   attempt to evade removal, as an adverse factor.          See Wu Zheng

13   Huang, 436 F.3d at 98.

14       Accordingly, the agency did not abuse its discretion when

15   it concluded that Lin’s submission of a fraudulent letter to

16   the IJ outweighed the positive factors and that the totality

17   of the circumstances did not merit a favorable exercise of

18   discretion.       See id. at 98–99; see also Ke Zhen Zhao v. U.S.

19   Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“An abuse

20   of discretion may be found . . . where the [BIA’s] decision

21   provides no rational explanation, inexplicably departs from

22   established policies, is devoid of any reasoning, or contains


                                        6
1   only summary or conclusory statements; that is to say, where

2   the Board has acted in an arbitrary or capricious manner.”

3   (internal citations omitted)).

4       For the foregoing reasons, the petition for review is

5   DENIED.   All pending motions and applications are DENIED and

6   stays VACATED.

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe,
9                               Clerk of Court




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