Filed: May 21, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-21-2009 Yunzhen Lin v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-2572 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Yunzhen Lin v. Atty Gen USA" (2009). 2009 Decisions. Paper 1338. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1338 This decision is brought to you for free and open access by the
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-21-2009 Yunzhen Lin v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-2572 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Yunzhen Lin v. Atty Gen USA" (2009). 2009 Decisions. Paper 1338. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1338 This decision is brought to you for free and open access by the ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-21-2009
Yunzhen Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2572
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Yunzhen Lin v. Atty Gen USA" (2009). 2009 Decisions. Paper 1338.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1338
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 2009 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2572
___________
YUNZHEN 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. A99 427 615)
Immigration Judge: Honorable Frederick Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 20, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed May 21, 2009)
___________
OPINION
___________
PER CURIAM
Yunzhen Lin petitions for review of a Board of Immigration Appeals (“BIA”)
decision dismissing her appeal of the Immigration Judge’s (“IJ”) decision denying her
applications for relief from removal. We will deny the petition for review.
Lin is a native and citizen of China. She came to the United States in 1998 without
admission or parole. In 2005, the Immigration and Naturalization Service issued a notice
to appear charging that Lin was subject to removal for being present in the United States
without being admitted or paroled. Through counsel, Lin conceded her removability and
applied for asylum, withholding of removal, and relief under the Convention Against
Torture.
Lin testified that she married in 1999 and that she has two children who were born
in the United States in 2000 and 2005. Lin is from Fujian Province in China. She stated
that she left China because she saw her mother and neighbors persecuted by family
planning officials and she did not want to suffer in the same way. Lin further stated that,
if she went back to China, the Government would persecute her, and that, if she became
pregnant again, she would be forced to have an abortion and sterilized. Lin also stated
that she would be persecuted because of “this Christian stuff in America.” A.R. at 80.
In response to a question by the IJ, Lin clarified that her real fear in terms of her
children is what would happen if she were pregnant again with a third child. On cross-
examination, Lin also stated that persons in China were required to wait five years before
seeking permission to have a second child, and that her children were born five years
apart. Lin also clarified that she recently became a Christian to help her cope with the
stress of potentially being ordered to return to China. Lin testified that she travels to New
York City from New Jersey two to three times a month to go to church and listen, but that
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she had not joined the church. Lin testified on cross-examination that her husband is here
without legal status, and that he unsuccessfully applied for asylum based on his Christian
religion.
The IJ found Lin credible, but rejected her claim for asylum based on a theory that
she may be forced to have an abortion or be sterilized if she were to become pregnant
again. The IJ reviewed various legal decisions where aliens had sought asylum based on
China’s family planning policies. The IJ noted that the BIA had found in another case
that parents with children born more than four years apart would not face forced abortion
or sterilization, and that this Court had indicated in a non-precedential decision that it was
unwilling to extend asylum protection to any woman being removed to China who could
potentially become pregnant in the future. The IJ also stated that Lin could not prevail
based on the experiences of family members who had suffered a forced abortion or
sterilization.
The IJ also rejected Lin’s claim for asylum based on her exploration of the
Christian religion, which began while she was in removal proceedings. The IJ recognized
that persecution against unofficial Christian churches takes place in China, but stated that
he would have to speculate as to whether Lin would choose to become a practicing
Catholic, what church she would join, and whether she would face persecution. Based on
the IJ’s finding that Lin did not establish a well-founded fear of persecution for purposes
of asylum, the IJ also denied Lin’s application for withholding of removal. The IJ further
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concluded that Lin had not established that she would more likely than not be tortured if
removed to China.
The BIA dismissed Lin’s appeal. The BIA rejected Lin’s argument that she
established a well-founded fear of persecution based on evidence that her mother and
neighbor living in China had been forced to undergo abortions and sterilizations. The
BIA affirmed the IJ’s legal conclusions, noting that it had determined in other cases that
there is no policy of forced abortions or sterilizations of Chinese nationals returning with
multiple children born abroad, and that economic penalties did not rise to the level of
persecution. The BIA stated that the current record included evidence similar to that
considered in its other decisions, including the United States Department of State’s
Profile of Asylum Claims and Country Conditions for 2005. The BIA also decided that
Lin had not established that it is more likely than not that she would be persecuted or
tortured if returned to China. This petition for review followed.
