     14-4302
     Lin v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A201 137 109
                         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.

 1         At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   4th day of May,two thousand sixteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            ROBERT D. SACK,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   JIAN LIANG LIN,
14            Petitioner,
15
16                  v.                                               14-4302
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Richard Tarzia, Belle Mead, New
24                                       Jersey.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Douglas
28                                       E. Ginsburg, Assistant Director;
29                                       Andrew B. Insenga, Trial Attorney,
1                                Office of Immigration Litigation,
2                                United States Department of Justice,
3                                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 is

8    DENIED.

9        Petitioner Jian Liang Lin, a native and citizen of People’s

10   Republic of China, seeks review of an October 21, 2014, decision

11   of the BIA affirming the June 11, 2013, decision of an

12   Immigration Judge (“IJ”) denying Lin’s application for asylum,

13   withholding of removal, and relief under the Convention Against

14   Torture (“CAT”).   In re Jian Liang Lin, No. A201 137 109 (B.I.A.

15   Oct. 21, 2014), aff’g No. A201 137 109 (Immig. Ct. N.Y. City

16   June 11, 2013).    Lin claims that he was detained by Chinese

17   police and beaten once while in custody because of his

18   affiliation with an unregistered church, and he seeks asylum

19   (as well as withholding and CAT relief) on the ground that this

20   treatment constitutes past persecution or gives rise to a

21   well-founded fear of persecution.      We assume the parties’

22   familiarity with the underlying facts and procedural history

23   in this case.




                                    2
1          We have reviewed the IJ’s decision as modified by the BIA,

2    i.e., minus the ground for relief that the BIA declined to reach

3    (the IJ’s adverse credibility determination).       See Xue Hong

4    Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

5    The applicable standards of review are well established.

6    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

7    513-14 (2d Cir. 2009).

8          This Circuit has not held whether a mild beating, which does

9    not require hospitalization or medical attention, inflicted on

10   a person while detained suffices to constitute persecution per

11   se.   We have held that detention without physical mistreatment

12   does not constitute persecution per se, though it may constitute

13   persecution under the circumstances, see Ali Feng Yuan v. U.S.

14   Dep’t of Justice, 416 F.3d 192, 198 (2d Cir. 2005), overruled

15   in part on other grounds by Shi Liang Lin v. U.S. Dep’t of

16   Justice, 494 F.3d 296 (2d Cir. 2007), and we have likewise held

17   that a mild beating later followed by arrest and detention may

18   be persecution but is not per se persecution, see Jian Qui Liu

19   v. Holder, 632 F.3d 820, 822 (2d Cir. 2011).    At the same time,

20   we have instructed “the BIA and individual IJs . . . to be

21   sensitive to the fact that even mistreatment that, in other

22   contexts, could be fairly characterized as ‘the mere annoyance


                                     3
1    and distress’ of harassment can take on an entirely different

2    character when officially inflicted on an individual while

3    detained on account of protected grounds.”          Beskovic v.

4    Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (quoting Ivanishvili

5    v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006)).

6    “In other words, . . . [we have counseled the BIA and IJs to

7    be] keenly sensitive to the fact that a ‘minor beating’ or, for

8    that matter, any physical degradation designed to cause pain,

9    humiliation, or other suffering, may rise to the level of

10   persecution if it occurred in the context of an arrest or

11   detention on the basis of a protected ground.”      Id.

12        But whether a “minor beating” while in detention a) is

13   persecution per se, or b) at least gives rise to a presumption

14   of persecution, such that a holding by the BIA that the

15   petitioner has not suffered persecution will not be upheld

16   without a meaningful explanation, as implied by Beskovic, or

17   whether c) it is simply up to the BIA to decide if the particular

18   facts of the beating and detention amount to persecution, as

19   suggested by dicta in Liu, 632 F.3d at 822, is an open question

20   in our Circuit.    That being the case, if we were, as Lin

21   requests, to consider Lin’s application for asylum, we could

22   not decide this case by summary order and would instead send


                                    4
1    it to the Regular Argument Calendar for full argument and

2    disposition.

3           Despite Lin’s protestations, however, this is not an asylum

4    case before us.     The IJ found that Lin had failed to establish

5    his date of entry and had therefore failed to demonstrate that

6    he had applied for asylum within one year of entering the United

7    States.    As a result, the IJ found Lin statutorily ineligible

8    for asylum, and the BIA upheld that determination.                      That

9    holding is not reviewable by us where, as here, Lin has raised

10   no constitutional claim or question of law, but merely disputes

11   “the correctness of [the] IJ’s fact-finding or the wisdom of

12   his exercise of discretion.”          Xiao Ji Chen v. U.S. Dep’t of

13   Justice, 471 F.3d 315, 329 (2d Cir. 2006).

14          Accordingly, we turn to Lin’s claims for withholding of

15   removal and CAT relief.      Both claims require a higher showing

16   of harm to permit relief than asylum’s required showing of

17   “persecution.”      Withholding prevents removal only “where the

18   alien’s life or freedom would be threatened,” “a narrower

19   category than persecution.”       Huo Quang Chen v. Holder, 773 F.3d

20   396, 404 (2d Cir. 2014)(internal quotation mark omitted); see

21   also    Beskovic,   467   F.3d   at       225   (noting   that   “the   term

22   [persecution] includes ‘more than threats to life or freedom’


                                           5
1    because ‘non-life[-]threatening violence and physical abuse

2    also fall within this category’”) (quoting Tian-Yong Chen v.

3    INS, 359 F.3d 121 (2d Cir. 2004)).1   And the CAT prevents removal

4    only where “it is more likely than not that [the alien] would

5    be in danger of being subjected to torture.”          Khouzam v.

6    Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004)(internal quotation

7    marks omitted).   It is clear that what Lin avers happened to

8    him does not meet either of these higher standards.        The IJ

9    therefore did not err in denying Lin withholding of removal or

10   CAT relief.

11        For the foregoing reasons, the petition for review is

12   DENIED.

13                                 FOR THE COURT:
14                                 Catherine O=Hagan Wolfe, Clerk




     1“Moreover, showing that life or freedom would be threatened
     is a higher burden than establishing a well founded fear of such
     harm; specifically it requires evidence that life or freedom
     threatening harm ‘is more likely than not.’” Huo Quang Chen,
     773 F.3d at 404, quoting Vanegas–Ramirez v. Holder, 768 F.3d
     226, 237 (2d Cir.2014).

                                     6
