08-5733-ag
Lin v. Holder
                                                                                BIA
                                                                             Burr, IJ
                                                                        A099 666 389
                      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.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 27 th day of January, two thousand ten.

PRESENT:
         ROBERT D. SACK,
         REENA RAGGI,
         GERARD E. LYNCH,
             Circuit Judges.
_______________________________________

HUI LIN,
                    Petitioner,

                     v.                                 08-5733-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, 1
         Respondent.
______________________________________
FOR PETITIONER:                    Vlad Kuzmin, Kuzmin & Associates,
                                   P.C., New York, New York.



                1
          Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr., is
    automatically substituted for former Attorney General
    Michael B. Mukasey as respondent in this case.
FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Ernesto H. Molina, Jr., Assistant
                               Director;    M.   Lee    Quinn,   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 Hui Lin, a native and citizen of the People’s

Republic of China, seeks review of an October 28, 2008 order

of    the   BIA    affirming      the   October     4,    2007    decision    of

Immigration Judge (“IJ”) Sarah M. Burr denying his application

for   asylum,      withholding     of   removal,    and   relief    under    the

Convention Against Torture (“CAT”).                In re Hui Lin, No. A099

666 389 (B.I.A. Oct. 28, 2008), aff’g No. A099 666 389 (Immig.

Ct. N.Y. City Oct. 4, 2007).                 Because the BIA’s decision

essentially        adopts   the    IJ’s     conclusions,     we    review    the

decision of the IJ.         See Secaida-Rosales v. INS, 331 F.3d 297,

305 (2d     Cir.    2003), abrogated in part by Xiu Xia Lin v.

Mukasey, 534 F.3d 162 (2d Cir. 2008).                    We will uphold the

factual findings of the IJ so long as they are supported by

substantial evidence.          See 8 U.S.C. § 1252(b)(4)(B); Yanqin

                                        2
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).                     However,

“[w]e    review   de    novo    questions       of    law   and    the   [IJ’s]

application of law to undisputed fact.”                Bah v. Mukasey, 529

F.3d 99, 110 (2d Cir. 2008). In applying these standards, we

assume the parties’ familiarity with the underlying facts and

the record of prior proceedings.

    1.     Asylum and Withholding of Removal

    Under 8 U.S.C. § 1101(a)(42), an individual is not per se

eligible    for   asylum       based       on   the   forced      abortion    or

sterilization of a spouse or partner.                 See Shi Liang Lin v.

U.S. Dep’t of Justice, 494 F.3d 296, 307-08 (2d Cir. 2007).

Rather, “applicants can become candidates for asylum relief

only based on persecution that they themselves have suffered

or must suffer.”       Id. at 308.     Because Lin is not eligible for

relief based solely on his girlfriend’s forced abortion, he

was required to show: “(1) resistance to a coercive family

planning policy[;] . . . and (2) that [he] has suffered harm

amounting to persecution on account of that resistance.”                     Id.

at 313 (internal quotation marks omitted); see also Matter of

M-F-W- & L-G-, 24 I. & N. Dec. 633, 641-42 (BIA 2008).

    Even assuming that Lin’s pushing a family planning cadre

constituted “resistance” to a family planning policy, the IJ


                                       3
properly concluded that Lin was not persecuted on account of

those actions.        Lin testified that the only harm he suffered

as a result of the pushing was that he was arrested                        and

detained for five or six hours.               We have held that a brief

detention      and   release,    without   more,     does   not   constitute

persecution.         See Joaquin-Porras v. Gonzales, 435 F.3d 172,

182 (2d Cir. 2006) (upholding the agency’s determination that

applicant was not eligible for withholding of removal based on

a “brief” detention, after which he was released “without

harm”).     As Lin does not argue that he has a well-founded fear

of future persecution on account of his resistance, we discern

no error in the IJ’s denial of asylum.                 Moreover, because

Lin’s claim for withholding of removal is based on the same

factual predicate as his asylum claim, his failure to meet his

burden for asylum necessarily precludes him from meeting the

higher burden required for withholding of removal.                  See Paul

v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).

       2.   CAT Relief

       A petitioner is not “entitled to CAT protection based

solely on the fact that []he is part of the large class of

persons who have illegally departed China.”                 Mu Xiang Lin v.

U.S.   Dep’t    of    Justice,   432   F.3d   156,   160    (2d   Cir.   2005)


                                       4
(emphasis in original); see also Mu-Xing Wang v. Ashcroft, 320

F.3d 130, 143-44 (2d Cir. 2003).   Because Lin failed to submit

particularized evidence indicating that he is likely to be

tortured upon his return to China and instead produced only

generalized evidence concerning the treatment of prisoners in

that country, the BIA did not err in concluding that Lin

demonstrated no entitlement to CAT relief.   See Mu Xiang Lin,

432 F.3d at 160.

    3.    Conclusion

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.   Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34(b).

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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