Yong Fu Lin v. United States Department of Justice
Opinion of the Court
SUMMARY ORDER
Petitioner Yong Fu Lin, a citizen of the People’s Republic of China, petitions for
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Bhanot v. Chertoff, 474 F.3d 71, 72 (2d Cir. 2007). This Court reviews the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Secaida-Rosales v. INS, 331 F.3d 297, 306-07 (2d Cir. 2003).
Lin claims that the IJ erred in pretermitting his asylum application because the agency read a documentary corroboration requirement into 8 U.S.C. § 1158(a)(2)(D), thereby placing a higher burden on him to establish that the filing of his asylum application was timely. However, we need not reach this claim because Lin is not eligible for either asylum or withholding of removal for past persecution as the spouse of someone forcibly sterilized.
. Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). However, as Lin’s jurisdictional issues are complex and his claim is plainly without merit, we assert hypothetical jurisdiction. See Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004) (asserting hypothetical jurisdiction where, as here, the jurisdictional issues related to statutory and not constitutional jurisdiction); see also Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 338 n. 2 (2d Cir. 2006) ("Our assumption of jurisdiction to consider first the merits is not barred where the jurisdictional constraints are imposed by statute, not the Constitution, and where the jurisdictional issues are complex and the substance of the claim is, as here, plainly without merit.”).
. Though Lin and his wife were allegedly married in a traditional ceremony in 1984, the couple did not register their marriage until 1990, after the wife’s sterilization. Regardless, as Shi Liang Lin, 494 F.3d 296, 2007 WL 2032066, explicitly applies to both traditional and legal marriages, Yong Fu Lin’s application is foreclosed. Id. at-, at *13.
. Judge Sotomayor continues to disagree with the majority opinion in Shi Liang Lin to the extent it applies beyond unmarried partners, see Shi Liang Lin, 494 F.3d at 296, 2007 WL 2032066, at *30 (Sotomayor, J., concurring), but she is bound by court precedent. See United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004).
Reference
- Full Case Name
- Yong Fu LIN v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Alberto R. Gonzales
- Status
- Published