Lin v. Barr ( 2019 )

United States Court of Appeals
For the First Circuit
No. 19-1216
LIU JIN LIN,
Petitioner,
v.
WILLIAM P. BARR,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Gary J. Yerman and The Yerman Group, LLC on brief, for
petitioner.
Sharon M. Clay, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Joseph H. Hunt,
Assistant Attorney General, Civil Division, and Nancy E. Friedman,
Senior Litigation Counsel, on brief, for respondent.
December 10, 2019
TORRUELLA, Circuit Judge. Liu Jin Lin ("Lin"), a native
and citizen of China, petitions for review of a Board of
Immigration Appeals ("BIA") order denying as untimely her motion
to reopen her earlier removal proceedings because of the
intersection between her recent conversion to Christianity and
changed country conditions in China regarding religious
persecution. Because the BIA did not abuse its discretion in
denying Lin's motion, we deny her petition for review.
I.
Lin was born in Changle City, Fujian Province, China.
She entered the United States on November 28, 2001 on a K-1 fiancée
visa, which authorized her to remain in the country for ninety
days. However, Lin overstayed her visa.
In the fall of 2003, Lin met her husband Wenqiang Weng,
whom she married on October 1, 2007, in Quincy, Massachusetts.
They have two sons together, one born in 2006 and the other in
2008. On December 22, 2013, Lin's husband converted to Christianity
and subsequently brought his family to the Greater Boston Christ's
Mandarin Church. Lin and her family moved to Sharon, Massachusetts,
and have since regularly attended the Chinese Church of Metro South
Boston. Through the church, Lin also participates in the
Sisterhood Bible study every Tuesday and joins the priest's wife
on Thursdays for prayer and Bible study. On November 12, 2017,
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Lin was baptized in the Christian faith. She now preaches her
faith to her sister at family meetings.
According to Lin, she fears that she will face
persecution if she were to return to China because she would only
attend unregistered, or underground, Christian churches.
II.
On December 3, 2007, the Department of Homeland Security
("DHS") served Lin with a Notice to Appear charging her as
removable under section 237(a)(1)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1127(a)(1)(B). After receiving the
Notice to Appear, Lin applied for asylum, withholding of removal,
and protection under the Convention Against Torture ("CAT"),
fearing persecution due to her violation of China's family planning
policies. On March 25, 2011, the Immigration Judge ("IJ") found
that Lin could be prevented from giving birth to future children
due to China's family planning policies and granted her application
for asylum. DHS appealed the IJ's decision to the BIA.
On September 27, 2012, the BIA sustained DHS's appeal,
vacated the IJ's decision, and ordered Lin removed to China. Lin
filed a petition for review with this Court that was denied on
July 23, 2013. See Liu Jin Lin v. Holder, 723 F.3d 300, 308
(1st Cir. 2013).
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Several years later, on May 4, 2018, Lin filed a motion
to reopen with the BIA based on her view that allegedly changed
country conditions in China would impact her given her recent
conversion to Christianity. The BIA denied Lin's motion to
reopen, finding that it was time-barred and that the evidence Lin
had submitted of changed country conditions since her removal
proceedings in 2011 did not support an exception to the time
limits. The BIA found that the evidence reflected that "although
there have been reports of the detention of some members, mostly
leaders, of underground, or 'house,' churches and harassment of
some church members," "China continues to allow the practice of
Christianity." Furthermore, "the restrictions on unregistered
religious groups differed in degree and varied significantly from
region to region," and these restrictions had persisted for many
years. The BIA also found that "the evidence indicates that
government interference in unregistered churches and harassment of
some underground church members has been a longstanding concern,
including at the time of [Lin]'s 2011 proceedings."
In addition, the BIA noted that Lin had the burden of
proof to establish prima facie eligibility for the underlying
substantive relief requested, yet she had failed to establish prima
facie eligibility for asylum, withholding of removal, or
protection under the CAT. With regards to her request for asylum
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and withholding of removal, the BIA found that "the evidence of
the repression of underground religious activities" was
insufficient to demonstrate that Lin had a "well-founded fear of
mistreatment amounting to persecution upon her return to China
based on her practice of Christianity." The BIA further found
that the evidence was also insufficient to demonstrate that "it
[was] more likely than not that [Lin] w[ould] be tortured in China
by, or with the acquiescence or willful blindness of, a public
official or person acting in an official capacity upon her return"
as required for eligibility under the CAT. Lin now petitions for
review of the BIA's order.
III.
Motions to reopen removal proceedings are disfavored
because they impinge upon "the compelling public interests in
finality and the expeditious processing of proceedings."
Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir. 2007)
(quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)).
Accordingly, "we review the BIA's denial of a motion to reopen
under a highly deferential abuse-of-discretion standard," Pineda
v. Whitaker, 908 F.3d 836, 840 (1st Cir. 2018), upholding the
decision "unless the complaining party can show that the BIA
committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational way," Raza, 484 F.3d at 127.
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In conducting this review, this Court "accept[s] the BIA's findings
of fact, 'as long as they are supported by substantial evidence,'
and . . . review[s] legal conclusions de novo." Marsadu v.
Holder, 748 F.3d 55, 57-58 (1st Cir. 2014) (quoting Smith v.