Whether an asylum applicant has established a well-founded fear of future
persecution is a factual determination reviewed under the substantial evidence standard.
Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005). Under the substantial evidence
standard of review, factual determinations will be upheld unless a reasonable factfinder
would be compelled to conclude to the contrary. Abdulrahman v. Ashcroft,
330 F.3d
587, 597 (3d Cir. 2003).
Lin argues that she has a well-founded fear of persecution because she is a
4
practicing Christian and the background evidence shows that China suppresses such
practitioners from observing their faith. Lin points to the 2005 United States Department
of State Profile of Asylum Claims and Country Conditions, which provides that “the
Government seeks to restrict religious practice to government-sanctioned organizations
and registered places of worship and to prevent the rise of competing sources of authority
outside of the control of the Government and the Communist Party.” A.R. at 180. The
Profile, however, further provides that the Government does not interfere with worship at
registered Protestant and Catholic churches, as long as religious activities are confined to
registered buildings. The Profile reflects that government supervision of religious activity
in unofficial Christian churches is minimal in some places, but in other places, security
officials use threats, demolition of unregistered property, interrogation, arrest,
imprisonment, and at times severe physical abuse to target unregistered religious leaders
and followers. In addition, many “house” churches, which conduct prayer meetings or
worship services are often tolerated by local authorities as long as they remain small and
unobtrusive. In light of this evidence, and the fact that Lin had only recently begun
exploring the Christian religion, the record does not compel the conclusion that Lin has a
well-founded fear of persecution on account of her religion.
Lin further argues that the IJ and the BIA misconstrued her claim based on China’s
family planning policies. She states that she fears forced sterilization not only in the
event that she becomes pregnant again, but also based on the birth of her two children in
5
the United States. Lin argues that the matter should be remanded for proper consideration
of her claim. As noted by the Government, however, the IJ specifically asked Lin, “. . .
you don’t claim that you would be persecuted by going back just because you have two
children who are 5 years apart, do you? Your real fear in terms of just your children is
what would happen if you were pregnant again with a third child, is that what you’re
telling us?” A.R. at 81. Lin replied, “Yes.” A.R. at 81. Although Lin argued on appeal
to the BIA that she will face sterilization if she returns to China based on the birth of her
two children, Lin did not argue that the IJ misconstrued her claim. In any event, the BIA
addressed Lin’s claim more broadly, concluding that the background evidence did not
support a policy of forced abortions or sterilizations of Chinese nationals returning with
multiple children born abroad. A remand is not warranted on this basis.
Lin also contends that the BIA and IJ erred in applying a bright-line rule against
granting asylum where an individual has U.S. born children. Lin argues that the BIA did
not address the record evidence and provide an individualized review of her case. We
disagree. The BIA rejected Lin’s argument on appeal based on evidence that her mother
and neighbor had been subjected to forced abortions or sterilizations. The BIA also noted
that it had reviewed the record, and found that the record contained evidence similar to
that considered in its cited precedential decisions, including the 2005 Profile of Asylum
Claims and Country Conditions. Lin has not shown that the BIA did not undertake an
individualized determination in her case. See Kamara v. Attorney General, 420 F.3d 202,
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212 (3d Cir. 2005) (noting that the BIA’s decision need only contain sufficient indicia of
an individualized determination).1
Accordingly, we will deny the petition for review.
1
The BIA did not err in relying on its earlier decisions such as In re S-Y-G, 24 I.&N.
Dec. 247 (BIA 2007), where the BIA addressed the 2005 Profile, along with other
evidence, and rejected a claim of a well-founded fear of persecution based on the birth of
a Chinese alien’s two children in the United States. Lin’s background evidence primarily
consisted of the 2005 Profile and its appendices, China’s 2001 Population and Family
Planning Law and Fujian Province’s Regulations. We also note that our decision in
Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2008), is not to the contrary. In Zheng,
we vacated the BIA’s denial of a motion to reopen where the BIA did not discuss most of
the evidence submitted by the alien to show changed country conditions in China, and
that evidence had not been discussed in the case on which the BIA almost exclusively
relied.
Id. at 268-69.
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