                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-23-2004

Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2790




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                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-2790


                                        YU LIN,
                                             Petitioner

                                           v.

               JOHN ASHCROFT, Attorney General of the United States,
                                        Respondent


                            On Appeal from the
                IMMIGRATION AND NATURALIZATION SERVICE
                            (No.A76-968-103)




                           Argued October 28, 2004
              Before: NYGAARD, AMBRO, and GARTH, Circuit Judges.

                               (Filed November 23, 2004)

H. Raymond Fasano, Esq. (Argued)
Madeo & Fasano
299 Broadway, Suite 810
New York, NY 10007
      Counsel for Petitioner

Jeffrey A. Wadsworth, Esq. (Argued)
United States Department of Justice, Civil Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Douglas E. Ginsburg, Esq.
Allen W. Hausman, Esq.
Lyle D. Jentzer, Esq.
Andrew Eschen, Esq.
United States Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20004
       Counsel for Respondent
                                            _____

                                   OPINION OF THE COURT




NYGAARD, Circuit Judge.

       Petitioner, Yu Lin 1 , seeks review of the Board of Immigration Appeals’ decision

denying her request for asylum. Lin claims that if repatriated to China she would face

“reeducation through labor” for violating China’s exit policy. The BIA, however, found that

Petitioner failed to establish past persecution or a well-founded fear of future persecution,

and thus denied asylum. It found that Lin failed to show a clear probability of persecution

in the People’s Republic of China based on one of the five protected statutory grounds of

race, religion, nationality, membership in a particular social group, or political opinion. 8

U.S.C. §§ 1158, 1253(h). The BIA also noted that Petitioner did not establish that China’s

exit policy constitutes punishment for invidious reasons rather than a mere law of general

applicability.



       1
         We note that Petitioner and Respondent state, in their briefs, that Petitioners’s name
is “Yu Lin.” The Office of the Clerk, however, listed Petitioner’s name as “Lu Lin.” For
clarity, we will call Petitioner “Yu Lin.”

                                              2
       On appeal, Petitioner claims that the BIA erred by failing to analyze whether her

action of illegally departing China constitutes “political opinion.” Petitioner also claims that

she is a member of a particular social group, namely Chinese citizens who have been

repatriated after entering the United States illegally.

       We have jurisdiction to review a final order by the Board pursuant to 8 U.S.C. § 1252.

The decision of the BIA must be upheld if “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” See INS v. Elias-Zacharias, 502

U.S. 478, 481 (1992). A BIA decision may only be reversed if the evidence presented by

Petitioner is such that a reasonable fact-finder would have to conclude that the requisite fear

of persecution existed.     See Elias-Zacharias, 502 U.S. at 481; NLRB v. Columbian

Enameling & Stamping Co., 306 U.S. 292, 300 (1939). For the reasons set forth below, we

deny the petition for review.

       Petitioner failed to establish that China’s exit policy amounts to persecution, rather

than merely a law of general applicability. See Chanco v. INS, 82 F.3d 298, 300 (9th Cir.

1996) (“If the anticipated punishment is in conformity with the general law of the country

concerned, fear of such prosecution will not itself make the applicant a refugee, even if the

prosecution pertains to a punishable act committed out of political motive.”). Generally, a

country’s restriction on travel abroad is not persecution. See Li v. INS, 92 F.3d 985, 988 (9th

Cir. 1996). Likewise, the possibility of future prosecution for violating travel laws is not

persecution. See Janusiak v. INS, 947 F.2d 46, 49 (3d Cir. 1992). Lin has not shown that



                                               3
any punishment she would receive would rise to the level of severity necessary to constitute

persecution as provided by the exception in Chang v. INS, 119 F.3d 1055 (3d Cir. 1997).

Therefore, in Lin’s case, China’s exit policy does not provide her with a basis for asylum.

       Furthermore, Petitioner’s claimed social group does not constitute a protected class.

Petitioner claims that she is a member of a “social group” that is composed of Chinese

citizens that have been repatriated after entering the United States illegally. For purposes of

asylum proceedings, an alleged social group cannot be created by the alleged underlying

persecution; the social group must exist independently of the persecution (and before the

persecution) suffered by the applicant for asylum. See Lukwago v. Ashcroft, 329 F.3d 157,

171-172 (3d Cir. 2003). Accordingly, Petitioner failed to identify herself as being within a

“particular social group” that is subject to persecution and therefore is not entitled to asylum.

       We will deny Petitioner’s petition for review.
