Lin v. Garland

Opinion

19-2840 Lin v. Garland BIA Christensen, IJ A096 120 205 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of May, two thousand twenty-two.

PRESENT: JON O. NEWMAN, DENNIS JACOBS, PIERRE N. LEVAL, Circuit Judges. _____________________________________

XIUFENG LIN Petitioner,

v. 19-2840 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Yerman, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Keith I. McManus, Assistant Director; Rachel L. Browning, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 Xiufeng Lin, a native and citizen of the

People’s Republic of China, seeks review of an August 21,

2019, decision of the BIA affirming a January 18, 2018,

decision of an Immigration Judge (“IJ”) denying asylum,

withholding of removal, and protection under the Convention

Against Torture (“CAT”). In re Xiufeng Lin, No. A096 120 205

(B.I.A. Aug. 21, 2019), aff’g No. A096 120 205 (Immig. Ct.

N.Y. City Jan. 18, 2018). We assume the parties’ familiarity

with the underlying facts and procedural history.

We have reviewed the decision of the IJ as supplemented

by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

Cir. 2005). The applicable standards of review are well

established. See Yanqin Weng v. Holder, 562 F.3d 510, 513

(2d Cir. 2009) (reviewing factual findings for substantial

evidence and questions of law and application of law to fact

de novo). 2 As an initial matter, we lack jurisdiction to review the

agency’s denial of Lin’s asylum claim as untimely. An asylum

claim must be filed within one year of entry or within a

reasonable time of “either . . . changed circumstances which

materially affect the applicant’s eligibility for asylum or

extraordinary circumstances relating to the delay in filing.”

8 U.S.C. § 1158(a)(2)(B), (D); 8 C.F.R. § 1208.4(a)(4)(ii),

(a)(5). Our jurisdiction to review the timeliness finding

or whether an application was filed within a reasonable time

of the changed or extraordinary circumstances is limited to

“constitutional claims or questions of law.” See 8 U.S.C.

§§ 1158(a)(3), 1252(a)(2)(D). Lin has not raised a question

of law sufficient to invoke our jurisdiction as she disputes

the agency’s factual determinations regarding when she knew

of conditions for Christians in China and the reasonableness

of her delay after that point. Moreover, as discussed below,

the agency did not err in its alternative denial of relief on

the merits.

Lin asserted both a fear of forced sterilization because

she has two U.S. citizen children and plans to have additional

children and a fear of persecution because she became a

3 Christian while in the United States. To demonstrate a well-

founded fear of persecution, an asylum applicant must

“establish that [her] fear is objectively reasonable.”

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

A fear is objectively reasonable “even if there is only a

slight, though discernible, chance of persecution,” Diallo v.

INS, 232 F.3d 279, 284 (2d Cir. 2000), but a fear is not

objectively reasonable if it lacks “solid support in the

record” and is merely “speculative at best,” Jian Xing Huang

v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005). An applicant

can either show that she would be singled out for persecution

or demonstrate a pattern or practice of persecution of a group

of similarly situated people. 8 C.F.R. § 1208.13(b)(2).

“[T]o establish eligibility for relief based exclusively on

activities undertaken after . . . arrival in the United

States, an alien must make some showing that authorities in

h[er] country of nationality are (1) aware of h[er] activities

or (2) likely to become aware of h[er] activities.”

Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).

The agency reasonably rejected Lin’s fear of persecution

under the family planning policy. In assessing a fear of

4 sterilization under a coercive population control policy, the

agency considers whether the applicant has “(1) identified

the government policy implicated by the births at issue,

(2) established that government officials would view the

births as a violation of the policy, and (3) demonstrated a

reasonable possibility that government officials would

enforce the policy against petitioner through means

constituting persecution.” Jian Hui Shao v. Mukasey, 546

F.3d 138, 143 (2d Cir. 2008).

Lin conceded that China has relaxed the family planning

policy and she was not in violation of it at the time of her

hearing. Moreover, for largely the reasons set forth in Jian

Hui Shao, we find no error in the agency’s determination that

Lin failed to show a well-founded fear of persecution. See

id. at 158–67. The State Department report and Lin’s other

country conditions evidence discussed forced abortions and

sterilization, but recognized that the family planning policy

primarily was enforced with fines and that the degree of

enforcement varied by region. The evidence did not address

the frequency or manner of enforcement in Lin’s native Fujian

Province. Given the lack of evidence of forced

5 sterilizations in Fujian Province for individuals with U.S.

citizen children, the agency reasonably found Lin’s claim

speculative. Id. at 157–58 (“[W]hen a petitioner bears the

burden of proof, his failure to adduce evidence can itself

constitute the ‘substantial evidence’ necessary to support

the agency’s challenged decision.”); Jian Xing Huang, 421

F.3d at 129 (“In the absence of solid support in the record

for Huang’s assertion that he will be subjected to forced

sterilization, his fear is speculative at best.”).

The agency also reasonably concluded that Lin did not

establish a well-founded fear of future persecution as a

Christian. Lin admitted that the authorities were not aware

of her activities, and did not present evidence of a “unique,

individualized risk of persecution in China,” Jian Liang v.

Garland, 10 F.4th 106, 117 (2d Cir. 2021). She alleged that

her sister-in law was arrested for practicing Christianity in

China, but she provided no corroboration or details to explain

why she would suffer the same fate. Accordingly, her claim

turned on whether she demonstrated a pattern or practice of

persecution of similarly situated Christians. Id. Where,

as here, the conditions for Christians vary by locality, Lin

6 had to show persecution in her region. Id. Lin did not do

so.

The State Department’s 2016 International Religious

Freedom Report reveals some abuse, detention, and harassment

of religious adherents, but also that “religious regulations

. . . vary by province” and, “[d]espite an overall tightening

in spaces for unregistered churches to operate, in some areas,

members . . . said they had more freedom than in the past to

conduct religious services, as long as they gathered only in

private and kept congregation numbers low.” U.S. Dep’t of

State, 2016 Report on Int’l Religious Freedom: China

(Includes Tibet, Hong Kong, and Macau),

https://www.state.gov/reports/2016-report-on-international-

religious-freedom/china-includes-tibet-hong-kong-and-

macau/. The report mentions restriction of religious

practice in several provinces but does not mention Lin’s

native Fujian Province, other than in connection to a missing

Zen Buddhist Monk. Id. Lin’s evidence—a 2016 China Aid

Association Annual Report, an Amnesty International report,

and news articles—describe the detention of lawyers, pastors,

and leaders of underground churches, identify issues for some

7 practitioners who, for example, attempted to block the

destruction of their churches or resist arrest, and discuss

a general tightening of religious restrictions. However, she

has made no showing of restrictions in Fujian Province. See

Jian Liang, 10 F.4th at 117 (holding that applicant failed to

meet burden where his evidence did not “speak[] to persecution

occurring in [his] home province of Fujian”).

Because Lin did not show the well-founded fear of

persecution needed to make out an asylum claim, she was

“necessarily” unable to meet the higher standard for

withholding of removal and CAT protection. Lecaj v. Holder,

616 F.3d 111, 119–20 (2d Cir. 2010).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court