         09-2028-ag
         Lin v. Holder
                                                                                       BIA
                                                                                    Bain, IJ
                                                                               A099 526 368
                          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 2 nd day of March, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _____________________________________
12
13       WEI QUAN LIN,
14                Petitioner,
15
16                       v.                                     09-2028-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22       FOR PETITIONER:        G. Victoria Calle,
23                              New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Ernesto H. Molina, Jr.,
27                                     Assistant Director; Dana M.
28                                     Camilleri, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
32
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Wei Quan Lin, a native and citizen of the People’s

6    Republic of China, seeks review of an April 14, 2009 order

7    of the BIA, affirming the October 10, 2007 decision of

8    Immigration Judge (“IJ”) Terry Bain, which denied his

9    application for asylum, withholding of removal, and relief

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

11   Quan Lin, No. A099 526 368 (B.I.A. Apr. 14, 2009), aff’g No.

12   A099 526 368 (Immig. Ct. N.Y. City Oct. 10, 2007).      We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review the

16   decision of the IJ as supplemented by the BIA.    See Yan Chen

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

18   applicable standards of review are well-established.         See

19   Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Manzur v.

20   U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.

21   2007).

22       The agency reasonably determined that Lin did not

23   establish eligibility for asylum based on his wife’s alleged

                                  2
1    forced sterilization.     This Court has squarely rejected the

2    notion that aliens are per se eligible for relief based on

3    the forced sterilization of their spouse.      See Shi Liang Lin

4    v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en

5    banc).     Rather, applicants must base their claims on

6    “persecution that they themselves have suffered or must

7    suffer.”     See id. at 308.   In order to establish eligibility

8    for relief, an applicant claiming persecution for “other

9    resistance” must demonstrate both: (1) “resistance” to a

10   coercive family planning policy, which can “cover[ ] a wide

11   range of circumstances, including expressions of general

12   opposition, attempts to interfere with enforcement of

13   government policy in particular cases, and other overt forms

14   of resistance to the requirements of the family planning

15   law”; and (2) that the applicant has suffered or reasonably

16   fears suffering “harm amounting to persecution on account of

17   that resistance.”     Id. at 313 (quoting In re S-L-L-, 24 I. &

18   N. Dec. 1, 10 (BIA 2006)).      Lin failed on both scores.

19       Contrary to Lin’s argument that the IJ failed to

20   consider his claim of emotional persecution, the IJ

21   expressly found that during the 15 years Lin remained in

22   China following his wife’s alleged sterilization, he


                                      3
1    encountered no further problems with the government.

2    Indeed, Lin did not claim before the IJ that his emotional

3    distress constituted persecution.   Even if he had, and even

4    assuming that such distress rose to the level of

5    persecution, Lin failed to show that his distress occurred

6    on account of his own resistance.   See id. at 309-10.

7    Indeed, in Shi Liang Lin, we explicitly rejected the

8    argument Lin proposes here, that intentionally having a

9    third child constitutes “resistance” to a family planning

10   policy under 8 U.S.C. § 1101(a)(42).    Id. at 313.   Thus, the

11   BIA reasonably found that Lin had not established his

12   eligibility for asylum.   See id.

13       Lin does not challenge the agency’s denial of his

14   withholding of removal or CAT claims.    Regardless, because

15   the agency reasonably determined that he was not eligible

16   for asylum, he necessarily did not meet the higher threshold

17   for those forms of relief.   See Paul v. Gonzales, 444 F.3d

18   148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

19   Justice, 426 F.3d 520, 523 (2d Cir. 2005).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition


                                   4
1    is VACATED, and any pending motion for a stay of removal in

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

3    oral argument in this petition is DENIED in accordance with

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

5    Circuit Local Rule 34(b).

 6                               FOR THE COURT:
 7                               Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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