     16-4105
     Lin v. Whitaker
                                                                                   BIA
                                                                              Videla, IJ
                                                                           A088 996 431

                            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 1st day of February, two thousand nineteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10                 Circuit Judges.
11   _____________________________________
12
13   KE LONG LIN,
14            Petitioner,
15
16                     v.                                        16-4105
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Richard Tarzia, Belle Mead, NJ.
24
25   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
26                                     Attorney General; Cindy S.
27                                     Ferrier, Assistant Director; Matt
28                                     A. Crapo, Attorney, Office of
29                                     Immigration Litigation, United


      06152016-10
1                                        States Department of Justice,
2                                        Washington, DC.
3
4            UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED in part and DISMISSED in part.

8            Petitioner Ke Long Lin, a native and citizen of the

9    People’s Republic of China, seeks review of a November 28,

10   2016, BIA decision that affirmed the March 10, 2016, decision

11   of an Immigration Judge (“IJ”) denying asylum, withholding of

12   removal, relief under the Convention Against Torture (“CAT”),

13   and cancellation of removal.            In re Ke Long Lin, No. A088 996

14   431 (B.I.A. Nov. 28, 2016), aff’g No. A088 996 431 (Immig.

15   Ct.     N.Y.    City   Mar.   10,   2016).     We   assume    the   parties’

16   familiarity with the underlying facts and procedural history

17   in this case.          Under these circumstances, we have reviewed

18   both      the   IJ’s   and    the   BIA’s   opinions   “for   the   sake   of

19   completeness.”         Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

20   524, 528 (2d Cir. 2006).

21           Lin applied for asylum, withholding of removal, and CAT

22   relief, asserting that he fears persecution based on the birth

23   of his three children in the United States in violation of

24   China’s population control program.             The applicable standards

                                             2
     07102018-10
1    of review are well established.              See Jian Hui Shao v. Mukasey,

2    546 F.3d 138, 157-58 (2d Cir. 2008).

3              As an initial matter, contrary to Lin’s contention, the

4    agency        applied   the   correct     burden      when    considering         his

5    application.         See id. at 156-57 & n.15.          For largely the same

6    reasons as set forth in Jian Hui Shao, we find no error in

7    the agency’s determination that Lin failed to satisfy his

8    burden for asylum, withholding of removal, and CAT relief.

9    See id. at 158-67; see also Paul v. Gonzales, 444 F.3d 148,

10   156-57 (2d Cir. 2006).                While the petitioners in Jian Hui

11   Shao were from Fujian Province, and Lin is from Zhejiang

12   Province, as with the evidence discussed in Jian Hui Shao,

13   Lin’s evidence related to Zhejiang Province does not describe

14   the use of force in the enforcement of the family planning

15   policy against Chinese nationals returning with U.S.-born

16   children.        See id. at 160-61, 165-66, 171-72.

17           Our    jurisdiction      to    review   the    agency’s          denial    of

18   cancellation of removal based on Lin’s failure to establish

19   hardship        to      a   qualifying       relative        is     limited        to

20   constitutional          claims    and     questions      of       law,    8 U.S.C.

21   § 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales, 516 F.3d

22   35, 39-40 (2d Cir. 2008), for which our review is de novo,


                                              3
     07102018-10
1    Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).                          When

2    assessing jurisdiction, we “study the arguments asserted” to

3    “determine,         regardless     of    the    rhetoric    employed    in    the

4    petition, whether it merely quarrels over the correctness of

5    the factual findings” or raises a true question of law.                      Xiao

6    Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

7    2006).

8            Lin’s argument that the agency erred in characterizing

9    his daughter’s health issues as “manageable” is not colorable

10   because that is how her doctor characterized them.                            See

11   Barco-Sandoval, 516 F.3d at 40 (“[W]e lack jurisdiction to

12   review        any   legal   argument     that    is   so   insubstantial      and

13   frivolous as to be inadequate to invoke federal-question

14   jurisdiction . . . .”).                 Lin’s remaining arguments merely

15   quarrel with the agency’s factual findings.                      See Xiao Ji

16   Chen, 471 F.3d at 330-31.

17           We agree with the Government that Lin’s brief on appeal

18   to the BIA was inadequate to serve also as a motion to remand

19   for       consideration       of    new        evidence.        See    8 C.F.R.

20   § 1003.1(d)(3)(iv) (requiring a party asserting that the BIA

21   cannot        properly   resolve    an    appeal      without   further   fact-

22   finding to file a motion to remand); BIA Practice Manual Ch.


                                               4
     07102018-10
1    5.8(b) (“[P]arties submitting new evidence should articulate

2    the     purpose   of   the   new   evidence   and   explain   its   prior

3    unavailability.”); see also Matter of Fedorenko, 19 I. & N.

4    Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an appellate

5    body, the BIA may not review evidence proffered for the first

6    time on appeal).

7            For the foregoing reasons, the petition for review is

8    DENIED in part and DISMISSED in part.

 9                                      FOR THE COURT:
10                                      Catherine O’Hagan Wolfe
11                                      Clerk of Court




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