         10-2011-ag
         Lin v. Holder
                                                                                        BIA
                                                                                  Elstein, IJ
                                                                               A093 396 998
                          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 21st day of March, two thousand twelve.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                    Circuit Judges.
11       ______________________________________
12
13       CHANG LE LIN,
14                Petitioner,
15
16                                                              10-2011-ag
17                       v.                                     NAC
18
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:               Thomas V. Massucci, New York, New
26                                     York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Lyle D. Jentzer, Senior
30                                     Litigation Counsel; Edward J. Duffy,
31                                     Trial Attorney, Office of
 1                             Immigration Litigation, Civil
 2                             Division, United States Department
 3                             of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DISMISSED in part and DENIED in part.

 9       Petitioner, Chang Le Lin, a native and citizen of

10   China, seeks review of an April 23, 2010, decision of the

11   BIA affirming the May 5, 2008, decision of Immigration Judge

12   (“IJ”) Annette S. Elstein denying his application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”). In re Chang Le Lin, No.

15   A093 396 998 (B.I.A. April 23, 2010), aff’g     No. A093 396

16   998 (Immig. Ct. N.Y. City May 5, 2008).     We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history of the case.

19       Under the circumstances of this case, we have reviewed

20   both the IJ’s and the BIA’s opinions “for the sake of

21   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

22   2008).   The applicable standards of review are well-

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

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



                                     2
 1       As an initial matter, we lack jurisdiction to review

 2   the agency’s pretermission of Lin’s asylum application as

 3   untimely because Lin challenges only the IJ’s factual

 4   findings regarding when and where he arrived in the United

 5   States.   See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji

 6   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326-29 (2d Cir.

 7   2006) (holding that a question of law is not implicated

 8   “when the petition for review essentially disputes the

 9   correctness of the IJ’s fact-finding”).   Thus, we dismiss

10   Lin’s petition for review with respect to his asylum claim.

11   Because Lin does not challenge the denial of CAT relief, we

12   address only the agency’s denial of withholding of removal.

13       The agency did not err in concluding that Lin failed to

14   meet his burden of proof in demonstrating that he suffered

15   persecution or faced a likelihood of persecution on account

16   of his “other resistance” to China’s family planning policy.

17   Lin was not per se eligible for asylum solely on the basis

18   of his wife’s forced sterilization, but he could have

19   qualified for relief by demonstrating that: (1) he engaged

20   in “other resistance” to the family planning policy; and

21   (2) he suffered harm rising to the level of persecution or

22   has a well-founded fear of suffering such harm as a direct

23   result of his resistance.   See Shi Liang Lin v. U.S. Dep’t


                                   3
 1   of Justice, 494 F.3d 296, 309-310, 313 (2d Cir. 2007).       The

 2   agency reasonably found, however, that the harms Lin

 3   allegedly suffered did not constitute persecution.     The

 4   agency reasonably determined that Lin’s physical

 5   mistreatment did not constitute past persecution, as Lin was

 6   not detained at the time, and acknowledged that he did not

 7   need to seek any medical treatment.   Ivanishvili v. U.S.

 8   Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (holding

 9   that “the difference between harassment and persecution is

10   necessarily one of degree that must be decided on a case-by-

11   case basis”); Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d

12   Cir. 2011) (holding that a minor beating by family planning

13   officials prior to arrest and detention by police, and

14   carried out without any intention to arrest or detain, need

15   not constitute persecution).

16       In addition, the agency reasonably determined that the

17   fine imposed on Lin and his wife for their violation of the

18   family planning policy did not constitute persecution, as

19   Lin did not argue or present evidence of any economic

20   disadvantage or deprivation suffered as a result of the

21   fine.   See Matter of T-Z-, 24 I. & N. Dec. 163, 170-71 (BIA

22   2007) (defining persecution as including “the deliberate

23   imposition of a severe economic disadvantage or the


                                    4
 1   deprivation of liberty, food, housing, employment or other

 2   essentials of life.”); see also Guan Shan Liao v. U.S. Dep’t

 3   of Justice, 293 F.3d 61, 67 (2d Cir. 2002) (requiring at

 4   least a showing of a “deliberate imposition of a substantial

 5   economic disadvantage”).

 6       Thus, because Lin does not present any argument, apart

 7   from past harm, as to why he would face persecution upon

 8   return to China, the agency reasonably determined that he

 9   did not establish his eligibility for withholding of

10   removal.   See Ramsameachire v. Ashcroft, 357 F.3d 169, 178,

11   183-86 (2d Cir. 2004).

12       For the foregoing reasons, the petition for review is

13   DISMISSED in part and DENIED in part.   As we have completed

14   our review, any stay of removal that the Court previously

15   granted in this petition is VACATED, and any pending motion

16   for a stay of removal in this petition is DISMISSED as moot.

17

18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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