Filed: May 06, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1853 XUE YAN LIN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: January 29, 2009 Decided: May 6, 2009 Before MICHAEL, KING, and AGEE, Circuit Judges. Petition for review denied by unpublished per curiam opinion. ARGUED: Gary Jay Yerman, YERMAN & ASSOCIATES, L.L.C., New York, New York, for Petitioner. Jem Colleen Sponzo, UNITE
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1853 XUE YAN LIN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: January 29, 2009 Decided: May 6, 2009 Before MICHAEL, KING, and AGEE, Circuit Judges. Petition for review denied by unpublished per curiam opinion. ARGUED: Gary Jay Yerman, YERMAN & ASSOCIATES, L.L.C., New York, New York, for Petitioner. Jem Colleen Sponzo, UNITED..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1853
XUE YAN LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: January 29, 2009 Decided: May 6, 2009
Before MICHAEL, KING, and AGEE, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Gary Jay Yerman, YERMAN & ASSOCIATES, L.L.C., New York,
New York, for Petitioner. Jem Colleen Sponzo, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Civil Division, M. Jocelyn Lopez Wright, Assistant Director,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Petitioner Xue Yan Lin, a native and citizen of the
People’s Republic of China, petitions for review of the August
14, 2007 decision of the Board of Immigration Appeals (the
“BIA”), denying his motion to reopen immigration proceedings.
Lin maintains that changed country conditions in China, combined
with the birth of his two children in the United States,
justified a reopening — after approximately nine years — of his
application for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture (the “CAT”).
As explained below, we deny the petition for review.
I.
A.
After illegally entering the United States on October 27,
1991, Lin filed an application for asylum and withholding of
deportation, 1 asserting that he had experienced past persecution
and had a well-founded fear of future persecution in China,
predicated on his resistance to the country’s communist
leadership and his participation in the 1989 demonstrations at
Tiananmen Square. Lin was issued a notice to appear on February
1
After Lin filed his 1992 application for withholding of
deportation, applicable statutory changes replaced the term
“deportation” with a procedure designated as “removal.”
2
23, 1994, alleging that he was deportable for entering the
United States without inspection. An immigration judge (the
“IJ”), in a decision issued on February 21, 1997, denied Lin’s
application for relief and found him deportable (the “IJ
Decision”). 2 The IJ Decision granted Lin’s request to depart
voluntarily from the United States, however, and ordered that he
do so by May 21, 1997.
Lin appealed the IJ Decision to the BIA, which summarily
dismissed his appeal on February 17, 1998. Lin failed to seek
judicial review of the BIA’s rejection of his appeal, and
instead remained unlawfully in the United States. On February
25, 2003, Lin married a lawful permanent resident of this
country, and the couple now has two children (both United States
citizens): a son born in January 1997 (prior to the IJ’s
Decision), and a daughter born in August 2005.
B.
On March 16, 2007, more than nine years after the BIA’s
February 1998 dismissal of his appeal of the IJ Decision, Lin
submitted a motion to the BIA to reopen his deportation
proceedings, seeking to file a successive application for
asylum, withholding of removal, and protection under the CAT
2
The IJ Decision is found at J.A. 7-15. (Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed
by the parties in this appeal.)
3
(the “Motion to Reopen”). Lin asserted therein that his
immigration proceedings should be reopened by the BIA because
previously unavailable evidence established a change in country
conditions in China — particularly the increased enforcement of
family planning policies in the Fujian Province. Lin also
asserted he has a well-founded fear of persecution in China
because of the births of his two children, in violation of that
country’s family planning policies, and that, if he returns to
China, he will be subjected to involuntary sterilization.
