Filed: Sep. 27, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT Nos. 10-14216 & 11-10572 SEPTEMBER 27, 2011 Non-Argument Calendar JOHN LEY _ CLERK Agency Nos. A98-971-289, A098-971-289 BIN BIN LIN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petitions for Review of a Decision of the Board of Immigration Appeals _ (September 27, 2011) Before HULL, MARTIN and FAY, Circuit Judges. PER CURIAM: In this consolidated appeal, Bin
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT Nos. 10-14216 & 11-10572 SEPTEMBER 27, 2011 Non-Argument Calendar JOHN LEY _ CLERK Agency Nos. A98-971-289, A098-971-289 BIN BIN LIN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petitions for Review of a Decision of the Board of Immigration Appeals _ (September 27, 2011) Before HULL, MARTIN and FAY, Circuit Judges. PER CURIAM: In this consolidated appeal, Bin ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 10-14216 & 11-10572 SEPTEMBER 27, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
Agency Nos. A98-971-289, A098-971-289
BIN BIN LIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 27, 2011)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Bin Bin Lin, a native and citizen of China,
petitions for review of: (1) the final order of the Board of Immigration Appeals
(“BIA”) affirming the Immigration Judge’s (“IJ”) order denying her claims for
asylum and withholding of removal;1 and (2) the BIA’s denial of her subsequent
motion to reopen her removal proceedings. On appeal, Lin challenges the finding
that she failed to show a well-founded fear of persecution based on her violation
of China’s family planning policies. After review, we deny the petitions for
review.2
I. FUTURE PERSECUTION CLAIMS
To establish asylum eligibility, an alien must show, with specific and
credible evidence, either past persecution or a “well-founded fear” of future
persecution on account of a statutorily listed factor. Immigration and Nationality
Act (“INA”) § 101(a)(42), 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a)-(b);
1
On appeal, Lin does not challenge the denial of her request for relief under the
Convention Against Torture and thus has abandoned that claim. See Sepulveda v. U.S. Att’y
Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
Where, as here, the BIA issues its own opinion and adopts the reasoning of the IJ, we
review the decisions of both the BIA and the IJ. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284
(11th Cir. 2001). In so doing, we review legal conclusions de novo, and factual findings under
the “highly deferential” substantial evidence standard. Kasemzadeh v. U.S. Att’y Gen.,
577 F.3d
1341, 1350-51 (11th Cir. 2009). Under the substantial evidence test, we will reverse only if the
record compels it and the “mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.”
Id. at 1351 (quotation marks
omitted).
2
Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1230-31 (11th Cir. 2005).3
Government-ordered forced sterilization or persecution for refusing to undergo
such a procedure is “persecution on account of political opinion.” INA
§ 101(a)(42)(B); 8 U.S.C. § 1101(a)(42)(B).
Lin’s asylum application rests solely on a claim of future persecution.
Specifically, Lin alleges that if she returns to her hometown of Hou Dong Village,
Tan Tou Town, Chang Le City in Fujian Province, she will be forcibly sterilized
and fined because she already has two children, both boys, who were born in the
United States.4
To establish a well-founded fear, “an applicant must demonstrate that his or
her fear of persecution is subjectively genuine and objectively reasonable.” Al
Najjar v. Ashcroft,
257 F.3d 1262, 1289 (11th Cir. 2001). To show a well-
founded fear, the applicant must present “specific, detailed facts showing a good
reason to fear that he or she will be singled out for persecution.”
Id. at 1287
3
Similarly, an applicant for withholding of removal must show it is more likely than not
that she will be persecuted based on a protected ground. Mendoza v. U.S. Att’y Gen.,
327 F.3d
1283, 1287 (11th Cir. 2003); 8 C.F.R. § 208.16(b). Because the standard for establishing
eligibility for withholding of removal is higher than the standard for establishing asylum
eligibility, an applicant who, like Lin, fails to meet her burden of proof for asylum necessarily
fails to establish entitlement to withholding of removal. See D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 819 (11th Cir. 2004).
4
Lin’s second child was born in the United States two months after she filed her asylum
application. At the time of her removal hearing, Lin was two-months pregnant with her third
child.
