    15-750
    Lin v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 939 957

                        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
    27th day of June, two thousand sixteen.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    XIAN REN LIN,
             Petitioner,

                   v.                                                15-750
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Stuart Altman, New York, N.Y.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Terri J.
                                         Scadron, Assistant Director; Wendy
                                         Benner-León, 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

DENIED.

    Petitioner Xian Ren Lin, a native and citizen of the

People’s Republic of China, seeks review of a February 10, 2015,

decision of the BIA, affirming an April 30, 2013, decision of

an Immigration Judge (“IJ”) denying Lin’s application for

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”).       In re Xian Ren Lin, No. A200 939 957

(B.I.A. Feb. 10, 2015), aff’g No. A200 939 957 (Immig. Ct. N.Y.

City Apr. 30, 2013).       We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

    Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA.       See Xue Hong Yang v. U.S. Dep’t

of Justice, 426 F.3d 520, 522 (2d Cir. 2005).          The applicable

standards    of   review     are   well    established.      8 U.S.C.

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

(2d Cir. 2008).

    The petitioner testified that his girlfriend had two forced

abortions.   Wholly    apart    from   whether   his   testimony   was

                                   2
credible, his family planning claim cannot succeed because “an

individual does not automatically qualify for ‘refugee’ status

on account of a coercive procedure performed on someone else.”

Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d

Cir. 2007).     Only persecution because of opposition to the

family planning policy suffices. See id. at 308. The Petitioner

testified that when his girlfriend was taken away for the first

abortion, he intervened and grabbed hold of her. He makes no

claim that he suffered any persecution because of this action.

His claim that he was threatened with detention is insufficient.

See Huo Qiang Chen v. Holder, 773 F.3d 396, 406 (2d Cir. 2014);

Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006).

  I.     Religious Mailings Claim

       For applications like Lin’s, governed by the REAL ID Act,

“[t]he testimony of the applicant may be sufficient to sustain

the applicant’s burden without corroboration, but only if the

applicant satisfies the trier of fact that the applicant’s

testimony is credible, is persuasive, and refers to specific

facts sufficient to demonstrate that the applicant is a

refugee.”    8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added); Yan

Juan Chen v. Holder, 658 F.3d 246, 251-52 (2d Cir. 2011).

                                3
“Where the trier of fact determines that the applicant should

provide   evidence   that   corroborates   otherwise    credible

testimony, such evidence must be provided unless the applicant

does not have the evidence and cannot reasonably obtain the

evidence.”   8 U.S.C. § 1158(b)(1)(B)(ii); Yan Juan Chen, 658

F.3d at 252.

    Concerning Lin’s corroboration, the agency reasonably

observed that Lin had not submitted any evidence to corroborate

that he mailed flyers to his family in China despite his

testimony that he had copies of the flyers at home, as well as

receipts from the mail service used to send the package to China.

On appeal, Lin contends that this evidence was unavailable, but

that statement is contradicted by his record testimony.      The

agency reasonably rejected Lin’s explanations that he lost the

receipts and that he thought the flyers were “useless.”      See

8 U.S.C. § 1252(b)(4) (“No court shall reverse a determination

made by a trier of fact with respect to the availability of

corroborating evidence . . . [unless] a reasonable trier of

fact is compelled to conclude that such corroborating evidence

is unavailable.”).   Significantly, Lin does not contend that

his religious mailing testimony was sufficient to sustain his

                                4
burden in the absence of corroboration and he has therefore

waived review of that determination in this Court.

    The   denial   of   Lin’s   family   planning   claim   and   the

corroboration-based denial of his religious mailings claim are

dispositive of asylum, withholding of removal, and CAT relief

because they arose from the same factual predicate.               See

Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004).

    For the foregoing reasons, the petition for review is

DENIED.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




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