    11-5186
    Lin v. Holder
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A099 941 252
                     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 27th day of September, two thousand twelve.

    PRESENT:
             JOSÉ A. CABRANES,
             PETER W. HALL,
             SUSAN L. CARNEY,
                  Circuit Judges.
    ______________________________________

    MING HUI LIN, AKA KERONG ZHENG, AKA
    KU LEONG ZHENG,
             Petitioner,

                    v.                                     11-5186
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Mona Liza Fabular Lao, Brooklyn, New
                                  York.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Janice K. Redfern,
                                  Senior Litigation Counsel; Gerald M.
                                  Alexander, Trial Attorney, Office of
                       Immigration Litigation, United
                       States Department of Justice,
                       Washington, D.C.

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

     Ming Hui Lin, a native and citizen of China, seeks
review of a November 15, 2011, order of the BIA affirming
the September 8, 2009, decision of Immigration Judge (“IJ”)
Sandy K. Hom, which denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Ming Hui Lin, No. A099 941
252 (B.I.A. Nov. 15, 2011), aff’g No. A099 941 252 (Immig.
Ct. New York City, Sept. 8, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.

     Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS, 494 F.3d
281, 289 (2d Cir. 2007).

     Initially, Lin challenges the agency’s pretermission of
his asylum application as untimely, arguing that he filed
his application within a reasonable time of when “he felt
that profound significance of Falun Gong practice in his
life.” However, we lack jurisdiction to review the agency’s
pretermission of Lin’s asylum application because his
challenge to the correctness of the agency’s factual
findings or its justification for its discretionary choices
does not raise a constitutional claim or a question of law.
See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

     Lin also challenges the agency’s denial of withholding
of removal, arguing that he established eligibility through
his credible testimony, because all Falun Gong practitioners
are subject to persecution in China regardless of whether
they are a leader or a lay practitioner. Because Lin was

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not persecuted in the past, in order to establish it was
more likely than not that he would be persecuted in the
future, as required for withholding of removal, see 8 C.F.R.
§ 1208.16(b), Lin was required to show either that he would
be singled out for persecution, or that there existed a
pattern or practice of persecution of a group of persons
similarly situated to him. Hongsheng Leng v. Mukasey, 528
F.3d 135, 142 (2d Cir. 2008) (per curiam); accord 8 C.F.R.
§ 1208.16(b)(2). Without evidence that Chinese officials
were aware or likely to become aware of his practice of
Falun Gong in the United States, however, Lin’s testimony
was inadequate to establish his eligibility for relief. See
Hongsheng Leng, 528 F.3d at 142; INS v. Phinpathya, 464 U.S.
183, 188-89 n. 6 (1984) (unsupported statements of counsel
in a brief are not evidence); Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005) (per curiam) (“In the absence
of solid support in the record,” a petitioner’s fear of
future persecution is “speculative at best”).

     Finally, Lin challenges the agency’s denial of CAT
relief, asserting that the government did not satisfy its
burden to rebut the presumption that it is more likely than
not that he will be tortured in China. Lin’s argument,
however, misapprehends the burden of proof for CAT relief.
“The burden of proof is on the applicant for withholding of
removal under [the CAT] to establish that it is more likely
than not that he ... would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
Moreover, the only evidence Lin provides in support of his
CAT claim is a statement broadly describing adverse human
rights conditions in China. Because Lin only offers general
statements about country conditions in China and no evidence
regarding his particular circumstances, his CAT claim fails.
Wang v. Ashcroft, 320 F.3d 130, 144 n. 21 (2d Cir. 2003)
(rejecting an applicant's CAT claim because the applicant
"has in no way established that someone in his particular
alleged circumstances is more likely than not to be
tortured").




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     For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, the pending motion for a stay of removal in this
petition is DENIED as moot.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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