Filed: Oct. 28, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1821 WANRONG LIN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 22, 2011 Decided: October 28, 2011 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Petition for review denied by unpublished per curiam opinion. ARGUED: Joshua E. Bardavid, LAW OFFICE OF JOSHUA BARDAVID, New York, New York, for Petitioner. Kiley L. Kane
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1821 WANRONG LIN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 22, 2011 Decided: October 28, 2011 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Petition for review denied by unpublished per curiam opinion. ARGUED: Joshua E. Bardavid, LAW OFFICE OF JOSHUA BARDAVID, New York, New York, for Petitioner. Kiley L. Kane,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1821
WANRONG LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 22, 2011 Decided: October 28, 2011
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Joshua E. Bardavid, LAW OFFICE OF JOSHUA BARDAVID, New
York, New York, for Petitioner. Kiley L. Kane, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Theodore N. Cox, New York, New York, for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Jennifer
L. Lightbody, Senior Litigation Counsel, 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Unpublished opinions are not binding precedent in this circuit.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 Wanrong Lin seeks review of the decision of the
Board of Immigration Appeals (“BIA” or “Board”) denying his
motion to reopen. We deny the petition for review.
I.
Lin is a native of the People’s Republic of China who
entered the United States without inspection. After his arrival,
Lin married a U.S. citizen; they have three children who are
U.S. citizens. On January 3, 2007, the Department of Homeland
Security served Lin with a Notice to Appear, charging him as
removable under 8 U.S.C. § 1182(a)(6)(A)(i). During his removal
proceedings before an Immigration Judge (“IJ”), Lin filed an
application for asylum, withholding of removal, and relief
pursuant to the United Nations Convention Against Torture.
The IJ held a hearing on the merits of Lin’s asylum-related
applications on March 10, 2008, during which Lin was represented
by counsel and had the assistance of a Mandarin-language
interpreter. Lin testified that he feared persecution if he was
returned to China because his family size violated China’s
family planning policies. Lin submitted several identification
documents for himself, his wife, and his two daughters (Lin had
a third child, a boy, after his asylum application was
submitted). Lin failed, however, to submit evidence regarding
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country conditions and family planning policies in China.
Moreover, though he claimed to have evidence supporting his
father’s past persecution for family planning violations related
to his own birth, Lin did not submit such evidence to the IJ,
nor did Lin’s father (who lives in the U.S.) testify on his
behalf.
Lin’s applications were denied on March 10, 2008, and his
removal to China was ordered. The IJ found not credible Lin’s
testimony regarding his father’s arrest because of Lin’s birth
and Lin’s detention (while in fourth-grade) by authorities; the
testimony was inconsistent with his asylum application and
uncorroborated by any objective evidence. Accordingly, there was
no evidence of past persecution to support Lin’s asylum request.
With respect to Lin’s claim based on possible future
persecution (based, in turn, on the birth of his U.S.-born
children) the IJ found that Lin had “submitted absolutely no
documentation whatsoever” in support of his claim. J.A. 873. The
IJ asserted she was bound by prior precedential BIA decisions
that had denied claims similar to Lin’s, noting that the Board
had previously found that Chinese citizens from Fujian Province
(Lin’s Province) who have a second child outside of China are
penalized, if at all, by fines or economic penalties, which do
not generally support a claim of future persecution. (Lin’s
third child had not yet been born). The IJ also noted that the
3
Board found that enforcement of family planning in Fujian
Province has been “lax and uneven.” J.A. 874. The IJ found that
Lin had failed to meet his burden of proof for his asylum claim
and thus necessarily failed to meet the higher burden required
for withholding of removal. The IJ also denied Lin’s claim under
the Convention Against Torture because Lin had failed to
establish that it is more likely than not that he would be
tortured if removed to China, due to the lack of corroborating
evidence and Lin’s lack of credibility.
Lin filed an appeal with the BIA, which affirmed all of the
credibility and evidentiary findings of the IJ, as well as the
order of removal. Lin did not file a petition for review of the
Board’s decision with this court.
II.
On February 18, 2010, Lin filed a motion to reopen his
asylum claim with the BIA, arguing that changed country
conditions based on previously unavailable documents established
that he would face fines and forced sterilization if
repatriated. Lin asserted that he would be subject to China’s
family planning policies on return and that coercive practices
were widely used in Fujian Province to implement these policies.
