16-4105 Lin v. Whitaker BIA Videla, IJ A088 996 431

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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 1st day of February, two thousand nineteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 PIERRE N. LEVAL, 10 Circuit Judges. 11 _____________________________________ 12 13 KE LONG LIN, 14 Petitioner, 15 16 v. 16-4105 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Cindy S. 27 Ferrier, Assistant Director; Matt 28 A. Crapo, Attorney, Office of 29 Immigration Litigation, United

06152016-10 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED in part and DISMISSED in part.

8 Petitioner Ke Long Lin, a native and citizen of the

9 People’s Republic of China, seeks review of a November 28,

10 2016, BIA decision that affirmed the March 10, 2016, decision

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

12 removal, relief under the Convention Against Torture (“CAT”),

13 and cancellation of removal. In re Ke Long Lin, No. A088 996

14 431 (B.I.A. Nov. 28, 2016), aff’g No. A088 996 431 (Immig.

15 Ct. N.Y. City Mar. 10, 2016). We assume the parties’

16 familiarity with the underlying facts and procedural history

17 in this case. Under these circumstances, we have reviewed

18 both the IJ’s and the BIA’s opinions “for the sake of

19 completeness.” Wangchuck v. Dep’t of Homeland Sec.,

524, 528 (2d Cir. 2006).

21 Lin applied for asylum, withholding of removal, and CAT

22 relief, asserting that he fears persecution based on the birth

23 of his three children in the United States in violation of

24 China’s population control program. The applicable standards

2 07102018-10 1 of review are well established. See Jian Hui Shao v. Mukasey,

2

(2d Cir. 2008).

3 As an initial matter, contrary to Lin’s contention, the

4 agency applied the correct burden when considering his

5 application. See

at 156-57 & n.15. For largely the same

6 reasons as set forth in Jian Hui Shao, we find no error in

7 the agency’s determination that Lin failed to satisfy his

8 burden for asylum, withholding of removal, and CAT relief.

9 See

; see also Paul v. Gonzales,

,

10 156-57 (2d Cir. 2006). While the petitioners in Jian Hui

11 Shao were from Fujian Province, and Lin is from Zhejiang

12 Province, as with the evidence discussed in Jian Hui Shao,

13 Lin’s evidence related to Zhejiang Province does not describe

14 the use of force in the enforcement of the family planning

15 policy against Chinese nationals returning with U.S.-born

16 children. See

.

17 Our jurisdiction to review the agency’s denial of

18 cancellation of removal based on Lin’s failure to establish

19 hardship to a qualifying relative is limited to

20 constitutional claims and questions of law, 8 U.S.C.

21 § 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales,

(2d Cir. 2008), for which our review is de novo,

3 07102018-10 1 Pierre v. Holder,

(2d Cir. 2009). When

2 assessing jurisdiction, we “study the arguments asserted” to

3 “determine, regardless of the rhetoric employed in the

4 petition, whether it merely quarrels over the correctness of

5 the factual findings” or raises a true question of law. Xiao

6 Ji Chen v. U.S. Dep’t of Justice,

(2d Cir.

7 2006).

8 Lin’s argument that the agency erred in characterizing

9 his daughter’s health issues as “manageable” is not colorable

10 because that is how her doctor characterized them. See

11 Barco-Sandoval,

(“[W]e lack jurisdiction to

12 review any legal argument that is so insubstantial and

13 frivolous as to be inadequate to invoke federal-question

14 jurisdiction . . . .”). Lin’s remaining arguments merely

15 quarrel with the agency’s factual findings. See Xiao Ji

16 Chen,

.

17 We agree with the Government that Lin’s brief on appeal

18 to the BIA was inadequate to serve also as a motion to remand

19 for consideration of new evidence. See 8 C.F.R.

20 § 1003.1(d)(3)(iv) (requiring a party asserting that the BIA

21 cannot properly resolve an appeal without further fact-

22 finding to file a motion to remand); BIA Practice Manual Ch.

4 07102018-10 1 5.8(b) (“[P]arties submitting new evidence should articulate

2 the purpose of the new evidence and explain its prior

3 unavailability.”); see also Matter of Fedorenko, 19 I. & N.

4 Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an appellate

5 body, the BIA may not review evidence proffered for the first

6 time on appeal).

7 For the foregoing reasons, the petition for review is

8 DENIED in part and DISMISSED in part.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe 11 Clerk of Court

5 07102018-10