The opinion
09-4985-ag
Lin v. Holder
BIA
Abrams, IJ
A045 700 623
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 30th day of June, two thousand eleven.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_______________________________________
JIU TUAN LIN, a.k.a. LIN JIU TUAN,
a.k.a. TUAN JIU LIN,
Petitioner,
v. 09-4985-ag
NAC
BOARD OF IMMIGRATION APPEALS,
Respondent.
_______________________________________
FOR PETITIONER: Thomas H. Nooter, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Aliza B. Alyeshmerni,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Jiu Tuan Lin, a native and citizen of the People’s
Republic of China, was convicted on a guilty plea of
conspiracy to commit alien smuggling and conspiracy to
commit hostage taking. Having cooperated with the United
States authorities investigating others involved in such
criminal activity, Lin sought to avoid his own removal from
this country. He now seeks review of a November 23, 2009
order of the BIA, which affirmed the August 13, 2009
decision of immigration judge (“IJ”) Steven R. Abrams
denying his application for asylum and withholding of
removal but reversed IJ Abrams’ grant of relief under the
Convention Against Torture (“CAT”). In re Jiu Tuan Lin, No.
A045 700 623 (B.I.A. Nov. 23, 2009), aff’g No. A045 700 623
(Immig. Ct. N.Y. City Aug. 13, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
Under the circumstances of this case, we review the
IJ’s decision as modified by the BIA decision. See Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
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2005). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
As a preliminary matter, because Lin does not challenge
the BIA’s conclusions that he was ineligible for asylum and
withholding of removal, we deem any challenge to those
conclusions waived. See Norton v. Sam’s Club, 145 F.3d 114,
117 (2d Cir. 1998). As a result, we review only the BIA’s
determination that Lin was not eligible for deferral of
removal under the CAT. Lin argues that, in reaching this
conclusion, the BIA engaged in impermissible fact-finding, a
question of law over which we retain jurisdiction. See 8
U.S.C. § 1252(a)(2)(D); see also Tian-Yong Chen v. INS, 359
F.3d 121, 127 (2d Cir. 2004); De La Rosa v. Holder, 598 F.3d
103, 107-08 (2d Cir. 2010). We are not persuaded.
To establish his eligibility for deferral of removal
under the CAT, Lin was required to demonstrate, inter alia,
that government officials in China would “know of or remain
willfully blind to” anticipated acts of torture by persons
against whom Lin had cooperated and “thereafter breach their
legal responsibility to prevent it.” Khouzam v. Ashcroft,
361 F.3d 161, 171 (2d Cir. 2004). The BIA determined that
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Lin’s evidence – that a human trafficker with whom he worked
“has a lot of power in China” and that the trafficker’s
father “is a high ranking official in China” - was
insufficient as a matter of law to establish official
Chinese government acquiescence in the feared retribution or
an inability or unwillingness to prevent it. In reaching
this legal conclusion, the BIA characterized the evidence
about the position of the trafficker’s father as derived
from an uncorroborated cellmate, when, in fact, Lin stated
that he had this information from the trafficker himself.
No matter. The BIA did not disturb the IJ’s factual
determinations as to the father’s position or any other
point in reaching its legal conclusion that the evidence was
insufficient to establish government acquiescence. See 8
C.F.R. § 1003.1(d)(3); De La Rosa v. Holder, 598 F.3d 103,
107-09 (2d Cir. 2010) (BIA reviews legal question of
official acquiescence de novo and related findings of fact
for clear error).
Accordingly, the petition for review is DENIED. As we
have completed our review, any stay of removal that the
Court previously granted in this petition is VACATED, and
any pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
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this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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