3
(quotation marks omitted). The Supreme Court has explained that “so long as an
objective situation is established by the evidence, it need not be shown that the
situation will probably result in persecution, but it is enough that persecution is a
reasonable possibility.” INS v. Cardoza-Fonseca,
480 U.S. 421, 440,
107 S. Ct.
1207, 1217 (1987) (quotation marks omitted). The Supreme Court declined to
elaborate further, however, and observed that:
[t]here is obviously some ambiguity in a term like “well-founded
fear” which can only be given concrete meaning through a process of
case-by-case adjudication. In that process of filling any gap left,
implicitly or explicitly, by Congress, the courts must respect the
interpretation of the agency to which Congress has delegated the
responsibility for administering the statutory program.
Id. at 448, 107 S. Ct. at 1221 (quotation marks omitted).
The BIA has determined that asylum claims by Chinese nationals who fear
future sterilization based on China’s one-child policy must be evaluated on a case-
by-case basis. In re J-H-S-, 24 I.&N. Dec. 196, 201 (BIA 2007), pet. for review
denied sub. nom. Shao v. Mukasey,
546 F.3d 138 (2d Cir. 2008). To demonstrate
an objectively reasonable fear, the alien must show: (1) “the details of the family
planning policy relevant to [her]”; (2) “the alien violated the policy”; and (3) “the
violation of the family planning policy would be punished in the local area in a
way that would give rise to an objective fear of future persecution.”
Id. at 198-
4
99.5
II. RULINGS ON LIN’S FUTURE PERSECUTION CLAIMS
Here, the IJ and the BIA concluded that Lin had not established that her
municipality was enforcing the family planning policy in a way that would rise to
the level of persecution. The BIA explained that: (1) the record showed that there
was “no uniform policy regarding the implementation of the population control
law with respect to children born outside of China”; and (2) “while some
individuals may be subject to economic penalties or sanctions for such births,
[Lin’s] evidence does not establish penalties or sanctions rising to the level of
persecution.”
The IJ and BIA concluded that the Chinese government does not have a
national policy of forcibly sterilizing parents who return with two children born in
the United States, but rather that these parents tend to be subjected to economic
penalties and fines. The IJ and the BIA cited several recent published BIA
opinions that considered State Department documents also found in Lin’s record,
such as the 2007 China Profile of Asylum Claims and Country Conditions (“2007
Country Profile”). See In re H-L-H- & Z-Y-Z-, 25 I.&N. Dec. 209 (BIA 2010); In
5
Lin does not argue that the BIA’s three-part test is an unreasonable interpretation of the
term “well-founded fear” in INA § 101(a)(42), 8 U.S.C. § 1101(a)(42)(A), to which we should
not apply Chevron deference.
5
re J-H-S-, 24 I.&N. Dec. 196 (BIA 2007), pet. for review denied sub nom., Shao v.
Mukasey,
546 F.3d 128 (2d Cir. 2008); In re J-W-S-, 24 I.&N. Dec. 185 (BIA
2007).
III. SUBSTANTIAL EVIDENCE ANALYSIS
Substantial evidence supports the finding of the IJ and the BIA that Lin’s
fear of forced sterilization or persecutory fines was not objectively reasonable.
The documentary evidence indicates that couples who return to Fujian Province
with two U.S.-born children are not deemed to have violated the one-child policy
at all and, even if they were, they would only be fined.
Specifically, the 2007 Country Profile states that: (1) China’s national
policy prohibits the use of physical force to compel a person to submit to
sterilization; (2) local enforcement of family planning policies is uneven, but
consulate general officials visiting Fujian Province and interviewing visa
applicants from Fujian Province found evidence of coercion through public
pressure and fines, but not the use of physical force; (3) there were some reports in
2006 of forced sterilization in Fujian Province, but Chinese officials claimed these
were rare, unsanctioned incidents carried out by overzealous officials who had
exceeded their authority; and (4) U.S.-born children of Chinese couples who
return to Fujian Province are not counted under the one-child policy if the parents
6
do not enter the children into the household registry; however, the children then
would not be eligible for free education, free medical care or other free social
services.
