         11-3547
         Lin v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A079 419 194
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of March, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT A. KATZMANN,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _____________________________________
13
14       QING YUAN LIN,
15                Petitioner,
16                                                              11-3547
17                       v.                                     NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24
25
26       FOR PETITIONER:               Vlad Kuzmin, Kuzmin & Associates,
27                                     P.C., New York, New York.
28
29
 1   FOR RESPONDENT:        Stuart F. Delery, Acting Assistant
 2                          Attorney General; Leslie McKay,
 3                          Assistant Director; Christopher
 4                          Buchanan, Trial Attorney, Office of
 5                          Immigration Litigation, Civil
 6                          Division, United States Department
 7                          of Justice, Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner, Qing Yuan Lin, a native and citizen of

14   China, seeks review of a July 28, 2011, decision of the BIA

15   affirming the September 16, 2009, decision of Immigration

16   Judge (“IJ”) Alan A. Vomacka denying his application for

17   asylum, withholding of removal, and relief under the

18   Convention Against Torture (“CAT”).     In re Qing Yuan Lin,

19   No. A079 419 194 (B.I.A. July 28, 2011), aff’g     No. A079 419

20   194 (Immig. Ct. N.Y. City Sept. 16, 2009).    We assume the

21   parties’ familiarity with the underlying facts and

22   procedural history of the case.

23       Under the circumstances of this case, we review the

24   IJ’s decision as modified by the BIA.     See Xue Hong Yang v.

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

26   Accordingly, because the BIA explicitly declined to consider


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 1   the IJ’s adverse credibility determination, we assume,

 2   without deciding, that Lin was credible.    Yan Chen v.

 3   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

 4   standards of review are well-established.     See 8 U.S.C.

 5   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

 6   510, 513 (2d Cir. 2009); Mirzoyan v. Gonzales, 457 F.3d 217,

 7   221 (2d Cir. 2006).

 8   I.   Family Planning Claim

 9        As the agency concluded, Lin was not eligible for

10   asylum solely on the basis of his wife’s forced

11   sterilization.   See Shi Liang Lin v. U.S. Dep’t of Justice,

12   494 F.3d 296, 309-10 (2d Cir. 2007).   He could still qualify

13   for asylum or withholding of removal by demonstrating that:

14   (1) he engaged in “other resistance” to the family planning

15   policy; and (2) he suffered harm rising to the level of

16   persecution, or he had a well-founded fear or likelihood of

17   suffering such harm as a direct result of his resistance.

18   See id. at 313; see also 8 U.S.C. § 1101(a)(42); 8 C.F.R.

19   § 1208.16(b).

20        The BIA assumed that Lin had engaged in resistance to

21   China’s family planning policy, but reasonably determined

22   that he did not establish harm rising to the level of



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 1   persecution based on fines imposed.   An applicant alleging

 2   that he has suffered economic persecution must make at least

 3   a showing of a “deliberate imposition of a substantial

 4   economic disadvantage.”   Guan Shan Liao v. U.S. Dep’t of

 5   Justice, 293 F.3d 61, 67 (2d Cir. 2002).   Economic

 6   persecution includes “the deliberate imposition of a severe

 7   economic disadvantage or the deprivation of liberty, food,

 8   housing, employment or other essentials of life,” Matter of

 9   T-Z-, 24 I. & N. Dec. 163, 171 (BIA 2007) (quotation marks

10   and citation omitted), though an applicant “need not

11   demonstrate a total deprivation of livelihood or a total

12   withdrawal of all economic opportunity in order to

13   demonstrate harm amounting to persecution,” id. at 173.      As

14   the agency concluded, Lin presented no evidence regarding

15   his net worth in China or in the United States, or that the

16   fines had a negative impact on his life.   He therefore

17   failed to show that the fines were a severe burden.    See

18   Guan Shan Liao, 293 F.3d at 70.

19       Nor did the agency err in finding no objectively

20   reasonable fear of future persecution because Lin admitted

21   that, after he refused to pay the fine, he remained unharmed

22   in China for more than six years and that his family remains

23   there unharmed more than fourteen years later.   See Melgar

                                   4
 1   de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).     Since

 2   Lin failed to demonstrate either past persecution or a well-

 3   founded fear of persecution, the agency reasonably denied

 4   him asylum, withholding of removal, and CAT relief insofar

 5   as those claims were based on the same factual predicate.

 6   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

 7   II.   Illegal Departure Claim

 8         Lin did not establish his eligibility for CAT relief

 9   based on his illegal departure from China.    An alien is not

10   “entitled to CAT protection based solely on the fact that

11   []he is part of the large class of persons who have

12   illegally departed China,” and Lin failed to submit

13   particularized evidence suggesting that he is likely to be

14   imprisoned and subject to torture in China.    Mu Xiang Lin v.

15   U.S. Dep’t of Justice, 432 F.3d 156, 157-60 (2d Cir. 2005).

16   (emphasis in original)

17         For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with



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

2   Circuit Local Rule 34.1(b).

3                          FOR THE COURT:
4                          Catherine O’Hagan Wolfe, Clerk




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