LIN-CHIN v. HOLDER, 361 Fed.Appx. 263 (2nd Cir. 2010)
Dian Jin LIN-CHIN, Petitioner, v. Eric H. HOLDER, Jr.,[fn*] U.S. AttorneyGeneral, United States Department of Justice, Respondents.
No. 08-4383-ag.United States Court of Appeals, Second Circuit.
January 21, 2010.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.][fn*] Pursuant to Federal Rule of Appellate Procedure43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case.Page 264
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 in part and DISMISSED in part.
Norman Kwai Wing Wong, New York, NY, for Petitioner.
Michael F. Hertz, Assistant Attorney General, Cindy S. Ferrier, Senior Litigation Counsel, Kimberly A. Burdge, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: DENNIS JACOBS, Chief Judge, ROSEMARY S. POOLER and REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Dian Jin Lin-Chin, a native and citizen of the People's Republic of China, seeks review of an August 15, 2008 order of the BIA, dismissing an appeal from the June 28, 2006 decision of Immigration Judge ("IJ") Sandy Hom, in which the IJ denied Lin-Chin's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). See Inre Dian Jin Lin-Chin, No. A98 712 265 (B.I.A. Aug. 15, 2008); In re Dian Jin Lin-Chin, No. A98 712 265 (Immig. Ct. N.Y. City June 28, 2006).
Where, as here, the BIA does not adopt the IJ's decision insofar as it was based on an adverse-credibility finding and, in fact, resolves the petition on an assumption of credibility, the BIA's decision becomes the focus of our review. See YanChen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review questions of law and the application of law to undisputed fact de novo and fact-findings for substantial evidence.Page 265See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). In conducting our review, we assume the parties' familiarity with the underlying facts and procedural history of this case.
Lin-Chin contends that the BIA erred in concluding that he failed to demonstrate past persecution or a well-founded fear of future persecution on account of his opposition to China's family planning policies.
We are not persuaded. Lin-Chin's claim of past persecution consisted of being slapped and cursed at on one occasion when he argued with family planning officials about the forced sterilization of his mother. Lin-Chin does not assert a derivative claim of persecution based on the treatment of his mother. And the conduct he experienced directly does not rise to the level of severity indicative of "persecution." SeeIvanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 341
(2d Cir. 2006) (distinguishing "persecution" from "mere harassment").
Lin-Chin's claim of future persecution was also deficient. Even assuming the credibility of his testimony that Chinese authorities tried to arrest him and offered a reward for his capture, Lin-Chin did not indicate how an arrest based on one dispute he had with family planning officials in 2004 would be likely to result in treatment amounting to persecution. SeeJian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir. 2005) (holding that petitioner seeking asylum based on resistance to China's family planning policies was required "to offer credible, specific, and detailed evidence that his well-founded fear is either of forcible sterilization or of some othersort of persecution" (emphasis added)); see also Shaov. Mukasey, 546 F.3d 138, 163 (2d Cir. 2008) (upholding BIA determination that petitioner's "`generalized argument[s]'" failed to demonstrate "reasonable possibility" of future persecution). Under such circumstances, he fails to demonstrate that any subjective fear of future persecution is objectively reasonable. See Shao v. Mukasey at 157-58, 162-66.
Because Lin-Chin failed to challenge the IJ's denial of his CAT claim before the BIA, we lack jurisdiction to consider and, therefore, will dismiss, this portion of his petition.See 8 U.S.C. ยง 1252(d)(1); Karaj v.Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part.