Lin also criticized the BIA’s reliance on the Department of
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State Country Profiles and the BIA decisions that had relied on
those reports.
The BIA denied Lin’s motion to reopen. The denial noted
that Lin’s motion was not accompanied by an affidavit, and that
several of Lin’s documents had been previously submitted to the
Board, had not been properly authenticated, were incomplete, or
had previously been considered by the Board in precedential
decisions. The Board rejected Lin’s argument that because the
Board had granted a motion to reopen based on the same documents
in an unrelated case, the Board should do so in Lin’s case.
Finally, the Board rejected Lin’s argument that the Country
Profile the IJ had referenced was unreliable, finding Lin had
failed to demonstrate that his expert had sufficient
qualifications to make such a determination.
Lin now petitions this court to reverse the Board’s denial
of his motion to reopen. This court has jurisdiction pursuant to
8 U.S.C. § 1252(a)(1).
III.
Appeals from denials to reopen a case before the BIA are
reviewed for abuse of discretion. Barry v. Gonzales, 445 F.3d
741, 744 (4th Cir. 2006) (citing INS v. Doherty,
502 U.S. 314,
323-24 (1992)). “The BIA’s denial of a motion to reopen is
reviewed with extreme deference, given that motions to reopen
5
are disfavored [because] every delay works to the advantage of
the deportable alien who wishes merely to remain in the United
States.” Id. at 744-45. (internal quotation marks and citations
omitted). “Thus, we will reverse the BIA’s decision for abuse of
discretion only if it is arbitrary, capricious, or contrary to
law.”
Id. at 745 (internal quotation marks and citations
omitted).
An alien may file only one motion to reopen, which must be
filed within 90 days of the date of the final administrative
decision. 8 C.F.R. § 1003.2(c)(1). The motion must state new
facts that will be proven at a hearing if granted and must be
supported by affidavits or other evidentiary material. 8 C.F.R.
§ 1003.2(c)(1). Such evidence must be material and must not have
been available at the previous hearing. 8 C.F.R. § 1003.2(c)(1).
The Board has discretion to deny a motion to reopen even if the
moving party has made out a prima facie case for relief. 8
C.F.R. § 1003.2(a).
Because Lin’s motion to reopen his asylum claim relies on
evidence that was previously available, unauthenticated, or
insufficiently corroborated, we hold that the BIA did not abuse
its discretion in denying his motion to reopen. We therefore
deny Lin’s petition for review.
Lin’s primary contention is that the BIA abused its
discretion in failing to consider his individualized evidence.
6
In particular, he points to the BIA’s refusal to consider
documents that had not been properly authenticated, its reliance
on the 2007 State Department Profile, and its failure to address
the 2009 Report by the Congressional-Executive Commission on
China (“2009 Commission Report”) in any detail. Lin argues that
his supporting documents establish his prima facie eligibility
for asylum based on changed country conditions, pointing in
particular to the 2009 Commission Report and a Village
Certificate, which he claims establishes that he is likely to
face sterilization or the imposition of sanctions if returned to
China. We hold that these claims, even if true, do not show that
the BIA’s decision met the “arbitrary, capricious, or contrary
to law” standard. Barry, 445 F.3d at 744.
With respect to the issue of authentication, Lin argues
that the BIA erred in dismissing foreign documents “solely
because” they were not authenticated pursuant to regulation and
ignored other authenticating evidence in the record. Br. of Pet.
32. However, in dismissing the Village Certificate and other
foreign documents, the BIA cited both the regulation as well as
BIA case law that specifically permits alternative means of
authentication. In his motion to reopen, Lin noted that “there
is no question as to the documents’ authenticity because they
are published on the Chinese government’s official websites and
are available to public access.” J.A. 194. Yet, as Respondent
7
points out, Lin does not specify the documents to which he is
referring and fails to provide a URL.
In his petition to this court, Lin contends that he has
authenticated the Village Certificate by way of the Refugee
Review Tribunal Research Response (“Tribunal Document”). J.A. 9-
22. This argument was not in Lin’s motion to reopen, and the
document was only included in a packet of materials submitted
after his motion was filed; furthermore it does not appear to
support his claim, as the document expressly states that it is
not to be cited to in any document and is not “conclusive as to
the merit of any particular claim to refugee status or asylum.”
J.A. 9.