In support of his Motion to Reopen, Lin submitted to the
BIA his affidavit; an affidavit from his father, who lives in
Fujian Province; an amended application for asylum and for
withholding of removal, and supporting affidavit; Lin’s and his
wife’s birth certificates; their marriage certificate; his
wife’s green card; birth certificates of their two children; and
family photographs. In addition to the foregoing personal
evidence, Lin submitted other materials in support of the Motion
to Reopen. 3
3
The supporting materials filed with the Motion to Reopen,
in addition to personal evidence spelled out above, included a
Policy Statement from China’s Administrative Office of the
National Population and Family Planning Committee; a 1999
question and answer sheet issued by the Changle City Family
Planning Office, addressing China’s family planning policy;
demographer John Aird's September 2002 testimony before the
Congressional-Executive Commission on China; the May 2003
Consular Information Sheet on China; the 2004, 2005, and 2006
(Continued)
4
By its decision of August 14, 2007, the BIA denied the
Motion to Reopen (the “BIA Decision”). 4 In so ruling, the BIA
decided that the Motion to Reopen was untimely because it was
filed more than ninety days after the BIA’s February 1998
dismissal of Lin’s appeal of the IJ Decision, and that the
motion did not otherwise fall under the statutory exception for
changed country conditions. The BIA Decision also concluded
that Lin had failed to make a prima facie showing of a well-
founded fear of persecution if he returned to China, because “he
has not shown a reasonable likelihood that he would be subject
to more than fines and loss of any government job.” BIA
Decision 2. Lin thereafter filed his petition for review with
this Court, and we possess jurisdiction pursuant to 8 U.S.C.
§ 1252.
Department of State Country Reports on China; a 1997 policy
letter issued by China’s Department of Public Security; the 2005
and 2006 annual reports of the Congressional-Executive
Commission on China; the December 2004 testimony of Harry Wu,
Executive Director of the Laogai Research Foundation, before the
House of Representatives Committee on International Relations;
and two newspaper articles reporting human rights violations
arising from enforcement of China’s family planning policy.
4
The BIA Decision is found at J.A. 162-63.
5
II.
We review for abuse of discretion the BIA’s denial of a
motion to reopen, but assess de novo the legal rulings made by
the BIA in connection therewith. INS v. Doherty, 502 U.S. 314,
323-24 (1992); Barry v. Gonzales,
445 F.3d 741, 744 (4th Cir.
2006). We may only reverse the BIA’s denial of a motion to
reopen if its ruling was arbitrary, capricious, or contrary to
law. Afanwi v. Mukasey,
526 F.3d 788, 794 (4th Cir. 2008)
(citing
Doherty, 502 U.S. at 323-24). A BIA decision on such a
motion “is reviewed with extreme deference, given that motions
to reopen ‘are disfavored . . . [because] every delay works to
the advantage of the deportable alien who wishes merely to
remain in the United States.’”
Barry, 445 F.3d at 744-45
(quoting Stewart v. INS,
181 F.3d 587, 595 (4th Cir. 1999)).
III.
A.
In this proceeding, Lin seeks review of the BIA Decision
denying his Motion to Reopen his application for asylum,
withholding of removal, and protection under the CAT. 5 The
5
Lin does not seek review of the BIA’s 1998 dismissal of
his appeal of the IJ Decision. Indeed, we lack jurisdiction to
assess the propriety of that dismissal because Lin failed to
timely petition for review. See 8 U.S.C. § 1252(b)(1)
(providing that petition for review be filed within thirty
(Continued)
6
provisions of § 240(c)(7) of the Immigration and Nationality Act
(the “INA”), 8 U.S.C. § 1229a(c)(7), apply to an alien who has
been ordered removed from this country and thereafter seeks to
reopen his removal proceedings. Generally, such an alien may
file a single motion to reopen and that motion must be filed
within ninety days of the entry of the final order of removal.
See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
These statutory time and numerical limitations are inapplicable,
however, and no time limit is imposed on a motion to reopen
“based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). 6 To proceed under the changed-country
conditions exception to the statutory time limit, an applicant
days); Stone v. INS, 514 U.S. 386, 405 (1995) (explaining such
thirty-day period is “jurisdictional in nature and must be
construed with strict fidelity”).
6
The changed-country conditions exception provided for in 8
U.S.C. § 1229a(c)(7)(C)(ii), and which, if applicable, results
in no time limit being applicable to a motion to reopen, states:
There is no time limit on the filing of a motion to
reopen if the basis of the motion is to apply for
[asylum] and is based on changed country conditions
arising in the country of nationality or the country
to which removal has been ordered, if [the supporting]
evidence is material and was not available and would
not have been discovered or presented at the previous
proceeding.
