         08-5649-ag
         Lin v. Holder
                                                                                        BIA
                                                                           Holmes-Simmons, IJ
                                                                                A097 385 233
                          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 16 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                GUIDO CALABRESI,
 9                REENA RAGGI,
10                        Circuit Judges.
11       _______________________________________
12
13       CUI YAN LIN,
14                Petitioner,
15
16                       v.                                     08-5649-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Yee Ling Poon; Robert Duk-Hwan Kim,
25                                     New York, New York.
1    FOR RESPONDENT:        Tony West, Assistant Attorney
2                           General, Civil Division; Linda S.
3                           Wernery, Assistant Director; Scott
4                           Rempell, Trial Attorney, Office of
5                           Immigration Litigation, United States
6                           Department of Justice, Washington,
7                           D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Cui Yan Lin, a native and citizen of the People’s

14   Republic of China, seeks review of an October 31, 2008,

15   order of the BIA reversing the March 22, 2007, decision of

16   Immigration Judge (“IJ”) Theresa Holmes-Simmons, which

17   granted her applications for asylum and withholding of

18   removal, but denied her application for relief under the

19   Convention Against Torture (“CAT”).     In re Cui Yan Lin, No.

20   A097 385 233 (B.I.A. Oct. 31, 2008), rev’g No. A097 385 233

21   (Immig. Ct. N.Y. City Mar. 22, 2007).     We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history in this case.

24       When the BIA rejects the IJ’s decision in its entirety,

25   we review only the decision of the BIA.     See Yan Chen v.

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



                                   2
1    agency’s factual findings under the substantial evidence

2    standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.

3    Dep't of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

4    We review de novo questions of law and the application of

5    law to undisputed fact.   See, e.g., Salimatou Bah v.

6    Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

7        Lin argues that the BIA’s determination that she does

8    not have a well-founded fear of persecution was in error for

9    two reasons: 1) the BIA impermissibly reviewed de novo the

10   IJ’s factual findings; and 2) the BIA’s legal conclusion, as

11   supported by the IJ’s factual findings, is not supported by

12   substantial evidence in the record.   Both arguments are

13   without merit.   First, the BIA was entitled to review de

14   novo the IJ’s legal determination regarding Lin’s

15   eligibility for relief.   See Matter of A-S-B-, 24 I. & N.

16   Dec. 493, 496-97 (BIA 2008) (explaining that the question of

17   whether uncontested facts are sufficient to establish a

18   well-founded fear of persecution is a legal determination

19   that is not subject to the clearly erroneous standard of

20   review); 8 C.F.R. § 1003.1(d)(3) (requiring the BIA to

21   review the IJ’s findings of fact for clear error and

22   questions of law, discretion, and judgment de novo).

                                   3
1        Second, substantial evidence supports the BIA’s legal

2    determination, based on the IJ’s factual findings, that

3    Lin’s fear of undergoing a mandatory gynecological

4    examination was too speculative to merit relief.     When an

5    alien has not suffered a per se form of persecution, i.e.,

6    abortion and sterilization, she can still qualify for asylum

7    if she can establish that: (1) she resisted China’s family

8    planning policy, (2) she has been persecuted in the past or

9    has a well-founded fear of persecution in the future, and

10   (3) the persecution was or would be because of her

11   resistance to the policy.   See 8 U.S.C. § 1101(a)(42).    The

12   BIA did not address whether Lin had engaged in resistence.

13   Rather, it found that she had not been persecuted in the

14   past, a finding she does not dispute, and that her fear of

15   future harm was not well-founded.   As to the latter finding,

16   the BIA determined that gynecological examinations are not a

17   per se form of persecution and that, in any event, she could

18   not establish an objectively reasonable fear of being forced

19   to undergo such an examination upon her return to China.       We

20   need not decide whether mandatory gynecological examinations

21   constitute persecution, because we agree with the BIA that

22   Lin failed to establish an objectively reasonable fear that


                                   4
1    she would be forced to undergo such an examination upon her

2    return.

3        As the agency found, Lin had never been subjected to a

4    mandatory gynecological examination and there was no

5    evidence in the record to suggest that Chinese officials had

6    notified her family that she was required to undergo such an

7    examination. Thus, her fear of a hypothetical future

8    examination was not objectively reasonable.   See Jian Xing

9    Huang v. INS, 421 F.3d 125 ,128-29 (2d Cir. 2005) (finding

10   that petitioner’s alleged fear of persecution is

11   “speculative at best” where it lacked any solid support in

12   the record for his assertion that he would be subject to

13   forced sterilization).   Accordingly the agency reasonably

14   denied Lin’s asylum application.

15       Because Lin’s claim for withholding of removal and CAT

16   relief was based on the same factual predicate as her asylum

17   claim, and the BIA reasonably found she was unable to meet

18   her burden for asylum, she was necessarily unable to meet

19   the higher standard required for withholding of removal and

20   CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

21   Cir. 2006); Xue Hong Yang v. U.S. Dep’t. of Justice, 426

22   F.3d 520, 523 (2d Cir. 2005). Finally, Lin’s claim that she


                                   5
1    faces punishment upon her return based on her illegal

2    departure from China is not exhausted, and we decline to

3    consider it.   See Lin Zhong v. U.S. Dep’t of Justice, 480

4    F.3d 104, 119-20 (2d Cir. 2007).

5        For the foregoing reasons, the petition for review is

6    DENIED.   As we have completed our review, any stay of

7    removal that the Court previously granted in this petition

8    is VACATED, and any pending motion for a stay of removal in

9    this petition is DISMISSED as moot. Any pending request for

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16
17




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