         11-3656
         Lin v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A087 467 426
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of July, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       KE LIN,
14                       Petitioner,
15
16                       v.                                     11-3656
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Douglas B. Payne, New York, NY.
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; Jennifer Williams,
27                                      Senior Litigation Counsel; Colette
28                                      J. Winston, Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      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 DENIED.

 5       Petitioner Ke Lin, a native and citizen of the People’s

 6   Republic of China, seeks review of an August 31, 2011 order

 7   of the BIA affirming the April 15, 2010 decision of

 8   Immigration Judge (“IJ”) George T. Chew, denying his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Ke Lin,

11   No. A087 467 426 (B.I.A. August 31, 2011), aff’g A087 467

12   426 (Immig. Ct. N.Y. City April 15, 2010).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

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

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

18   applicable standards of review are well-established.    See 8

19   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

20   513 (2d Cir. 2009).   Because Lin does not challenge the

21   agency’s denial of CAT relief, we consider only his claims

22   for asylum and withholding of removal.

23


                                   2
 1       Lin asserts that he suffered past persecution at the

 2   hands of teachers and employers who discriminated against

 3   him and schoolmates who beat him due to his mental

 4   disability.   This Court has held that “it is well

 5   established that private acts may be persecution if the

 6   government has proved unwilling to control such actions.”

 7   See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342

 8   (2d Cir. 2006).     However, as the agency reasonably found,

 9   the 2009 State Department Country Report for China

10   demonstrates that the Chinese government is willing to

11   protect persons with disabilities, prohibiting

12   discrimination against persons with disabilities,

13   criminalizing physical abuse of disabled children, and

14   providing thousands of persons with disabilities with job-

15   placement and training services and incentives to employers

16   who hire persons with disabilities.     Because Lin could, but

17   did not, attempt to avail himself of those protections, the

18   agency reasonably found that he failed to show that the

19   Chinese government was unable or unwilling to protect him

20   from persecution.     Cf. Poradisova v. Gonzales, 420 F.3d 70,

21   80 (2d Cir. 2005) (finding that the IJ erred by attaching

22   adverse weight to Jewish petitioner’s failure to report


                                     3
 1   persecution to police where evidence indicated that the

 2   police were antisemitic).

 3       The agency also reasonably found that Lin failed to

 4   establish that his fear that the Chinese government would

 5   sterilize him was objectively reasonable.    The 2009 Country

 6   Report indicated only that married couples that may transmit

 7   disabling congenital defects to their children may be

 8   required to use contraception or undergo sterilization.

 9   Because, as Lin concedes, his disability is not congenital

10   and he did not allege that he was subjected to or threatened

11   with sterilization when he married his wife, the agency

12   reasonably found that he would not be subject to family

13   planning measures based on his disability.    Contrary to

14   Lin’s argument that the law may be expanded in the future to

15   include persons with noncongenital defects, that fear is

16   speculative.   See Jian Xing Huang v. INS, 421 F.3d 125, 129

17   (2d Cir. 2005).

18       Because Lin was unable to establish his eligibility for

19   asylum, he necessarily failed to meet the higher standard

20   required to succeed on a claim for withholding of removal.

21   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

22



                                   4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6




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