7
must present evidence of changed country conditions that “is
material and was not available and would not have been
discovered or presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
Furthermore, “[a] motion to reopen proceedings shall state the
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.” 8 C.F.R. § 1003.2(c)(1). In addition to
identifying the previously unavailable evidence, an applicant
seeking to utilize the changed-country conditions exception must
demonstrate his prima facie eligibility for asylum, that is, he
must demonstrate that the new evidence would likely alter the
result of his case. See INS v. Abudu, 485 U.S. 94, 104-05
(1998); Onyeme v. INS,
146 F.3d 227, 234 (4th Cir. 1998).
In this situation, we are obliged to reject Lin’s petition
for review if the BIA Decision denied his Motion to Reopen on
any valid ground. In that respect, the Supreme Court has
identified “at least” three grounds on which the BIA is entitled
to deny such a motion to reopen:
• The applicant’s failure to introduce “previously
unavailable, material evidence”;
• Failure of the applicant to establish “a prima
facie case for the underlying substantive relief
sought”; and
• A determination by the BIA that even if these two
requirements were satisfied, “the movant would
8
not be entitled to the discretionary grant of
relief.”
See Abudu, 485 U.S. at 104-05 (“There are at least three
independent grounds on which the BIA may deny a motion to
reopen.”); see also INS v. Doherty,
502 U.S. 314, 323 (1992)
(same); Zhang v. Mukasey,
543 F.3d 851, 854 (6th Cir. 2008)
(same);
Onyeme, 146 F.3d at 234 (same).
B.
As heretofore explained, the Motion to Reopen, filed by Lin
on March 16, 2007, was untimely under the applicable statute
unless it falls under the changed-country conditions exception,
where no time limit exists. Lin has acknowledged as much, but
maintains that the ninety-day time limit was excused because the
changed country conditions in China authorized the relief he
sought. The BIA Decision denied the Motion to Reopen by relying
on the first two of the three bases identified by the Supreme
Court — first, that Lin had failed to establish a change in
country conditions because he had only alleged a change in
personal conditions, and did not otherwise establish any changed
country conditions in China; and, second, that even if a change
in country conditions was shown, he had nonetheless failed to
make a prima facie showing of a well-founded fear of
persecution.
9
1.
On the question of whether the country conditions in China
had changed since the earlier proceedings, the BIA Decision
first found that to “the extent the motion is based on the
changes in personal circumstances” — the birth of Lin’s children
in the United States — such personal circumstances are
insufficient to support a motion to reopen. BIA Decision 2.
Second, the BIA Decision ruled that Lin had not persuasively
shown that the country conditions in China had changed, because
his evidence established only “a continued implementation of
policies rather than a material change in policies.” Id.
Predicated thereon, the BIA concluded that Lin had not
persuasively shown that his Motion to Reopen fell within an
exception to the otherwise applicable ninety-day statutory
deadline.
On the issue of changed personal circumstances, the BIA and
the Attorney General have mischaracterized the Motion to Reopen
as relying on such circumstances. In fact, the Motion to Reopen
specified to the contrary — specifically seeking to reopen “in
light of a change of conditions in China.” J.A. 29. Certainly,
the birth of Lin’s children is a significant factor with respect
to his Motion to Reopen, because the possibility that he might
suffer persecution arises therefrom. And, as we recently
recognized, changed personal circumstances arising in the United
10
States — such as the birth of children — do not alone authorize
a successive asylum application, and do not otherwise constitute
the changed country conditions justifying an exception to the
ninety-day statutory deadline. See Zheng v. Holder, No. 08-
1255, ___ F.3d ___ (4th Cir. Apr. 16, 2009). Notwithstanding
these observations, however, the BIA has not ruled that changed
personal circumstances — when a change in country conditions
otherwise exists — precludes it from granting a motion to
reopen. Rather, changes in personal circumstances, if
accompanied by sufficient evidence of changed country
conditions, may support an otherwise untimely motion to reopen.
See Chen v. Mukasey, 255 F. App’x 573, 577-78 (2d Cir. 2007)
(unpublished) (observing that “whether a petitioner with both
changed personal circumstances and changed country conditions .
