Dongjian Lin v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2023
• Docket: 20-73589
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DONGJIAN LIN No. 20-73589

Petitioner, Agency No. A216-181-097

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 5, 2023** San Francisco, California

Before: McKEOWN, TALLMAN, and LEE, Circuit Judges.

Dongjian Lin, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA” or “Board”) dismissal of his appeal.

The Board adopted and affirmed the immigration judge’s denial of Lin’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

1 20-73589 application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). Matter of Burbano, 20 I. & N. Dec. 872,

874 (BIA 1994). As the parties are familiar with the facts, we do not recount

them here. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the

petition.

Substantial evidence supports the Board’s determination that Lin failed to

meet his burden to establish past harm rising to the level of persecution under

the Immigration and Nationality Act. See Flores Molina v. Garland, 37 F.4th

626, 632 (9th Cir. 2022). Lin argues that his credibility and his testimony are

sufficient to establish past persecution based on the harm he suffered. While

Lin offered testimony of his past imprisonment by Chinese police, including a

ten-minute period where he was slapped, kicked, and beaten with a baton, this

incident was limited in that no other violence occurred during his confinement

and he did not require medical attention. Lin also testified that he retained his

employment and faced no other instances of violence while in China.

Moreover, Lin was able to leave the country unhindered. His mother remains in

China without issue. While the harm Lin suffered is unfortunate, a reasonable

adjudicator, considering the evidence presented, is not compelled to find that

Lin’s past experience rises to the level of persecution. We are not permitted to

substitute our view of the matter for that of the Board. Antonio v. Garland, 58

F.4th 1067, 1072–73 (9th Cir. 2023); Sharma v. Garland, 9 F.4th 1052, 1060

(9th Cir. 2021); Prasad v. I.N.S., 47 F.3d 336, 338–40 (9th Cir. 1995). 2 20-73589 Moreover, substantial evidence supports the Board’s determination that

Lin’s fear of future persecution was not well-founded. A well-founded fear

must be both subjectively and objectively reasonable. DeValle v. I.N.S., 901

F.2d 787, 790 (9th Cir. 1990). “The subjective component requires a showing

that the alien’s fear is genuine. The objective component requires a showing,

by credible, direct, and specific evidence in the record, of facts that would

support a reasonable fear that the petitioner faces persecution.” Id. (quoting

Diaz-Escobar v. I.N.S., 782 F.2d 1488, 1492 (9th Cir. 1986)). Lin testified that

he remained in China for approximately a year following this incident. He also

testified that after he left the country the police did not search for him, and his

mother safely remained behind without retaliation. The record does not compel

a conclusion that Lin has a well-founded fear of future persecution as is

necessary to establish an asylum claim. Therefore, we hold that substantial

evidence supports the Board’s determination denying Petitioner’s asylum claim.

Lin’s CAT claim fares no better. To qualify for protection under the

CAT, a petitioner “must demonstrate that it is more likely than not that he

would be tortured if removed” and that the torture would occur “by or at the

instigation of or with the consent or acquiescence of a public official.” Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019) (citing 8 C.F.R.

§ 1208.18(a)(1)). Lin carries the burden of establishing a particularized risk of

torture if he returns to China. See Dhital v. Mukasey, 532 F.3d 1044, 1051–52

(9th Cir. 2008) (per curiam). The evidence Lin submitted regarding his time 3 20-73589 after detention fails to substantially prove a particularized risk.

Finally, having failed to establish an asylum claim, it follows that Lin

also failed to meet the more stringent standard for withholding of removal. See

Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (noting that the “clear

probability” standard for withholding of removal is more stringent than that for

asylum). The Board did not err in denying Lin’s petition.

PETITION DENIED.

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