Cheng Zhi Lin v. Holder

366 F. App'x 271

• Court: Court of Appeals for the Second Circuit
• Decided: February 18, 2010
• Docket: 09-1332-ag
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Cheng Zhi Lin, a native and citizen of the People’s Republic of China, seeks review of a March 4, 2009 order of the BIA affirming the December 11, 2006 decision of Immigration Judge (“IJ”) Robert D. Weisel denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Cheng Zhi Lin, No. A099 538 290 (B.I.A. Mar. 4, 2009), affg No. A099 538 290 (Immig. Ct. N.Y. City Dec. 11, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, this Court reviews only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).

I. Asylum and Withholding of Removal

In this case, the BIA assumed Lin’s credibility, but nonetheless found that the physical harm Lin endured at the hands of Chinese authorities during his detention “does not rise to the level of persecution.” In light of our ruling in Beskovic v. Gonzales that the agency must be “keenly sensitive to the fact that a ‘minor beating’ or, for that matter, any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground,” the BIA’s conclusory statement is insufficient to permit meaningful review. 467 F.3d 223, 227 (2d Cir.2006).

Because a petitioner who has demonstrated past persecution is presumed to have a well-founded fear of persecution, 8 C.F.R. § 1208.13(b)(1), we cannot predict with confidence that the agency would reach the same conclusion on remand. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006).

II. CAT Relief

Although Lin sets forth the standard for CAT relief in his brief before this Court, he does not challenge the basis of the agency’s denial of that relief. Accordingly, we deem any such challenge waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).

For the foregoing reasons, the petition for review is GRANTED, and the case REMANDED for further proceedings consistent with this order. As we have completed our review, 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 34.1(b).