         09-1332-ag
         Lin v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A099 538 290
                          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 18 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _______________________________________
12
13       CHENG ZHI LIN,
14                Petitioner,
15
16                       v.                                     09-1332-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Michael Brown, Law Offices of
24                                     Michael Brown, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General, Civil Division; Cindy S.
28                                     Ferrier, Senior Litigation Counsel;
29                                     Matt A. Crapo, Trial Attorney,
30                                     Office of Immigration Litigation,
31                                     United States Department of Justice,
32                                     Washington, D.C.
1         UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is GRANTED.

5         Petitioner Cheng Zhi Lin, a native and citizen of the

6    People’s Republic of China, seeks review of a March 4, 2009

7    order of the BIA affirming the December 11, 2006 decision of

8    Immigration Judge (“IJ”) Robert D. Weisel denying his

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).       In re Cheng

11   Zhi Lin, No. A099 538 290 (B.I.A. Mar. 4, 2009), aff’g No.

12   A099 538 290 (Immig. Ct. N.Y. City Dec. 11, 2006).       We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15        Under the circumstances of this case, this Court

16   reviews only the decision of the BIA.       See Yan Chen, 417

17   F.3d 268, 271 (2d Cir. 2005).       The applicable standards of

18   review are well-established.    See 8 U.S.C. § 1252(b)(4)(B);

19   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20   I.   Asylum and Withholding of Removal

21        In this case, the BIA assumed Lin’s credibility, but

22   nonetheless found that the physical harm Lin endured at the

23   hands of Chinese authorities during his detention “does not

                                     2
1    rise to the level of persecution.”   In light of our ruling

2    in Beskovic v. Gonzales that the agency must be “keenly

3    sensitive to the fact that a ‘minor beating’ or, for that

4    matter, any physical degradation designed to cause pain,

5    humiliation, or other suffering, may rise to the level of

6    persecution if it occurred in the context of an arrest or

7    detention on the basis of a protected ground,” the BIA’s

8    conclusory statement is insufficient to permit meaningful

9    review.   467 F.3d 223, 227 (2d Cir. 2006).

10         Because a petitioner who has demonstrated past

11   persecution is presumed to have a well-founded fear of

12   persecution, 8 C.F.R. § 1208.13(b)(1), we cannot predict

13   with confidence that the agency would reach the same

14   conclusion on remand.   See Xiao Ji Chen v. U.S. Dep’t of

15   Justice, 471 F.3d 315, 338 (2d Cir. 2006).

16   II.   CAT Relief

17         Although Lin sets forth the standard for CAT relief in

18   his brief before this Court, he does not challenge the basis

19   of the agency’s denial of that relief.   Accordingly, we deem

20   any such challenge waived.   See Yueqing Zhang v. Gonzales,

21   426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

22         For the foregoing reasons, the petition for review is

23   GRANTED, and the case REMANDED for further proceedings

                                   3
1    consistent with this order.    As we have completed our

2    review, any pending motion for a stay of removal in this

3    petition is DISMISSED as moot. Any pending request for oral

4    argument in this petition is DENIED in accordance with

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

 6   Circuit Local Rule 34.1(b).
 7
 8
 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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