         10-2386-ag
         Lin v. Holder
                                                                                           BIA
                                                                                    Vomacka, IJ
                                                                                   A098 997 995
                              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 8th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _______________________________________
12
13       YONG LIN,
14                       Petitioner,
15
16                       v.                                       10-2386-ag
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL; UNITED STATES
20       DEPARTMENT OF JUSTICE,
21                Respondents.
22       _______________________________________
23
24       FOR PETITIONER:                 WaiSim M. Cheung, New York, New
25                                       York.
26
27       FOR RESPONDENTS:                Tony West, Assistant Attorney
28                                       General; Terri J. Scadron, Assistant
29                                       Director; Shahrzad Baghai, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, Civil Division, United
32                                       States Department of Justice,
33                                       Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED.

 5       Petitioner Yong Lin, a native and citizen of the

 6   People’s Republic of China, seeks review of a May 21, 2010,

 7   order of the BIA affirming the July 22, 2008, decision of

 8   Immigration Judge (“IJ”) Alan A. Vomacka, denying his

 9   applications for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Yong

11   Lin No. A098 997 995 (B.I.A. May 21, 2010), aff’g No. A098

12   997 995 (Immig. Ct. N.Y. City July 22, 2008).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA decision.     See Xue

17   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

18   Cir. 2005).    The applicable standards of review are well-

19   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       The agency reasonably concluded that Lin failed to meet

22   his burden of demonstrating a well-founded fear of future

23   persecution based on his violation of China’s family

24   planning policy.    The BIA reasonably found that Lin’s

                                    2
 1   testimony alone, even if credible, was insufficient to

 2   support his claim because he omitted from his asylum

 3   application his assertion that officials in China were

 4   searching for him and had questioned his wife about his

 5   whereabouts.    See 8 U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v.

 6   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“[t]he absence

 7   of corroboration in general makes an applicant unable to

 8   rehabilitate testimony that has already been called into

 9   question.”); Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d

10   Cir. 2009).    Moreover, as the BIA found, none of Lin’s

11   evidence, including letters from his ex-wife and his

12   parents, mentioned that government officials had learned

13   that he had divorced for the purpose of avoiding the family

14   planning rules or that the officials were looking for him.

15   See Chuilu, 575 F.3d at 196-97 (providing that corroboration

16   should be provided where “it would reasonably be expected”

17   even where testimony is credible).

18       To the extent Lin argues that the BIA erred by failing

19   to specify additional evidence he should have provided, the

20   burden rested with him to provide all available

21   corroborating evidence, and he provided no explanation as to

22   why the letters from his wife and parents did not show that


                                    3
 1   officials were aware of the divorce.     See Chuilu Liu, 575

 2   F.3d at 198 n.6 (stating that the alien bears the ultimate

 3   burden of introducing such evidence without prompting from

 4   the IJ).   We have held that the agency’s designation of

 5   missing corroboration need not be done prior to the

 6   disposition of an alien’s claim.     See Chuilu, 575 F.3d at

 7   198-99; see also     8 U.S.C. § 1158(b)(1)(B)(ii)(REAL ID Act

 8   provision codifying the rule that an IJ, weighing the

 9   evidence to determine if the alien has met his burden, may

10   rely on the absence of corroborating evidence adduced by an

11   otherwise credible applicant unless such evidence cannot be

12   reasonably obtained).     Accordingly, as the BIA concluded,

13   Lin failed to establish a well-founded fear of persecution

14   because he did not sufficiently corroborate his claim that

15   Chinese officials were aware of his “sham” divorce or were

16   searching for him.     See Chuilu, 575 F.3d at 196-97; Jian

17   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

18   (providing that a fear is not objectively reasonable if it

19   lacks “solid support” in the record and is merely

20   “speculative at best”).

21       The agency also reasonably determined that Lin did not

22   establish a well-founded fear of persecution based on his


                                     4
 1   baptism and practice of Christianity in the United States

 2   because Lin testified that he was a relatively new

 3   practitioner and evidence in the record indicated that

 4   officials primarily targeted spiritual leaders.     See

 5   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)

 6   (“Put simply, to establish a well-founded fear of

 7   persecution in the absence of any evidence of past

 8   persecution, an alien must make some showing that

 9   authorities in his country of nationality are either aware

10   of his activities or likely to become aware of his

11   activities.); see also Jian Xing Huang, 421 F.3d 125 at 128-

12   29.   The agency also reasonably determined that Lin had not

13   established a pattern or practice of persecution against

14   Christians in China because the country conditions evidence

15   in the record indicated that enforcement against underground

16   churches varied throughout China and the Chinese

17   government’s treatment of members of underground churches

18   constituted harassment rather than persecution.     See Siewe

19   v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“[w]here

20   there are two permissible views of the evidence, the fact

21   finder’s choice between them cannot be clearly erroneous.”);

22   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

23   Cir. 2006) (holding that harm must be sufficiently severe

                                   5
 1   and rise above “mere harassment”); see also Fatin v. INS, 12

 2   F.3d 1233, 1240 (3d Cir. 1993) (“[P]ersecution does not

 3   encompass all treatment that our society regards as unfair,

 4   unjust, or even unlawful or unconstitutional.”).

 5              Because Lin failed to establish his eligibility

 6   for asylum, he necessarily was unable to meet the higher

 7   standard to establish his eligibility for withholding of

 8   removal.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 9   2006). Lin has not challenged the agency’s denial of CAT

10   relief.    See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

11   n.1, 545 n.7 (2d Cir. 2005) (providing that issues not

12   sufficiently argued in the briefs are considered waived and

13   normally will not be addressed on appeal).

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

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

19   oral argument in this petition is DENIED in accordance with

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

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
25
26




                                    6
