Ai Min Lin v. Attorney General United States , 571 F. App'x 84 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4012
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AI MIN LIN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-577-407)
Immigration Judge: Honorable Annie S. Garcy
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Submitted Under Third Circuit LAR 34.1(a)
On November 8, 2013
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Before: GREENAWAY, JR., VANASKIE, and ROTH, Circuit Judges.
(Opinion Filed: July 3, 2014)
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OPINION
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GREENAWAY, JR., Circuit Judge.
Ai Min Lin (“Lin”) seeks review of the September 26, 2012 final order rendered
by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ
Garcy”) order that Lin be removed to China, and denying Lin’s application for asylum,
withholding of removal, and protection under the United Nations Convention Against
Torture (“CAT”). For the reasons that follow, we will deny her petition for review.
I. Factual Background
Lin is a native and citizen of the People’s Republic of China, whose home village
is Gongyu, located in Guantou Township in the Fujian Province. Lin entered the United
States in 1992 without proper documentation. During her extended and unlawful stay,
she married Zheng Yong Hua, a Chinese citizen, in New York in 2007. Lin and her
husband have three children, two girls and one boy, all of whom were born in the United
States.
In 1997, Lin was placed into removal proceedings before the Newark Immigration
Court. Seeking relief from removal, Lin sought asylum, withholding of removal, and
CAT protection. She withdrew her application in 1998 upon accepting a grant of
voluntary departure. However, Lin did not voluntarily depart the United States, as was
required by the grant of voluntary departure. Instead, in 2006, she filed a motion to
reopen requesting yet another opportunity to seek asylum based on a claim of past
persecution and a fear of future persecution in China for having violated China’s family
planning policy. An immigration judge (“IJ Dogin”) granted Lin’s motion to reopen in
2007. Lin filed an amended application seeking asylum, withholding of removal, and
CAT protection with the immigration court on March 29, 2007.
On June 27, 2007, IJ Dogin denied Lin’s applications seeking relief and
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protection. Specifically, IJ Dogin found her claim of past persecution to be
unsubstantiated by the record and her claim of fear of future persecution to be
contradicted by determinations made in prior BIA decisions. On appeal, the BIA
sustained IJ Dogin’s determination regarding the past persecution claim, but remanded
for reconsideration of Lin’s fear of future persecution claim. The BIA also found that IJ
Dogin “failed to adequately consider [Lin’s] objective evidence . . . in light of the Third
Circuit’s recent decision,” Zheng v. Att’y Gen., 549 F.3d 260, 265-69 (3d Cir. 2008)
(recognizing that the BIA has a duty to explicitly consider all evidence of country
conditions in the record that materially bear on an asylum applicant’s claim). (App.
1868.) While not believing that the documents Lin submitted necessarily spoke to the
current country conditions (which would thereby implicate Zheng), the BIA found,
nonetheless, that “remand of proceedings [was] warranted.” Id.
On remand, Lin filed additional documentation and testified in support of her
claim of fear of future persecution. Lin testified that she fears forcible sterilization
because of her violation of the family planning policy requiring a person with one son to
be sterilized.
Following a hearing, IJ Garcy denied all relief, finding that Lin failed to
demonstrate that she held a well-founded fear of future persecution. While IJ Garcy
found Lin to be credible, and applauded her efforts to authenticate documents from
China, she ruled that Lin failed to show that her fear of sterilization was objectively
reasonable because the documentary evidence of record was insufficient to meet her
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burden. (App. 18.) Specifically, IJ Garcy found Lin’s evidence regarding the family
planning policy in her local township not to be entitled to much weight in considering a
change in country conditions. The documents from the village committee and township
family planning office had not been authenticated, nor were there other traditional
markers of credibility, such as signatures of officials who might speak to their
authenticity. All Lin provided was an affidavit from her mother certifying that she had
collected those documents from the town officials.
On September 26, 2012, the BIA affirmed IJ Garcy’s decision, and issued a final
order dismissing her appeal. The BIA found that IJ Garcy properly reviewed the
voluminous record and duly considered the evidence particular to Lin’s case, including
documents submitted from China. The BIA also affirmed IJ Garcy’s strong reliance on
publications issued by the Department of State, including the 2007 United States
Department of State Profile of Asylum Claims and Country Conditions for China (“2007
Profile”). The BIA agreed with IJ Garcy’s conclusion, based on the record evidence, that
Lin had failed to distinguish her case from other precedential BIA decisions concluding
that the use of physical coercion in carrying out China’s family planning policy is
“uncommon and unsanctioned by China’s national laws,” and that the policy is generally
enforced through incentives and economic-based policies. Matter of J-H-S-, 24 I.&N.
Dec. 196, 203 (B.I.A. 2007).
The instant petition for review was timely filed.
II. Jurisdiction and Standard of Review
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We have jurisdiction to review a final order of the BIA pursuant to 8 U.S.C. §
1252(a)(1). Zhu v. Att’y Gen., 744 F.3d 268, 271 (3d Cir. 2014). Our review is of the
BIA’s decision, although we also review the IJ’s decision to the extent that the BIA
adopted or deferred to the IJ’s analysis. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.
2005). Where, as in this instance, an alien seeking asylum does not allege past
persecution, she must establish that she has a well-founded fear of future persecution.
See Chavarria v. Gonzalez, 446 F.3d 508, 516 (3d Cir. 2006) (citing 8 U.S.C. §
1101(a)(42)).
