Zeng Yu Lin v. U.S. Attorney General , 475 F. App'x 736 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14685 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 25, 2012
________________________ JOHN LEY
CLERK
Agency No. A088-380-419
ZENG YU LIN,
JIAN PING GAO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 25, 2012)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Zeng Yu Lin and her husband Jian Ping Gao (“Petitioners”), citizens of the
People’s Republic of China, seek review of the Board of Immigration Appeals’s
(“BIA”) denial of their motion to reopen their removal proceedings. After review,
we deny the petition.
I. BACKGROUND
Petitioners’ original asylum application sought relief based on their
violation of China’s one-child policy. Specifically, Petitioners alleged a well-
founded fear that one of them would be forcibly sterilized if they returned to China
because they already had two U.S.-born children.
On December 7, 2009, the Immigration Judge (“IJ”) denied all requested
relief. The IJ concluded that Petitioners had not shown that their fear of forced
sterilization was objectively reasonable. In particular, the IJ found that most of
Lin’s evidence concerning China’s family planning policy was general in nature
and that her particularized evidence did not show that Chinese nationals who had
U.S.-born children and then returned to Petitioners’ hometowns were sterilized
against their will.
On November 3, 2010, the BIA agreed with the IJ’s findings and dismissed
Petitioners’ appeal. This Court denied the petition for review. Lin v. U.S. Att’y
Gen., 438 F. App’x 771 (11th Cir. 2011) (unpublished).
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On January 31, 2010, while Petitioners’ first appeal to this Court was still
pending, Petitioners filed a timely motion to reopen with the BIA. Petitioners’
motion to reopen (1) submitted additional evidence in support of their original
coercive family planning claim; and (2) alleged a new religious persecution claim
based on Lin’s recent conversion to Christianity and membership in the Church of
Jesus Christ of Latter Day Saints. On September 14, 2011, the BIA denied
Petitioners’ motion to reopen, concluding that some of Petitioners’ evidence pre-
dated their removal hearing and the remaining evidence did not show that
Petitioners were statutorily eligible for relief as to either claim. Petitioners filed
this petition for review.
II. DISCUSSION
An alien’s motion to reopen must “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.” Immigration and Nationality Act (“INA”)
§ 240B(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1). The
motion to reopen “shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
The BIA has the discretion to deny a motion to reopen because: (1) the alien
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failed to introduce evidence that was material and previously unavailable; (2) the
alien failed to establish a prima facie case of eligibility for asylum or withholding
of removal; or (3) the BIA determined that despite the alien’s statutory eligibility
for relief, he or she is not entitled to a favorable exercise of discretion. Li v. U.S.
Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir. 2007). Because motions to reopen
are disfavored, an alien seeking to reopen removal proceedings bears a “heavy
burden” to show that the new evidence would likely change the outcome of the
case.1 Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
Here, the BIA did not abuse its discretion when it denied Petitioners’
motion to reopen. With respect to Petitioners’ coercive family planning claim,
much of their evidence pre-dated the December 2009 removal hearing, and
Petitioners have not explained why they could not have presented this material at
the removal hearing. Petitioners’ evidence that did post-date their removal hearing
(recent news articles about forced sterilizations in China) did not pertain to
individuals who, like Lin and Gao, were parents of U.S.-born children or who
resided in Lin’s or Gao’s home county or village. As the BIA noted, Petitioners
essentially sought to “raise[ ] the same unsuccessful family planning petition” they
1
We review the denial of a motion to reopen for an abuse of discretion. Zhang v. U.S.
Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
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previously presented to the IJ and then to the BIA. The BIA, therefore, did not
abuse its discretion in concluding that this new evidence would not have changed
the result of Petitioners’ case.2
The BIA also did not abuse its discretion in determining that Lin’s new
evidence failed to establish a prima facie case of religious persecution. According
to the State Department’s 2007 International Religious Freedom Report,
Christianity is one of the five authorized religions in China, and the Chinese
government’s interference with Christian worship targets members of
unauthorized “house churches.” Similarly, Lin’s other evidence related to the
targeting of Christians who attend these unsanctioned “house churches.”3
Although Lin’s affidavit stated that she intends to practice Christianity in China, it
2
Petitioners cite several decisions that are materially distinguishable. See Zhang, 572
F.3d 1316; Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir. 2009); Li v. U.S. Att’y Gen., 488
F.3d 1371 (11th Cir. 2007). These cases involved untimely motions to reopen, such that the
petitioners were required to present evidence of changed country conditions to lift the time bar.
This Court concluded that the petitioners had presented such evidence, but did not reach the
merits of the motions to reopen. In contrast, Petitioners here filed a timely motion to reopen,
which the BIA denied on the merits.
3
Among other things, Lin submitted a January 15, 2011 letter from Lin’s aunt in China.
Lin’s aunt stated that she was baptized as a Christian thirty years ago and attended small church
meetings in the homes of fellow believers. At some point, the police discovered the “illegal
gathering” and took the congregants to the police station, where they beat and interrogated Lin’s
aunt and released her only after she signed a letter agreeing to never again attend an underground
church activity. We note, as the BIA did, that it is not clear from the letter when these events
occurred and whether this evidence was available and could have been presented at Petitioners’
removal hearing.
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did not state that she plans to attend one of the unsanctioned house churches or
that her religious beliefs would prevent her from attending a government-
sanctioned Christian church.
Additionally, Lin’s evidence does not establish that government interference
with Christian house churches in Fujian Province, where Lin would live, currently
is so widespread as to create a well-founded fear of persecution. The evidence
indicates that the Chinese government’s treatment of house church members varies
widely from region to region. Although the 2007 Religious Freedom Report
mentions that government officials closed some house churches in Fujian Province
in 2007, most of the reports in the record identify other regions of China as being
more dangerous for house church worshipers, and many of the articles Lin
submitted detailed events that occurred three to five years before Petitioners filed
their motion to reopen. Accordingly, the BIA did not abuse its discretion in
denying the motion to reopen as to Lin’s religious persecution claim.
PETITION DENIED.
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