In the alternative, Lin appears to argue that the BIA
should have provided him with an opportunity to authenticate the
documents. While the opportunity to authenticate documents
should not be dismissed lightly, when an individual seeks to
reopen an asylum claim that has already been denied he bears the
burden of showing materially changed conditions. See Qin Wen
Zheng v. Gonzales, 500 F.3d 143, 148-49 (2d Cir. 2007) (holding
that BIA did not abuse its discretion by declining to consider
an unauthenticated document submitted with a motion to reopen to
show changed country conditions); In re S-Y-G, 24 I&N Dec. 247,
251 n.2 (BIA 2007) (assuming authenticity of Petitioner’s
evidence, but emphasizing that movants need to demonstrate the
8
authenticity of their evidence). Here, Lin did not provide an
affidavit with his motion that could have explained how he
acquired the documents and any efforts made to authenticate
them. The BIA found the lack of a sworn statement from Lin to be
significant and we discern no abuse of discretion in that
determination. Cf. Chen v. Attorney General, __ F.3d __ (3d Cir.
2011), No. 09-3459, 2011 WL 923353 (3d Cir. Mar. 18, 2011)
(refusing to find BIA abused its discretion in dismissing
village notice stating petitioner faced forcible sterilization
if returned as unauthenticated, despite credible testimony from
petitioner’s mother on how she obtained the document).
Nor did the BIA abuse its discretion in relying on the 2007
State Department Profile and in rejecting the 2009 Commission
Report as establishing changed country conditions. Lin argues
that the BIA relied “exclusively on the 2007 Profile to the
exclusion of the evidence” offered by Lin. Br. of Pet. 38. In
its decision, the BIA made note of the 2009 Commission Report
among the many other exhibits submitted by Lin, but noted that
the “evidence indicates that social compensation fees, job loss
or demotion, loss of promotion opportunity, expulsion from the
party, destruction of property, and other administrative
punishments are used to enforce the family planning policy.”
J.A. 4. While the 2009 Commission Report underscores the range
of difficulties encountered by those who violate family planning
9
policies in China, it is unclear whether the report, without
more, supports a claim that country conditions in Fujian
Province have materially changed from the time of the BIA’s 2009
decision in Lin’s case, particularly in light of the long line
of cases that have addressed this issue and found it to be
worthy of individualized determinations. Compare Li Fang Lin v.
Mukasey, 517 F.3d 685, 688 (4th Cir. 2008) (noting that Fujian
Province “‘has been known for being a place where the [one-
child] policy has been enforced with special vigor’” and
remanding on direct appeal), with Matter of J-W-S, 24 I&N Dec.
196, 193 (BIA 2007) (noting that enforcement of the policy in
Fujian has been described as “‘lax’” or “‘uneven’” in sustaining
DHS appeal of IJ’s grant of asylum). See also Shao v. Mukasey,
546 F.3d 138, 142 (2d Cir. 2008) (affirming BIA approach of
“case-by-case review”). The general conclusions of the 2009
Commission Report are insufficient to demonstrate the likelihood
of enforcement against Lin specifically.
Moreover, to the extent that the 2009 Commission Report
suggests that conditions have changed in Fujian, Lin fails to
show how such changes would affect him. The language of the 2009
Commission Report focuses on women in Fujian Province. As
Respondent points out, Lin is male, and he has failed to provide
any evidence to show how or why enforcement against women would
affect him – he has not provided, for example, an affidavit
10
testifying that he intends to bring his wife and children, all
U.S. citizens, with him when he returns.
Lin also argues that he is likely to face fines that amount
to economic persecution and potentially even imprisonment if
returned and that such a threat constitutes changed country
conditions. Br. of Pet. 30. However, Lin’s failure to provide
documentation of his financial situation makes it difficult to
evaluate how such a threat might affect him, and thus the BIA’s
refusal to find that Lin faced a threat of economic deprivation
was not an abuse of discretion. See Matter of T-Z, 24 I&N Dec.
163 (BIA 2007) (showing of economic sanctions does not amount to
persecution where record fails to provide evidence of movant’s
financial situation).
IV.
The BIA considered the evidence presented by Lin and
determined that it failed to carry sufficient weight, was
insufficiently authenticated, or was duplicative. The BIA’s
exercise of discretion in discounting the 2009 Commission Report
and continuing to rely on the State Department Country Profiles
and its precedential decisions does not rise to the level of
abuse required by law for reversal. Accordingly, the petition
for review is denied.
PETITION FOR REVIEW DENIED
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