. . can rely on those changed country conditions to reopen his
case, despite an untimely motion, when the underlying change in
personal circumstances postdated his order to depart,” is an
open question).
On the issue of changed country conditions, Lin’s petition
for review finds support in a recent decision of the Eleventh
Circuit, Li v. U.S. Attorney General, 488 F.3d 1371 (11th Cir.
2007). In Li, the Eleventh Circuit considered evidence
strikingly similar to that presented in this proceeding, and
concluded that the evidence was material and “clearly satisfied
11
the criteria for a motion to reopen.” 488 F.3d at 1375.
Nevertheless, whether Lin’s evidence was sufficient to establish
a change in country conditions is a close question. Compare
Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008) (drawing
“distinction between changes in the substance and in the
enforcement of China’s population control policy”), with Li,
488
F.3d 1371. Notably, the BIA does not contend that Lin’s
evidence was previously available; and such evidence appears to
postdate his initial IJ hearing. If we were to conclude that
Lin’s evidence established a change in country conditions,
however, his petition for review would yet be unsuccessful if
the BIA was correct in ruling that Lin had failed to make a
prima facie showing for the relief sought. Because, as
explained below, Lin did not make a prima facie showing, we need
not decide whether the Motion to Reopen sufficiently established
a change in country conditions.
2.
As explained above, Lin seeks asylum, withholding of
removal, and relief under the CAT, asserting that, if he is
returned to China, he will face persecution because he has
violated China’s family planning policy by having two children
in the United States. In order to be eligible for asylum, Lin
must establish refugee status based on either his past
persecution in China, or a well-founded fear of persecution
12
there, on a protected ground. See 8 C.F.R. § 1208.13(b).
Because Lin does not assert, in support of his Motion to Reopen,
that he suffered past persecution in China, 7 he must — in order
to be accorded relief — establish a well-founded fear of future
persecution on one of the statutorily-enumerated grounds. See
Lin-Jian v. Gonzales, 489 F.3d 182, 187 (4th Cir. 2007); 8
C.F.R. § 208.13(b).
A sterilization is deemed to be persecution, and “a person
who has a well founded fear that he or she will be forced to
undergo such a procedure . . . shall be deemed to have a well
founded fear of persecution on account of political opinion.” 8
U.S.C. § 1101(a)(42)(B). As we have explained, the “well-
founded fear of persecution” statutory mandate contains both
subjective and objective components. Ngarurih v. Ashcroft, 371
F.3d 182, 187 (4th Cir. 2004). To satisfy its subjective
7
In his initial proceedings before the IJ, Lin claimed that
he suffered past persecution in China as a result of his
political resistance and participation in the Tiananmen Square
demonstration. The IJ, however, found Lin’s testimony regarding
past persecution to be “replete with inconsistencies” and
lacking corroboration. IJ Decision 2. Because Lin did not seek
judicial review of this adverse credibility finding, it is not
now contestable. This finding cannot, however, be used to
discredit Lin’s testimony on all issues. See Lin-Jian v.
Gonzales, 489 F.3d 182, 191 (4th Cir. 2007) (explaining that
despite adverse credibility finding regarding petitioner’s
subjective fear of future persecution, IJ made no credibility
findings regarding petitioner’s past persecution, and therefore
IJ was “essentially silent” on petitioner’s credibility on that
issue).
13
component, an applicant must present “candid, credible, and
sincere testimony demonstrating a genuine fear of persecution.”
Id. In order to prevail on the objective component, the
applicant is obliged to offer “specific, concrete facts that
would lead a reasonable person in like circumstances to fear
persecution.”
Id. at 187-88.
In support of his Motion to Reopen, Lin presented both
personal and background evidence. Specifically, Lin’s affidavit
reported that friends and family in China had advised that “the
government has increased the use of forced abortions and
sterilization.” J.A. 50. Lin’s father, who lives in Fujian
Province, reported that, in the prior year, family planning laws
had been “more strictly carried out in [Changle City, Fujian
Province].”
Id. at 79. Lin’s father gave two examples in which
couples having more than two children were forcibly sterilized,
concluding that “[e]xamples like these are very common in my
hometown.”
