18-241 Lin v. Barr BIA Bain, IJ A078 730 926 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 8th day of July, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 XING LIN, 14 Petitioner, 15 16 v. 18-241 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yee Ling Poon; Deborah 24 Niedermeyer, Law Office of Yee 25 Ling Poon, LLC, New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; John S. Hogan, Assistant 29 Director; Todd J. Cochran, Trial 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC.

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Xing Lin, a native and citizen of the People’s

10 Republic of China, seeks review of a January 3, 2018 decision

11 of the BIA affirming a February 15, 2017 decision of an

12 Immigration Judge (“IJ”) denying asylum as a matter of

13 discretion and granting withholding of removal. In re Xing

14 Lin, No. A 078 730 926 (B.I.A. Jan. 3, 2018), aff’g No. A 078

15 730 926 (Immig. Ct. N.Y. City Feb. 15, 2017). We assume the

16 parties’ familiarity with the underlying facts and procedural

17 history.

18 Under the circumstances of this case, we have reviewed

19 the IJ’s decision as supplemented by the BIA. See Yan Chen

20 v. Gonzales,

(2d Cir. 2005). We review the

21 discretionary denial of asylum for abuse of discretion. 8

(b)(4)(D) (“[T]he Attorney General’s

23 discretionary judgment whether to grant relief under section

24 1158(a) of this title shall be conclusive unless manifestly

2 1 contrary to the law and an abuse of discretion.”); Wu Zheng

2 Huang v. INS,

(2d Cir. 2006).

3 In deciding whether to deny asylum as a matter of

4 discretion, the agency considers “the totality of the

5 circumstances” by “balancing . . . favorable and adverse

6 factors.” Wu Zheng Huang,

; see also In re H-,

7

, 347–48 (BIA 1996). “[T]he BIA has stated

8 that ‘[t]he danger of persecution will outweigh all but the

9 most egregious adverse factors.’” Wu Zheng Huang,

(quoting In re Kasinga,

(BIA

11 1996)). The experience of past persecution also weighs in

12 favor of a grant of asylum, as do “general humanitarian

13 reasons, independent of the circumstances that led to the

14 applicant’s refugee status, such as his or her age, health,

15 or family ties.” In re H-, 21 I. & N. Dec. at 347–48.

16 Adverse factors include criminal convictions, “significant

17 violations of national immigration laws,” and the “manner of

18 entry into this country.” Wu Zheng Huang,

.

19 The regulations instruct:

20 In the event that an applicant is denied asylum 21 solely in the exercise of discretion, and the 22 applicant is subsequently granted withholding of 23 deportation or removal under this section, thereby 24 effectively precluding admission of the applicant’s 25 spouse or minor children following to join him or 3 1 her, the denial of asylum shall be reconsidered. 2 Factors to be considered will include the reasons 3 for the denial and reasonable alternatives available 4 to the applicant such as reunification with his or 5 her spouse or minor children in a third country. 6 7

(e).

8 The agency did not abuse its discretion in denying Lin

9 asylum as an exercise of discretion. Although the BIA could

10 have more fully explained its conclusion that Lin’s fear of

11 separation from his wife was speculative, its conclusion was

12 not erroneous because Lin’s wife is not currently in removal

13 proceedings and, according to Lin’s asylum application, she

14 has remained in the United States since 2000. Further, the

15 BIA considered the issue of family unity and that Lin’s wife

16 and children are in the United States, and thus complied with

17

(e). See Wu Zheng Huang,

18 (noting that petitioner’s appeal of a discretionary denial of

19 asylum to the BIA “allowed the agency to fulfill its duty

20 under

(e) to reconsider the denial with

21 attention to ‘the reasons for the denial and reasonable

22 alternatives available to the applicant such as reunification

23 with his or her spouse or minor children in a third

24 country.’”).

25

4 1 Lin argues that the agency should have considered as a

2 mitigating factor that his attorney devised the scheme

3 involving the fraudulent letter, and that he engaged in this

4 conduct because he feared returning to China. However, the

5 IJ did not overlook Lin’s attorney’s involvement in the fraud,

6 but rather found that Lin minimized his responsibility, which

7 included writing the fraudulent letter himself, obtaining an

8 envelope from China, and providing the letter and envelope to

9 his attorney. The IJ also reasonably determined that Lin’s

10 fraud here was distinct from instances where individuals

11 engage in fraud to escape persecution because Lin was in the

12 United States at the time of the fraud. See Matter of Pula,

13

(BIA 1987) (“The use of fraudulent

14 documents to escape the country of persecution itself is not

15 a significant adverse factor while, at the other extreme,

16 entry under the assumed identity of a United States citizen

17 with a United States passport, which was fraudulently

18 obtained by the alien from the United States Government; is

19 very serious fraud.” (superseded by regulation on other

20 grounds)).

21 Further, the agency considered the relevant factors.

22 The IJ noted that Lin’s positive equities included his

5 1 substantial family ties and his residence in the United States

2 of more than 17 years. The BIA considered the issue of family

3 unity and noted that Lin would not be separated from his three

4 children and that his fear of separation from his wife was

5 speculative. In addition, although “past persecution [is] a

6 major factor favoring asylum,” Wu Zheng Huang,

7 n.11, Lin was granted withholding of removal based on his

8 fear of future persecution, not based on past persecution.

9 Moreover, “significant violations of national immigration

10 laws” is an adverse factor; thus the agency reasonably

11 considered the submission of a fraudulent letter, in an

12 attempt to evade removal, as an adverse factor. See Wu Zheng

13 Huang, 436 F.3d at 98.

14 Accordingly, the agency did not abuse its discretion when

15 it concluded that Lin’s submission of a fraudulent letter to

16 the IJ outweighed the positive factors and that the totality

17 of the circumstances did not merit a favorable exercise of

18 discretion. See id. at 98–99; see also Ke Zhen Zhao v. U.S.

19 Dep’t of Justice,

, 93 (2d Cir. 2001) (“An abuse

20 of discretion may be found . . . where the [BIA’s] decision

21 provides no rational explanation, inexplicably departs from

22 established policies, is devoid of any reasoning, or contains

6 1 only summary or conclusory statements; that is to say, where

2 the Board has acted in an arbitrary or capricious manner.”

3 (internal citations omitted)).

4 For the foregoing reasons, the petition for review is

5 DENIED. All pending motions and applications are DENIED and

6 stays VACATED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court

7