LIN v. BARR (2020)

United States Court of Appeals, Second Circuit.

Xing LIN, Petitioner, v. William P. BARR, United States Attorney General, Respondent.

18-241

Decided: July 08, 2020

PRESENT: JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, Circuit Judges. FOR PETITIONER: Yee Ling Poon; Deborah Niedermeyer, Law Office of Yee Ling Poon, LLC, New York, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; John S. Hogan, Assistant Director; Todd J. Cochran, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

SUMMARY ORDER

Petitioner Xing Lin, a native and citizen of the People's Republic of China, seeks review of a January 3, 2018 decision of the BIA affirming a February 15, 2017 decision of an Immigration Judge (“IJ”) denying asylum as a matter of discretion and granting withholding of removal. In re Xing Lin, No. A XXX XXX XXX (B.I.A. Jan. 3, 2018), aff'g No. A XXX XXX XXX (Immig. Ct. N.Y. City Feb. 15, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed the IJ's decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the discretionary denial of asylum for abuse of discretion. 8 U.S.C. § 1252(b)(4)(D) (“[T]he Attorney General's discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion.”); Wu Zheng Huang v. INS, 436 F.3d 89, 96 (2d Cir. 2006).

In deciding whether to deny asylum as a matter of discretion, the agency considers “the totality of the circumstances” by “balancing ․ favorable and adverse factors.” Wu Zheng Huang, 436 F.3d at 98; see also In re H-, 21 I. & N. Dec. 337, 347–48 (BIA 1996). “[T]he BIA has stated that ‘[t]he danger of persecution will outweigh all but the most egregious adverse factors.’ ” Wu Zheng Huang, 436 F.3d at 98 (quoting In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996)). The experience of past persecution also weighs in favor of a grant of asylum, as do “general humanitarian reasons, independent of the circumstances that led to the applicant's refugee status, such as his or her age, health, or family ties.” In re H-, 21 I. & N. Dec. at 347–48. Adverse factors include criminal convictions, “significant violations of national immigration laws,” and the “manner of entry into this country.” Wu Zheng Huang, 436 F.3d at 98. The regulations instruct:

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

8 C.F.R. § 1208.16(e).

The agency did not abuse its discretion in denying Lin asylum as an exercise of discretion. Although the BIA could have more fully explained its conclusion that Lin's fear of separation from his wife was speculative, its conclusion was not erroneous because Lin's wife is not currently in removal proceedings and, according to Lin's asylum application, she has remained in the United States since 2000. Further, the BIA considered the issue of family unity and that Lin's wife and children are in the United States, and thus complied with 8 C.F.R. § 1208.16(e). See Wu Zheng Huang, 436 F.3d at 94 (noting that petitioner's appeal of a discretionary denial of asylum to the BIA “allowed the agency to fulfill its duty under 8 C.F.R. § 1208.16(e) to reconsider the denial with attention to ‘the reasons for the denial and reasonable alternatives available to the applicant such as reunification with his or her spouse or minor children in a third country.’ ”).

Lin argues that the agency should have considered as a mitigating factor that his attorney devised the scheme involving the fraudulent letter, and that he engaged in this conduct because he feared returning to China. However, the IJ did not overlook Lin's attorney's involvement in the fraud, but rather found that Lin minimized his responsibility, which included writing the fraudulent letter himself, obtaining an envelope from China, and providing the letter and envelope to his attorney. The IJ also reasonably determined that Lin's fraud here was distinct from instances where individuals engage in fraud to escape persecution because Lin was in the United States at the time of the fraud. See Matter of Pula, 19 I. & N. Dec. 467, 474 (BIA 1987) (“The use of fraudulent documents to escape the country of persecution itself is not a significant adverse factor while, at the other extreme, entry under the assumed identity of a United States citizen with a United States passport, which was fraudulently obtained by the alien from the United States Government; is very serious fraud.” (superseded by regulation on other grounds)).

Further, the agency considered the relevant factors. The IJ noted that Lin's positive equities included his substantial family ties and his residence in the United States of more than 17 years. The BIA considered the issue of family unity and noted that Lin would not be separated from his three children and that his fear of separation from his wife was speculative. In addition, although “past persecution [is] a major factor favoring asylum,” Wu Zheng Huang, 436 F.3d at 98 n.11, Lin was granted withholding of removal based on his fear of future persecution, not based on past persecution. Moreover, “significant violations of national immigration laws” is an adverse factor; thus the agency reasonably considered the submission of a fraudulent letter, in an attempt to evade removal, as an adverse factor. See Wu Zheng Huang, 436 F.3d at 98.

Accordingly, the agency did not abuse its discretion when it concluded that Lin's submission of a fraudulent letter to the IJ outweighed the positive factors and that the totality of the circumstances did not merit a favorable exercise of discretion. See id. at 98–99; see also Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“An abuse of discretion may be found ․ where the [BIA's] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” (internal citations omitted)).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.