Zi Qiang Lin v. Bureau of Citizenship & Immigration Services
Zi Qiang Lin v. Bureau of Citizenship & Immigration Services
Opinion of the Court
SUMMARY ORDER
Petitioner Zi Qiang Lin, a native and citizen of the People’s Republic of China, seeks review of a January 31, 2006 order of the BIA affirming the September 16, 2004 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying his applications for asylum, withholding of removal,
Where, as here, the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, with some modifications, we review the IJ’s opinion as modified by the BIA. See Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir. 2006) (agreeing with this principle, but avoiding remand, in spite of deficiencies in an adverse credibility determination, because it could be confidently predicted that the IJ would adhere to the decision were the case remanded).
We lack jurisdiction to consider the agency’s finding that Lin failed to demonstrate changed or extraordinary circumstances to excuse the untimely filing of his asylum application, except to the extent that he raises constitutional claims or questions of law in his petition for review. See 8 U.S.C. §§ 1158(a)(3); 1252(a)(2)(D). Upon review of Lin’s brief, we find that he challenges only the agency’s factual and discretionary determinations; therefore, the asylum claim is dismissed for lack of jurisdiction. See Xiao Ji Chen, 471 F.3d at 328-30.
Lin’s CAT claim is also dismissed for lack of jurisdiction, because he failed to exhaust his administrative remedies by seeking review of that claim in his brief to the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119-20 & n. 3 (2d Cir. 2006).
Although we reach the merits of Lin’s withholding claim, which is not subject to the one-year bar, we deny the petition for review with respect to that claim, because substantial evidence supports the BIA’s findings that Lin was not credible and failed to meet his burden of proof. See Xiao Ji Chen, 471 F.3d at 332-33. To the extent that Lin’s claim was based on his religion, the BIA reasonably found that he (1) admitted he had not experienced religion-based harm in the past; (2) failed to mention in his asylum application that his work unit had warned him to stop attending an underground church; and (3) provided no other evidence to suggest that he was more likely than not to suffer persecution on account of his religion in the future.
The BIA also reasonably found that Lin failed to establish that his wife was forced to have an abortion in May 2001. Because Lin was in the United States at that time, and his only knowledge of the alleged abortion was through what his wife told him, the agency was reasonable in requiring reliable corroboration. Moreover, the agency reasonably found that the unsworn, non-notarized letter from Lin’s wife was
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. Having completed our review, we DENY Lin’s motion for a stay of removal.
Reference
- Full Case Name
- Zi Qiang LIN v. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES
- Status
- Published