Id. Lin’s father also reported that the village
committee in Changle City was aware that Lin had two children
and that “[i]f he returned to China, he had to undergo necessary
Family Planning procedures, such as sterilizations, unless he
became a U.S. citizen.”
Id. Lin also submitted objective
background evidence with his Motion to Reopen, such as
Department of State Country Reports on China, in order to
14
bolster his anecdotal evidence and establish an increase in
China’s enforcement measures.
The BIA Decision rejected Lin’s evidence, ruling that Lin
had failed to make a prima facie case of a well-founded fear of
persecution. The BIA recognized that “[Lin] reports he is known
to have two children,” but nevertheless concluded that “he has
not shown a reasonable likelihood that he would be subject to
more than fines and loss of any government job.” BIA Decision
2. The BIA then ruled that the fact that “local officials in
some areas of China have insisted upon sterilization does not
establish that [Lin] has a reasonable fear of being forcibly
sterilized, especially if his wife and children remain here.”
Id.
Put simply, the BIA did not err in concluding that Lin had
failed to carry his burden on the well-founded fear of
persecution question. The BIA did not reject Lin’s claim of
subjective fear of persecution, ruling only that Lin had failed
to satisfy the objective component of the statutory mandate. In
so ruling, the BIA relied on its own precedential decisions,
where it had already evaluated much of the background evidence
submitted and relied upon by Lin. See BIA Decision 2 (citing
Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); In re J-W-S-,
24 I. & N. Dec. 195 (BIA 2007); In re C-C-, 23 I. & N. Dec. 899
(BIA 2006)); see also Shao v. Mukasey,
546 F.3d 138 (2d Cir.
15
2008) (denying petitioners’ petitions for review in above
cases). Importantly, the BIA has observed that enforcement
efforts in Fujian Province have been “lax,” “uneven,” and
subject to “wide variation.” In re J-W-S-, 24 I. & N. Dec. at
193-94. Moreover, in ruling on Lin’s claim, the BIA relied on
precedent recognizing a “lack of national policy with respect to
foreign-born children,” and explaining that violators of that
policy are, at worst, subject to fines. BIA Decision 2 (citing
Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir. 2005)).
The BIA, having previously considered much of the evidence
submitted and relied on by Lin, was entitled to address such
evidence in a summary fashion. See Wang v. BIA, 437 F.3d 270,
275 (2d Cir. 2006) (observing BIA must not “expressly parse or
refute” each individual argument or piece of evidence,
particularly evidence “which the BIA is asked to consider time
and again”). Indeed, the BIA was entitled to find that the
personal evidence offered by Lin fails to satisfy his burden of
establishing the objective element of the fear of persecution
issue. Lin’s and his father’s affidavits provide anecdotal
evidence only, and they are otherwise uncorroborated. See Zheng
v. Mukasey,
546 F.3d 70, 72 (1st Cir. 2008) (“Absent
substantiation, self serving affidavits from petitioner and her
immediate family are of limited evidentiary value.”). In sum,
after carefully assessing this record, we cannot conclude that
16
the BIA’s determination that Lin failed to establish a well-
founded fear of persecution was either arbitrary, capricious, or
contrary to law. As a result, the BIA did not abuse its
discretion in denying Lin’s Motion to Reopen. 8
IV.
Pursuant to the foregoing, we deny Lin’s petition for
review of the BIA’s denial of his Motion to Reopen.
PETITION FOR REVIEW DENIED
8
The burden of proof for withholding of removal is greater
than for asylum. Thus if an applicant is ineligible for asylum,
he is necessarily ineligible for withholding of removal. See
Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). Because
Lin has failed to make a prima facie showing that he is eligible
for asylum, he is also unable to establish that he is eligible
for withholding of removal. Similarly, Lin’s claim for CAT
relief lacks merit because this claim also relies on the
probability of forcible sterilization. To be eligible for
relief under the CAT, Lin must demonstrate “that it is more
likely than not that he . . . would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). On
this record, we cannot conclude that the BIA erred in concluding
that Lin did not meet his burden of proof on the CAT claim.
17
