Lin v. INS, (2nd Cir. 2007)

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02-4565-ag

L in v. INS

BIA

J a n k u n , IJ

A70-580-836

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY

O R D E R S FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S

L O C A L RULE 0.23 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER

P A P E R IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A

C I T A T I O N APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR

B E ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." UNLESS THE SUMMARY ORDER IS

A V A I L A B L E IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT

O F FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/), THE PARTY

C I T I N G THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

W I T H THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY

R E A S O N OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST

I N C L U D E REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE

O R D E R WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of N e w York, on the 13th day of July, two thousand and seven. PRESENT: H O N . DENNIS JACOBS, C h i e f Judge, HON. JOSEPH M. McLAUGHLIN, H O N . SONIA SOTOMAYOR, C i r c u i t Judges. B I YONG LIN, Petitioner, v. 02-4565-ag NAC I M M I G R A T I O N AND NATURALIZATION SERVICE, Respondent. F O R PETITIONER: J i m Li, New York, New York.

F O R RESPONDENTS: S t e v e n M. Biskupic, United States A t t o r n e y for the Eastern District of W i s c o n s i n , Christian R. Larsen, A s s i s t a n t United States Attorney, M i l w a u k e e , Wisconsin.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

P e t i t i o n e r Bi Yong Lin, a native and citizen of the P e o p l e ' s Republic of China, seeks review of a September 17, 2 0 0 2 order of the BIA affirming the October 21, 1998 d e c i s i o n of Immigration Judge ("IJ") William F. Jankun d e n y i n g his applications for asylum and withholding of removal. In re Bi Yong Lin, No. A70 580 836 (B.I.A. Sept.

1 7 , 2002), aff'g No. A70 580 836 (Immig. Ct. N.Y. City Oct.

2 1 , 1998). We assume the parties' familiarity with the u n d e r l y i n g facts and procedural history of the case.

W h e r e , as here, the BIA summarily affirms the IJ's d e c i s i o n without issuing an opinion, see 8 C.F.R. § 1 0 0 3 . 1 ( e ) ( 4 ) , we review the IJ's decision as the final a g e n c y determination. See, e.g., Yu Sheng Zhang v. U.S.

D e p ' t of Justice, 362 F.3d 155, 158 (2d Cir. 2004). We r e v i e w the agency's factual findings under the substantial e v i d e n c e standard. See, e.g., Zhou Yun Zhang v. INS, 386 F . 3 d 66, 73 & n.7 (2d Cir. 2004).

U n d e r 8U.S.C. § 1252(d)(1), this Court "may review a f i n a l order of removal only if . . . the alien has exhausted a l l administrative remedies available to the alien as of right." To preserve a claim for review in this Court, the a l i e n must raise the issues on which that claim turns before t h e BIA, and must, at minimum, identify the alleged errors i n the IJ's analysis. Foster v. INS, 376 F.3d 75, 78 (2d C i r . 2004). Therefore, an applicant's failure to raise any l e g a l argument to the BIA, or to "identify, even by i m p l i c a t i o n , any error in the IJ's ruling" on a particular c l a i m , may bar our consideration of that claim altogether.

K a r a j v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

H e r e , Lin's claims for asylum and withholding of r e m o v a l were premised exclusively on his claim that his wife w a s forcibly sterilized after giving birth to a second child w i t h o u t permission. The IJ denied both claims based on a f i n d i n g that Lin was not credible, having identified n u m e r o u s inconsistencies in his testimony and documentary s u b m i s s i o n s , and noted that even assuming Lin's wife was s t e r i l i z e d , he failed to establish through credible evidence t h a t the operation was involuntary. In his brief to the B I A , Lin asserted that this latter finding was erroneous, w i t h o u t offering any support for this assertion or c h a l l e n g i n g the adverse credibility finding on which the I J ' s conclusion was based. Because he did not identify, m u c h less challenge, any of the IJ's factual findings u n d e r l y i n g the denial of relief, he effectively left his c l a i m s for asylum and withholding unchallenged. See S t e e v e n e z v. Gonzales, 476 F.3d 114, 117-18 (2d Cir. 2007); F o s t e r , 376 F.3d 77-78. We do not consider whether Lin's a r g u m e n t s to the BIA were sufficient to satisfy the s t a t u t o r y jurisdiction requirement, because the government h a s argued that he failed to exhaust the relevant issues to t h e BIA. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 1 0 4 , 123-24 (2d Cir. 2007); see also Mei Chai Ye v. U.S.

D e p ' t of Justice, __ F.3d __, 2007 WL 1630127, at *8 (2d C i r . June 6, 2007).

F o r the foregoing reasons, the petition for review is DENIED. Having completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot.

F O R THE COURT: Cath e r i n e O'Hagan Wolfe, Clerk By:

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