Holder, 627 F.3d 427, 433 (1st Cir. 2010)). "It is enough if the
agency fairly considers the points raised by the complainant and
articulates its decision in terms adequate to allow a reviewing
court to conclude that the agency has thought about the evidence
and the issues and reached a reasoned conclusion." Raza, 484 F.3d
at 128.
Generally, a petitioner may only file one motion to
reopen, and that motion must be filed within ninety days of the
date of entry of the final administrative order of removal.
See 8 U.S.C. § 1229a(c)(7)(C)(i). However, this limitation does
not apply to a motion to reopen to apply or reapply for asylum or
withholding of deportation "based on changed country conditions
arising in the country of nationality or the country to which
removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the
previous hearing." Id. § 1229a(c)(7)(C)(ii). In such a case, the
motion to reopen must (1) "adduce material evidence, previously
unavailable, showing changed country conditions" and (2) "make out
a prima facie case of eligibility for the [underlying] substantive
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relief." García-Aguilar v. Whitaker, 913 F.3d 215, 218
(1st Cir. 2019).
"To establish changed conditions, the evidence must
demonstrate 'the intensification or deterioration of country
conditions, not their mere continuation.'" Xin Qiang Liu v.
Lynch, 802 F.3d 69, 76 (1st Cir. 2015) (quoting Tawadrous v.
Holder, 565 F.3d 35, 38 (1st Cir. 2009)). To determine whether
conditions have intensified or deteriorated, the BIA "compares the
evidence of country conditions submitted with the motion to those
that existed at the time of the merits hearing." Haizem Liu v.
Holder, 727 F.3d 53, 57 (1st Cir. 2013) (alteration omitted)
(quoting In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007)). "Those
changes, however, must be material to the underlying substantive
relief . . . and the evidence tendered in support thereof must
have been unavailable during the prior proceedings." Raza,
484 F.3d at 127. Conclusory assertions are not sufficient: "the
evidence proffered in support of the motion must, at a bare
minimum, establish a prima facie case sufficient to ground a claim
of eligibility for the underlying substantive relief." Id.IV.
Lin argues that the BIA abused its discretion in
concluding that she had failed to establish that country conditions
in China had materially changed and thus denying her motion to
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reopen.1 She contends that the evidence she submitted clearly
establishes that conditions in China have materially deteriorated
for underground Christians since 2011. In her view, the BIA
reached the opposite conclusion because it merely performed a
"cursory" review of the evidence, referred to the documents "in
the aggregate," and "ignored" the Department of State 2009 Human
Rights Report on China, even though that report was "vital" to the
BIA's determination of changed conditions and had been cited in
her motion to reopen.
The BIA did not abuse its discretion. Contrary to Lin's
suggestions, "the BIA is under no obligation 'to parse an alien's
submissions one by one and cite book and verse when rejecting the
alien's conclusions.'" Nantume v. Barr, 931 F.3d 35, 40
(1st Cir. 2019) (quoting García-Aguilar, 913 F.3d at 221). And
here, the BIA did not perform a cursory review of the evidence.
1 Although Lin does not argue that her recent conversion to
Christianity constitutes a change in conditions for purposes of
her motion to reopen, we clarify that such "change in personal
circumstances alone does not meet the standard for the exception
to the time bar for changed country conditions." Rei Feng Wang
v. Lynch, 795 F.3d 283, 286-87 (1st Cir. 2015) ("Under the case
law, a change typically will be categorized as a change in personal
circumstances, as opposed to a change in country circumstances, if
the change is self-induced. . . . This prevents aliens from
repeatedly reopening their removal proceedings based on changes
that are within their control." (alteration in original) (internal
quotation marks omitted) (quoting Ming Chen v. Holder, 722 F.3d
63, 66 (1st Cir. 2013))).
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Instead, it explicitly identified and considered the evidence that
Lin had submitted in support of her motion to reopen, referencing
specific exhibits and pages in the record. It also took
administrative notice of the Department of State 2009 Human Rights
Report on China, which -- despite characterizing it as "vital" --
Lin had not included.
The evidence in the record, including several government
reports and articles from 2009 to 2017 outlining the conditions in
China and referencing the newly-enacted National Security Law and
its amendments pointed to by Lin, supports the BIA's finding. The
evidence shows that religious persecution has existed in China for
many years, predating Lin's original hearing in 2011, and has not
sufficiently increased since then to constitute a material change
in country conditions. Specifically, each of the reports from
2009 to 2017 reference the government's interference in
underground Christian churches in China, including harassment
against underground church members and the arrest, detention, and
imprisonment of church leaders even before the enactment of the
new National Security Law that Lin references in her brief. It
is well settled that the persistence of negative conditions,
regardless of how grave they are, is insufficient to establish
changed country conditions and, thus, warrant reopening.
See Fen Tjong Lie v. Holder, 729 F.3d 28, 30-31 (1st Cir. 2013);
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see also Sánchez-Romero v. Sessions, 865 F.3d 43, 46 (1st Cir.
2017) ("[G]rave conditions that remain grave do not equate to
intensification of conditions.").
Accordingly, the BIA did not abuse its discretion in
finding that Lin's motion to reopen removal proceedings was
time-barred.2
V.
For the reasons stated above, Lin's petition for review
is denied.
2 Because Lin has failed to establish a material change in country
conditions, there is no need "to reach the issue of whether she
has made out a prima facie case for relief." Haizem Liu, 727 F.3d
at 58.
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