Filed: May 06, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-6-2008 Lin v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1181 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Lin v. Atty Gen USA" (2008). 2008 Decisions. Paper 1265. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1265 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-6-2008 Lin v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1181 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Lin v. Atty Gen USA" (2008). 2008 Decisions. Paper 1265. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1265 This decision is brought to you for free and open access by the Opinions of the U..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-6-2008
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1181
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Lin v. Atty Gen USA" (2008). 2008 Decisions. Paper 1265.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1265
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___
No. 07-1181
___________
BI CHAI LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A97 646 953)
Immigration Judge: Daniel A. Meisner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 1, 2008
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: May 6, 2008)
___________
OPINION
___________
PER CURIAM
Bi Chai Lin, a native and citizen of China, petitions for review of a final order of
the Board of Immigration Appeals (“BIA”), affirming the Immigration Judge’s (“IJ”)
decision denying asylum and related relief. We will deny the petition.
Lin, a native of Fujian Province, People’s Republic of China, entered the United
States without inspection on June 17, 2000. In October 2003, Lin was charged as being
removable for being present in the United States without having been admitted or paroled.
Lin conceded removability and applied for asylum, withholding of removal, relief under
the Convention Against Torture (“CAT”), and voluntary departure in alternative to
removal. Lin argued that she would be persecuted under the family planning policy in
China because of the two children she gave birth to in the United States, and because she
was pregnant with a third child. After a hearing in July 2005, the IJ denied relief, finding
that Lin had failed to meet her burden to establish a well-founded fear of future
persecution, and ordered Lin removed to China.1 The IJ granted the application for
voluntary departure. The BIA adopted and affirmed the IJ’s decision, agreeing that Lin
had “not demonstrated an objectively reasonable fear of persecution . . . .” A.R. 2. Lin’s
petition for review is now before the Court.2
As noted, Lin’s sole claim for relief from removal was based on her fear of future
1
The IJ also found that Lin failed to meet her burden for withholding of removal or
protection under the CAT.
2
Lin commenced this appeal by timely filing a “petition for review and Complaint for
Injunctive Relief and Declaratory Relief [pursuant to § 2241]” and a motion for a stay of
removal. On April 5, 2007, this Court denied the motion for a stay and granted the
Government’s motion to dismiss to the extent the petition sought relief under 28 U.S.C.
§ 2241 and injunctive relief. The Court construed the claims and arguments in the
petition to be in support of a petition for review, which is the petition we now consider.
2
persecution; thus, the question before this Court is whether she met her burden of
showing that her fear of sterilization was objectively reasonable.
We use a substantial evidence standard to review findings of whether an applicant
has a well-founded fear of future persecution. Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002). Under the substantial evidence standard, findings are upheld “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Zheng v. Gonzales,
417 F.3d 379, 381 (3d Cir. 2005).
In support of her claims for relief, Lin produced a letter from her mother stating
that if Lin is sent back to China, her mother worries that Lin would be sterilized, just as
Lin’s mother was in the 1980s. Lin also submitted identification information, verification
of her pregnancy, and the Fujian Province Family Planning Regulations.3 The record also
includes the State Department’s 2004 profile on asylum claims for China (“2004
Profile”). The IJ relied on the 2004 Profile, which stated that there had been no cases of
forced abortion or sterilization in Fujian province in the last ten years, and that the
population policy was enforced by social pressure and fines rather than forced
sterilization or abortion. A.R. 261-62. The IJ also noted that Lin had produced no
evidence that her U.S. citizen children could not remain in the United States. A.R. 264.
On appeal to the BIA, Lin argued only that the IJ applied the wrong standard in
3
As the IJ noted, Lin only submitted the odd-numbered pages of the translation of the
regulations. A.R. 210-15; 263.
3
determining that she had failed to establish a well-founded fear of persecution.4 The BIA
affirmed the IJ’s denial of asylum, mentioning specifically the 2004 Profile, and noting
that it had recently held in Matter of C-C-, 23 I&N Dec. 899 (BIA 2006) that the birth of
foreign-born children to Chinese nationals returning from abroad did not establish a prima
facie case for asylum. A.R. 2.
In her brief to this Court, Lin mentions in passing the holding of Cardoza-Fonseca,
and argues that the IJ’s and BIA’s decisions are wrong, because “a reasonable person in
Ms. Lin’s circumstances would fear persecution upon return to China because of her
violations of China’s coercive family planning policy.” Petitioner’s Brief at 10. The bulk
of her brief, however, argues that her claims are supported by facts presented in recent
cases in this Circuit and the Second and Eleventh Circuits, including an affidavit by Dr.
John Aird, the State Department’s 2005 Country Report, and 2003 documents from the
Changle City Family-Planning Administration and the Fujian Province Department of
Family-Planning Administration. These documents were not produced in Lin’s
proceedings before the IJ or the BIA.
Our review of the record is confined solely to the evidence that Lin presented to
the agency. 8 U.S.C. § 1252(b)(4); see Berishaj v. Ashcroft, 378 F.3d 314, 328-30 (3d
4
Although Lin’s brief to the BIA is less than clear, it appears that she was arguing that
the IJ failed to apply the holding of INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)
that an alien need not prove that it is more likely than not that she will be persecuted in
her home country.
4
Cir. 2004) (declining to take judicial notice of new country reports, and observing that
“[i]t is a salutary principle of administrative law review that the reviewing court act upon
a closed record.”); Sewak v. INS, 900 F.2d 667, 673 (3d Cir. 1990) (“Congress has
expressly limited our determination of petitions for review of orders of deportation solely
to the administrative record and the appropriately supported findings of fact made
below.”). Based on the evidence in the record below, we hold that the IJ did not err in
finding that Lin had not met her burden of showing a well-founded fear of future
persecution. Cf. Yu v. Attorney General,
513 F.3d 346, (3d Cir. 2008) (BIA decision
which found that latest State Department Country reports and 2004 Profile conflicted with
Aird affidavit was supported by substantial evidence).5
For the foregoing reasons, we will deny the petition for review.
5
We agree that as she failed to meet the standard for asylum, she likewise failed to
meet the higher burden for withholding of removal. We also agree that there is no
evidence in the record that Lin will be tortured upon her return to China.
5
