Tao Lin, a/k/a NING XING WANG v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1328
___________
TAO LIN, a/k/a NING XING WANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077 977 946)
Immigration Judge: Honorable Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 17, 2010
Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges
(Opinion filed: February 22, 2010 )
___________
OPINION
___________
PER CURIAM
Tao Lin petitions for review of a Board of Immigration Appeals (“BIA”) decision
dismissing his appeal of the Immigration Judge’s (“IJ”) decision denying his applications
for relief from removal. We will deny the petition for review.

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Lin is a native and citizen of China who lived in Fujian Province. Lin was
detained when he arrived at the Los Angeles, California airport in October 2001. Shortly
thereafter, a notice to appear was issued charging that Lin was subject to removal
because, at the time of his application for admission, he did not possess a valid entry
document. Lin applied for withholding of removal and protection under the Convention
Against Torture (“CAT”). Through counsel, Lin conceded at his hearing that his asylum
application was untimely.
Lin testified that in May 2001 he and his girlfriend, who was nineteen years old
and three months pregnant, applied for a marriage license. Chinese officials rejected the
application because his girlfriend was too young to marry. Apparently in an effort to
persuade officials to issue the license, Lin’s girlfriend told them that she was pregnant.
The officials detained Lin and his girlfriend immediately. Lin’s girlfriend was taken to a
family planning office so that an abortion could be performed.
Lin argued with officials and told them that what they were doing was inhumane.
Officials detained him at the local police station for two days and beat him by hitting him
in the stomach and kicking him. Lin stated that the men told him what he did was illegal,
insulted him, and threatened to beat him to death. Lin testified that he was then taken to a
family planning office and told that he would be detained and fined. Lin stated that he
asked for his girlfriend and child and he was told that his girlfriend had already had an
abortion. Lin argued further with officials and, when he had the opportunity, ran out of

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Lin’s written statement is inconsistent with his testimony. Lin wrote that he went to1
the family planning office after his release from jail to ask for his girlfriend and that he
fled when a security guard was ordered to catch him.
Noting that the IJ did not make an adverse credibility finding, the BIA assumed Lin’s2
testimony was credible for purposes of his appeal.
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the office.1
Lin fled to his aunt’s house and ultimately came to the United States. He never
returned home or saw his girlfriend again. Lin’s girlfriend, who lives in China, has
written him letters and has told him that she had an abortion. Lin testified that
government officials have been to his house three or four times looking for him. The
officials damaged some personal items and used some threatening words. Lin believes
that, if he returns to China, he will be detained because officials told him and his family
that he had not been punished for what he did. Lin also stated that he must be fined.
The IJ found Lin removable as charged and denied his applications for relief from
removal. The IJ concluded that Lin was not eligible for withholding of removal because
he did not satisfy the statutory definition of “refugee,” which, in his case, required a
showing that he was persecuted on account of his “other resistance” to a coercive
population control program. The IJ also concluded that the facts did not support a claim
under the CAT.
On appeal, the BIA agreed with the IJ that Lin did not show that any harm he
experienced was on account of one of the grounds enumerated in the definition of
“refugee.” The BIA recognized that the definition of refugee includes one who has been2

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The relevant statutory provision states:3
[A] person who has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted for failure or refusal to
undergo such a procedure or for other resistance to a coercive population
control program, shall be deemed to have been persecuted on account of
political opinion, and a person who has a well founded fear that he or she
will be forced to undergo such a procedure or subject to persecution for
such failure, refusal, or resistance shall be deemed to have a well founded
fear of persecution on account of political opinion.
8 U.S.C. § 1101(a)(42) (emphasis added).
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persecuted for “other resistance” to a coercive population control program. The BIA3
explained that “other resistance” must be a failure or refusal to comply with official
demands to adhere to birth planning policies and found that Lin did not show that he was
harmed on account of such resistance. Rather, the BIA found that Lin was detained and
mistreated because he impregnated his underage girlfriend.
The BIA also concluded that Lin did not show that he would be persecuted if he
returned to China. The BIA explained that there was no evidence that a fine had been
assessed, that any fine would be so great as to constitute persecution, or that any fine
would be on account of his “other resistance” to China’s family planning policy. The
BIA further noted that there was no evidence showing that officials intended to harm him
in a way that would constitute persecution or torture. The BIA concluded that Lin had not
met his burdens of proof for withholding of removal or protection under the CAT. This
petition for review followed.
We review the decision of the BIA where, as here, the BIA did not adopt the IJ’s

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After Lin’s arrival in California, venue was changed to New York. Venue was4
changed to New Jersey in 2005.
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decision or defer to the IJ’s findings. Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.
2005). We review the BIA’s findings under a substantial evidence standard, which
requires that we uphold the BIA’s findings unless the evidence compels a contrary
conclusion. Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004).
Lin argues in his brief that his asylum application “should have been kept open.”
(Pet’r Br. 10.) He asserts that, although his application was untimely filed in 2005, he
was ready to file the application in 2003, but he was precluded from doing so by the
Immigration Court in New York. Lin did not pursue his asylum claim in his proceedings4
before the IJ nor did he raise an issue on appeal to the BIA as to the timeliness of his
application. We lack jurisdiction to review a claim that an alien has not raised and
exhausted in the administrative proceedings. Abdulrahman v. Ashcroft, 330 F.3d 587,
594-95 (3d Cir. 2003). Moreover, even if Lin had exhausted his claim, we lack
jurisdiction to review discretionary determinations regarding whether an untimely asylum
application should be excused. Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir.
2006).
To the extent Lin seeks to challenge the BIA’s conclusion that he was not eligible
for withholding of removal because he was not persecuted on account of his “other
resistance” to a coercive population control program, we agree with the Government that
Lin has waived such a challenge. Lin does not advance any legal argument in his brief

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We disagree with the Government, however, that we would lack jurisdiction to5
entertain such a challenge due to Lin’s failure to raise the argument before the BIA. See
Lin v. Attorney General, 543 F.3d 114, 126 (3d Cir. 2008) (holding court has jurisdiction
to consider issue that was not presented to BIA where BIA sua sponte addressed and
ruled on the unraised issue).
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challenging the BIA’s definition of “other resistance” nor does he contend that his
conduct fit within the BIA’s definition. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d
Cir. 2005) (finding appeal of alien’s claim waived where she failed to raise any argument
regarding the denial of her claim in her brief).5
Finally, Lin argues that the IJ erred in denying his CAT claim because the IJ did
not consider in detail the country conditions or the possibility that he may be imprisoned
or tortured for illegally departing China, for voicing his opinion, or for violating the
family planning policy. As noted above, our review is limited to the BIA’s decision. To
the extent Lin seeks to challenge the BIA’s decision, the BIA concluded that the
background evidence stating that officials have been known to torture detainees was
insufficient to show that Lin was likely to be a victim of torture. The BIA also found no
evidence showing that officials intended to harm him in a way that would constitute
torture. Lin has not shown that the record compels a contrary conclusion.
Accordingly, we will deny the petition for review.

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