The record also contains an October 2006 letter from the Fujian Province
Population and Family Planning Committee (“FPPFPC”) to the U.S. Consulate
General advising that: (1) children born abroad are not considered permanent
residents of China and, thus, would not be counted under the one-child policy if
the children are not entered in the household registery; (2) under Fujian Province
regulations, there are no forced sterilizations; and (3) because Villagers’
Committees do not have the authority to “make decisions on family planning
disposition[s],” any “certificate/proof issued by said Committee should be deemed
ineffective.” In a follow-up letter dated January 2007, the FPPFPC clarified that a
child born overseas but who has not established permanent residency in China (by
being entered in the household registry) would not be counted even if the child
was “administered as a Chinese citizen.”6
Lin’s particularized evidence does not compel a conclusion to the contrary.
Lin testified that other members of her family were forcibly sterilized. However,
6
Under Chinese law, a U.S.-born child is considered a Chinese citizen unless the parents
are lawful permanent residents or citizens of the United States.
7
Lin did not state that these family members had given birth to two children in the
United States. Thus, this evidence does not bear on whether Lin, whose children
were born in the United States, would be forcibly sterilized even if she did not
enter her children in the household registry.
Lin submitted: (1) statements from her mother and father-in-law, who went
to the Xia Jiang and Hou Dong Village Committees, respectively, and were told
that either Lin or her husband would be required to undergo sterilization if they
returned to China with their two U.S.-born children; and (2) a December 2008
notice purportedly from the Tan Tou Town family planning office, obtained by
Lin’s mother, stating that Lin was a Chinese citizen, all Chinese citizens who give
birth to two children “must undergo sterilization surgery,” and Lin’s children born
abroad would be “administered as Chinese citizens.”
The IJ and the BIA gave this documentary evidence little weight, however,
because it was inconsistent with the FPPFPC’s correspondence to the U.S.
Consulate General and the State Department reports. Furthermore, the IJ
questioned the authenticity of the Tan Tou Town notice. The IJ noted that the
document was not authenticated as required by 8 C.F.R. § 1287.6(b) and that,
according to the 2007 Country Profile, such documentation from Fujian Province
8
is subject to widespread fabrication and fraud.7
Substantial evidence also supports the finding that Lin did not show an
objectively reasonable fear of economic persecution. Fines may amount to
persecution if they cause a “severe economic disadvantage,” considering the
alien’s net worth, other sources of income and the conditions of the local
economy. See In re T-Z-, 24 I.&N. Dec. 163, 173-74 (BIA 2007) (quotation
marks omitted). To meet the severe economic disadvantage standard, the fine
should reduce the alien “to an impoverished existence.”
Id. at 174; see also Yang
v. U.S. Att’y Gen,
418 F.3d 1198, 1203 (11th Cir. 2005) (concluding that a single
fine for the birth of second child that the Chinese alien did not dispute and paid
within three days of the assessment did not amount to past persecution).
The record reflects that it is unlikely Lin’s U.S.-born children will be
7
There is no merit to Lin’s claim that the IJ and the BIA believed they were required to
give greater weight to State Department documents, such as the 2007 Country Profile. Rather,
the IJ discussed the 2007 Country Profile and explained why that evidence was entitled to greater
weight than Lin’s statements and unauthenticated documents.
Similarly, we reject Lin’s argument that the IJ and the BIA failed to consider all of her
evidence or to conduct a case-by-case evaluation of her asylum claim. The IJ reviewed Lin’s
evidence and came to a decision based on the weight he gave that evidence in relation to the
other documentary evidence. Although the BIA’s decision did not review all of Lin’s evidence,
it stated that the IJ had engaged in a lengthy discussion of the evidence and that the BIA agreed
with the IJ’s conclusion that Lin had failed to meet her burden of proof as to asylum eligibility.
See Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010) (explaining that the BIA and
the IJ “are not required to address specifically each claim the petitioner made or each piece of
evidence the petitioner presented, but they must consider the issues raised and announce their
decision in terms sufficient to enable a reviewing court to perceive that they have heard and
thought and not merely reacted” (quotation marks and brackets omitted)).
9
counted toward China’s family planning policy as long as Lin does not enter them
in her household registry. Thus, it appears Lin will not be fined at all, although
her children will be ineligible for free social services such as education and
medical care.
