15-1615
Lin v. Sessions
                                                                                    BIA
                                                                             Bukszpan, IJ
                                                                            A200 602 479

                       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.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
2nd day of March, two thousand seventeen.

PRESENT:
         JOHN M. WALKER, JR.,
         REENA RAGGI,
         GERARD E. LYNCH,
              Circuit Judges.
_____________________________________

LI LIN,
                  Petitioner,

                  v.                                              No. 15-1615
                                                                  NAC
JEFF SESSIONS, UNITED STATES
ATTORNEY GENERAL,
         Respondent.*
_____________________________________

FOR PETITIONER:                      Huiyue Qiu, Union, New Jersey.

FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
                                    Assistant Attorney General; Anthony
                                    P.   Nicastro,   Acting   Assistant

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Jeff Sessions is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
                           Director; Dana M. Camilleri, 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 remaining part.

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

Republic of China, seeks review of the BIA’s affirmance of an

Immigration Judge’s (“IJ’s”) denial of asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).   See In re Li Lin, No. A200 602 479 (B.I.A. Apr. 17,

2015), aff’g No. A200 602 479 (Immig. Ct. N.Y. City Apr. 2,

2013).

    Under the circumstances of this case, we review both the

IJ’s and BIA’s decisions, see Zaman v. Mukasey, 514 F.3d 233,

237 (2d Cir. 2008), applying well established standards of

review, see 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,

562 F.3d 510, 513 (2d Cir. 2009).   In so doing, we assume the

parties’ familiarity with the underlying facts and procedural

history of this case, which we reference only as necessary to

explain our decision to dismiss in part and deny in part.



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       Lin seeks review of the agency’s denial of her asylum

application as untimely filed and its decision that threat of

sterilization is alone insufficient to show past persecution

for purposes of other relief.       We dismiss the petition as to

asylum because we lack jurisdiction to consider Lin’s challenge

to the timeliness ruling.    We deny the petition in remaining

part because threats alone do not constitute past persecution,

and Lin has waived any other arguments by failing to raise them

in her brief.   See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d

Cir. 1998) (“Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on

appeal.”); see also Karaj v. Gonzales, 462 F.3d 113, 119 (2d

Cir. 2006) (holding that petitioners’ “failure to seek review

of the CAT claim deprives [this Court] of jurisdiction”).

  I.     One-Year Bar

       We dismiss Lin’s petition as it relates to the agency’s

pretermission of asylum.    An asylum application must be filed

within one year of arrival in the United States, absent changed

or extraordinary circumstances.      See 8 U.S.C. § 1158(a)(2)(B),

(D).     While we lack jurisdiction to review the agency’s

pretermission of asylum on timeliness grounds, we retain

jurisdiction to review “constitutional claims or questions of


                                3
law.”    8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).           Lin raises no

such    claims   and    asserts     no    changed    or   extraordinary

circumstances.         Instead,     Lin   challenges      the   agency’s

pretermission finding on the basis that the agency ignored her

testimony that she entered the United States in February 2010,

as well as her June 2009 medical record from China, and,

consequently,     failed     to    consider    the   totality    of    the

circumstances.    Because Lin’s challenge “merely quarrels over

the    correctness     of   the   [agency’s]    factual    findings        or

justification for [its] discretionary choice[],” we lack

jurisdiction to review it.          Xiao Ji Chen v. U.S. Dep’t of

Justice, 471 F.3d 315, 329 (2d Cir. 2006).

     II. Past Persecution

       To establish eligibility for withholding of removal, an

applicant must show that it is more likely than not that her

“life or freedom would be threatened in that country because

of    [her]   race,    religion,    nationality,     membership       in   a

particular social group, or political opinion.”                 8 U.S.C.

§ 1231(b)(3)(A).       Past persecution can support such a finding

and can be based on harms other than those threatening life or

freedom, including “non-life-threatening violence and physical

abuse.”    Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.


                                     4
2006).    Such harm, however, must be sufficiently severe to rise

above “mere harassment.”       Ivanishvili v. U.S. Dep’t of Justice,

433 F.3d 332, 341 (2d Cir. 2006).               “[T]he difference between

harassment and persecution is necessarily one of degree that

must be decided on a case-by-case basis.”               Id.

       Lin’s claim of past persecution rests on a threat of

sterilization.         This   court       has   held   that   “threats   of

persecution” alone, “no matter how credible, do not demonstrate

past persecution.”      Huo Qiang Chen v. Holder, 773 F.3d 396, 406

(2d Cir. 2014) (collecting cases); see also Gui Ci Pan v. U.S.

Att’y Gen., 449 F.3d 408, 412–13 (2d Cir. 2006) (concluding that

flight to avoid threatened forced abortion did not establish

past persecution).      Zhen Hua Li v. Att’y Gen., 400 F.3d 157 (3d

Cir. 2005), cited by Lin, is not to the contrary.                The Third

Circuit there held that the threat of sterilization and physical

violence described by the petitioner did not “appear to have

been    sufficiently    imminent      or    concrete    for   the   threats

themselves to be considered past persecution,” because neither

he nor his family members “were actually imprisoned, beaten,

sterilized, or otherwise physically harmed.”              Id. at 165.    So

here, nothing in the record indicates that the threat directed

at Lin was accompanied by actual harm rising to the level of

persecution.     Lin also asserts that the BIA erred in failing

                                      5
to consider Matter of T-Z-, 24 I. & N. Dec. 163 (B.I.A. 2007).

Matter of T-Z- is inapposite, however, in that it discussed

whether an abortion is forced as required for asylum when

coerced by means other than “physical force or restraint, or

the threat of physical force or restraint.”         Id. at 169.   It

did not discuss, much less decide, whether a threat of an

abortion alone could be persecution.

    Accordingly, the agency reasonably determined that Lin did

not suffer past persecution.      See Mei Fun Wong v. Holder, 633

F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that persecution

is an extreme concept that does not include every sort of

treatment   our   society     regards   as   offensive.”   (internal

quotation marks omitted)).

    For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in remaining part.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk of Court




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