         09-3160-ag
         Lin v. Holder
                                                                                       BIA
                                                                                  Morace, IJ
                                                                               A078 712 485


                          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 19 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                    Circuit Judges.
11       _______________________________________
12
13       SHUN GUAN LIN,
14                Petitioner,
15
16                       v.                                     09-3160-ag
17                                                              NAC
18       UNITED STATES DEPARTMENT OF JUSTICE,
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondents.
22       _______________________________________
23
24       FOR PETITIONER:               Yee Ling Poon, New York, New York.
25
26       FOR RESPONDENTS:              Tony West, Assistant Attorney
27                                     General; Jennifer Paisner Williams,
28                                     Senior Litigation Counsel; Liza S.
29                                     Murcia, Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
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         Shun Guan Lin, a native and citizen of the People’s

6    Republic of China, seek review of a June 26, 2009, order of

7    the BIA affirming the June 20, 2008, decision of Immigration

8    Judge (“IJ”) Philip L. Morace, which denied his application

9    for asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Shun Guan Lin,

11   No. A078 712 485 (B.I.A. June 26, 2009), aff’g No. A078 712

12   485 (Immig. Ct. N.Y. City June 20, 2008). We assume the

13   parties’ familiarity with the underlying facts and

14   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. 8

19   U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of

20   Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

21   I.   Family Planning Claim

22        As a preliminary matter, the IJ properly applied our

23   decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d

                                  2
1    296, 309-12 (2d Cir. 2007) (en banc), in denying Lin’s

2    application for relief.     Contrary to Lin’s argument, to the

3    extent that decision was the controlling authority at the

4    time the IJ rendered his oral decision, he was bound to

5    apply it.   See Harper v. Virginia Dep’t of Taxation, 509

6    U.S. 86, 97-98 (1993) (holding that courts are bound “to

7    apply a rule of federal law retroactively after the case

8    announcing the rule has already done so” in all cases still

9    open on direct review); Accord Hawknet, Ltd. v. Overseas

10   Shipping Agencies, 590 F.3d 87, 91 (2d Cir. 2009).

11       Furthermore, we find no merit in Lin’s argument that he

12   is eligible for relief under “traditional principles of

13   refugee law.”     Our holding Shi Liang Lin is entirely

14   dispositive of his claim that he was persecuted by virtue of

15   his wife’s forced sterilization.     See Shi Liang Lin, 494

16   F.3d at 309-12.     For the spouse of someone who was forcibly

17   sterilized to establish eligibility for relief, he must

18   demonstrate: (1) “resistance” to a coercive family planning

19   policy; and (2) that he “suffered harm amounting to

20   persecution on account of that resistance” or has a well-

21   founded fear of such persecution. Id. at 313 (citing Matter

22   of S-L-L, 24 I. & N. Dec. at 10) (BIA 2006).     The IJ and BIA


                                     3
1    properly found that, even if Lin demonstrated that helping

2    his wife hide from authorities constituted “other

3    resistance” to China’s population control policy, the fine

4    imposed on him did not amount to persecution.       As the IJ

5    found, despite the fine, Lin was able to continue working

6    for the four years he remained in China, he ultimately paid

7    off the fine, and was still able to borrow $54,000 to

8    finance his trip to the United States .      See Matter of T-Z-,

9    24 I. & N. Dec. 163, 170-72 (BIA 2007) (defining persecution

10   as including “the deliberate imposition of a severe economic

11   disadvantage or the deprivation of liberty, food, housing,

12   employment or other essentials of life” ).

13         Ultimately, because Lin was unable to meet his burden

14   of proof for asylum, he was unable to meet the higher

15   standard required to succeed on a claim for withholding of

16   removal and CAT relief to the extent his application rested

17   on his family planning claim.       See Paul v. Gonzales, 444

18   F.3d 148, 156 (2d Cir. 2006); Gomez v. INS, 947 F.2d 660,

19   665 (2d Cir. 1991).

20   II.   Illegal Departure

21         As to Lin’s claim that he fears persecution and torture

22   for having illegally departed China, the agency reasonably


                                     4
1    found that “[p]unishment for violation of a generally

2    applicable criminal law is not persecution.”     Saleh v. U.S.

3    Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992); see also

4    Matter of Sibrun, 18 I. & N. Dec. 354, 359 (BIA 1983)

5    (holding that “the possibility that the applicant may be

6    subjected to criminal prosecution and perhaps severe

7    punishment as a result of his illegal departure from [his

8    home country] does not demonstrate a likelihood of

9    persecution under the Act”).    Moreover, the country

10   conditions evidence in the record indicates that, at most,

11   Lin would be issued a small fine and that he would be

12   detained for a short period of time for health and identity

13   checks.    Accordingly, the record does not compel the

14   conclusion that Lin was eligible for asylum or withholding

15   of removal based on his illegal departure.     See Saleh, 962

16   F.2d at 239; see also Matter of Sibrun, 18 I. & N. Dec. at

17   359.

18          Finally, the agency reasonably denied Lin’s application

19   for CAT relief insofar as it was based on his illegal

20   departure from China.    As we have held, absent any

21   particularized evidence, an applicant cannot demonstrate

22   that he will more likely than not be tortured “based solely

23   on the fact that [he] is part of the large class of persons
                                   5
1    who have illegally departed China” and on generalized

2    evidence indicating that torture occurs in Chinese prisons.

3    Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60

4    (2d Cir. 2005) (emphasis in original).

5        For the foregoing reasons, the petition for review is

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

7    removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




                                    6