Even assuming Lin were fined, the record does not compel a conclusion that
the fine would reduce Lin to an impoverished existence. The 2007 Country
Profile indicated that, while fines can be significant, the Chinese government
permits them to be paid in installments and local village committees can sue
couples who refuse to pay the fine, but cannot garnish their wages. Lin testified
that her fine could amount to approximately $5,000 or $6,000. However, she did
not offer any evidence of her net worth, her other sources of income, if any, or the
economic conditions in Hou Dong Village or Tan Tou Town. On this record, we
are not compelled to conclude that any fine imposed would reduce Lin to an
impoverished existence.
IV. MOTION TO REOPEN
Lin argues that the BIA abused its discretion in denying her motion to
reopen.8 An alien subject to a final order of removal may file a motion to reopen
8
We review the denial of a motion to reopen for an abuse of discretion. Zhang v. U.S.
Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009). Review “is limited to determining whether
the BIA exercised its discretion in an arbitrary or capricious manner.”
Id.
10
based on previously unavailable and material evidence of changed country
conditions. INA § 240(c)(7)(A), (C)(ii), 8 U.S.C. § 1229a(c)(7)(A), (C)(ii). The
motion to reopen must “state new facts that will be proven at a hearing to be held
if the motion is granted and shall be supported by affidavits or other evidentiary
material.”
Id. § 240(c)(7)(B), 8 U.S.C. § 1299a(c)(7)(B). “A motion to reopen
proceedings shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Because
motions to reopen are disfavored in removal proceedings, the movant bears a
“heavy burden,” Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009),
and must show that, if proceedings were reopened, “the new evidence would likely
change the result in the case.” Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256-57
(11th Cir. 2009). We have concluded that evidence of a recent increased
campaign of forced sterilization in the alien’s home village may satisfy the
changed country conditions requirement. See, e.g.,
id. at 1254; Li v. U.S. Att’y
Gen.,
488 F.3d 1371, 1375 (11th Cir. 2007).
Here, Lin has not met her heavy burden. Unlike in Li and Jiang, cited
above, Lin does not assert that enforcement of the family planning policy has
intensified in her home town since her August 24, 2009 hearing. Furthermore,
11
many of the documents Lin offered in her motion to reopen predate her hearing,
and Lin gave no reason she could not have offered them at that time.
Lin’s documents that post-date her removal hearing included: (1) an
October 2009 evaluation of the 2007 Country Profile by Dr. Flora Sapio criticizing
the State Department’s methods of gathering information (in particular, relying on
sources that cannot be verified or trusted);9 (2) November 10, 2009 testimony of
human rights activists and officials before the Congressional Human Rights
Commission that, inter alia, forced sterilization and abortion continue to occur in
China under the one-child policy; and (3) an affidavit dated August 7, 2009 by
Rensu Yuan, a resident of Qinchuan Village, Guantou Town, Jianjiang County in
Fujian Province, stating that, upon Yuan’s removal to China in September 2008,
he was forcibly sterilized because he had two U.S.-born children.10
However, these three pieces of new evidence largely pertain to events that
happened before Lin’s hearing and do not indicate that, after her hearing,
9
With respect to the enforcement of the one-child policy against Chinese couples with
children born overseas, Dr. Sapio’s report suggested that the FPPFPC’s letters to the U.S.
Consulate General are inconsistent with a 1958 Chinese law that requires all children born
outside mainland China to be entered in the household registery within thirty days of their birth.
10
Additionally, Lin submitted her own affidavit stating that she had given birth to her
third child, a daughter, on April 14, 2010. On appeal, Lin does not raise a specific argument as
to the birth of her third child or argue that it increased her risk for persecution. Thus, Lin has
abandoned this issue. See
Sepulveda, 401 F.3d at 1228 n.2.
12
enforcement efforts against parents of U.S.-born children were stepped up in Lin’s
hometown. At most, this evidence shows generally that forced sterilizations
continue to occur in China.11 As such, we cannot say the BIA abused its discretion
in concluding that Lin’s new evidence did not show a material change in country
conditions warranting reopening.
PETITIONS DENIED.
11
The BIA stated that it was not persuaded that Dr. Sapio’s report was an expert opinion
on the reliability of State Department reports and cited recent published BIA decisions that State
Department documents are highly probative and usually the best source of information on foreign
nations. The BIA was within its discretion to continue to credit the 2007 Country Profile over
Dr. Sapio’s report.
13