GEN LIN, Petitioner, v. -ag ALBERTO GONZALES, ..., (2nd Cir. 2005)

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

United States Courthouse, Foley Square, in the City of New York, on the 4th day of November,

Two Thousand and Five.

PRESENT:

HON. PIERRE N. LEVAL,

HON. CHESTER J. STRAUB,

HON. PETER W. HALL,

Circuit Judges.

-X

GEN LIN,

Petitioner,

-v.- No. 03-40940-ag

ALBERTO GONZALES1,

Respondent.

-X

FOR APPELLANT: Ramesh K. Shrestha, New York, New York.

FOR APPELLEE: Michael J. Butler, Assistant United States Attorney,

Office of the United States Attorney for the Middle

District of Pennsylvania (Thomas A. Marino,

United States Attorney for the Middle District of

Pennsylvania, on the brief), Tallahassee, Florida.

1

2

3 UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the decision of the BIA be and it hereby is AFFIRMED.

Gen Lin, through counsel, petitions for review of the BIA decision affirming the Immigration Judge's ("IJ") decision denying his application for asylum and withholding of removal. We assume the parties' familiarity with the underlying facts and procedural history.

This Court reviews an the BIA's factual findings under the substantial evidence standard, and as such, "a finding will stand if it is supported by `reasonable, substantial, and probative' evidence in the record when considered as a whole." Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (quoting Diallo v. INS, 232 F.3d 297, 287 (2d Cir. 2000)). The same standard of review applies to the denial of withholding of removal under the INA and the CAT. See Melendez v. United States Dep't of Justice, 926 F.2d 211, 218 (2d Cir. 1991).

In this case, the BIA's eligibility determination was supported by the record as a whole.

The BIA correctly pointed out that Lin had presented no evidence sufficient to demonstrate the requisite fear of persecution based on any of the grounds enumerated in the INA.

Roseann B. MacKechnie, Clerk By:

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto R. Gonzales is autom atically sub stituted fo r form er Atto rney G enera l John Ashc roft as a respo ndent in this case .

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