To qualify for asylum, an applicant must demonstrate a subjective fear that
persecution will result upon her return to her home country, and that fear must be
“objectively reasonable in light of the circumstances of the alien’s case.” Huang v. Att’y
Gen., 620 F.3d 372, 381 (3d Cir. 2010). The term “persecution” includes “threats to life,
confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom,” but “does not encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993). Among other things, a well-founded fear of persecution must be based on both a
subjectively genuine fear of persecution and an objectively reasonable possibility of
persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). To establish
eligibility for withholding of removal, an applicant must demonstrate “a clear probability
of persecution.” See Fatin, 12 F.3d at 1238 (quoting INS v. Stevic, 467 U.S. 407, 430
(1984)).
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“So long as the BIA’s decision is supported by ‘reasonable, substantial, and
probative evidence on the record considered as a whole,’ we will not disturb the BIA’s
disposition of the case.” Chavarria, 446 F.3d at 515 (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)).
III. Analysis
Lin argues that she met her burden by demonstrating a well-founded fear of future
persecution, and the BIA’s denial of her applications for relief should be reversed and
remanded for a proper consideration of all of the evidence she has submitted. First, Lin
posits that the BIA erred in affirming IJ Garcy’s assignment of minimal weight to Lin’s
documents from China. Second, Lin contends that the BIA erred in affording greater
weight to the 2007 Profile. Lin argues that such errors led to a mistaken finding by the
BIA that Lin’s violations of the family planning policy do not give rise to a well-founded
fear of persecution. In support of her position, Lin submitted many documents, including
opinion letters from her Township, affidavits from her husband and mother, expert
statements about documents from China, as well as personal identification documents.
Asylum
Lin argues that several documents from her locality of Guantou Township should
have been given greater consideration, including: 1) “Notification with regard to
Tightening of this year’s Implementation of Birth Control Measures;” 2) a statement of
Guantou’s family planning policy from the People’s Government of Guantou Township
called “Notification with regard to the Issues on Stepping Up the Implementation of the
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Population and Family Planning Policy;” and 3) a Village Committee letter specifically
threatening Lin with “injections, induction, sterilization and monetary fines” as a
consequence of the birth of her two children and her then third pregnancy. (Appellant Br.
15.)
IJ Garcy explicitly discussed these documents and noted that, while “well-satisfied
that [Lin] has attempted, through her attorney, to authentic [sic] information about the
local birth policy of Guantou Town,” IJ Garcy nonetheless afforded these documents
minimal weight because they were unsigned and unsworn, obtained for the purpose of the
hearing, failed to reference a specific local birth policy or law, and the writers were
unavailable for cross-examination. (App. 19.) Lin argues that these documents do
reference specific birth policies or laws, and that the BIA’s and IJ’s requirements that the
documents must be signed and sworn in order to determine credibility, are contradicted
by submissions from the Department of Homeland Security (which also are not sworn
and signed). (Appellant Br. 17.)
“The BIA must provide sufficient analysis to demonstrate that it has truly
performed a full review of the record, including the evidence that may support the alien’s
asylum claim.” Huang, 620 F.3d at 388. Here, the BIA reviewed the above-mentioned
documents, and concluded that “the evidence establishes no uniform policy regarding the
implementation of the population control law with respect to children born outside
China.” (App. 5.) Further, the BIA approved IJ Garcy’s decision to afford limited
weight to the documents because of their unsigned and unsworn nature. IJ Garcy noted
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Lin’s attempts to authenticate the documents discussed above, but ultimately discounted
them in her assessment because of the lack of indicia of credibility.
The BIA’s and IJ’s evaluation of such documents is supported by our Circuit’s
precedents. See Chen v. Att’y Gen., 676 F.3d at 117 (finding that the IJ “properly
discounted” Petitioner’s “Village Committee document,” which “has not been
authenticated”). Unlike in Huang, where the BIA “discussed none of the evidence”
(thereby warranting vacation of the final order of removal), Huang, 620 F.3d at 388; here,
the BIA thoroughly discussed much of Lin’s evidence and explained why the evidence
did not support a well-founded fear of persecution. The BIA concluded that “even
accepting a violation of the family planning policy of the respondent’s home province,
the evidence of record does not establish that such a violation would be punished in a
way that would give rise to a well-founded fear of persecution.” (App. 5.)
Lin also presented an affidavit from her husband that averred that if Lin was
removed to China, the entire family would go with her back to Fujian Province. The BIA
properly gave no weight to that statement, because Lin’s husband was not made available
for cross-examination.
Lin next argues that “[t]hrough its exclusive reliance on the State Department’s
2007 Profile . . . the Board has created an impermissibly – and impossibly – high asylum
standard for Lin to meet . . . .” (Appellant Br. 19.) To that end, Lin questions the
reliance on a source that she posits is a “problematic source[]” because the findings are
“temper[ed] . . . based on diplomatic considerations” and much of the information comes
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from China which “has an obvious incentive to downplay [its] involvement in human
rights violations.” (Id. at 20-21.)
The BIA and IJ Garcy do indeed rely upon the 2007 Profile. The 2007 Profile,
however, does not create any sort of “standard,” as Lin contends. Rather, the 2007
Profile provides an overview on the country conditions of China, including a discussion
of forced sterilization in China and Fujian Province in particular. Chen v. Att’y Gen., 676
F.3d at 114-15. The BIA stated in its September 26, 2012 final order that it is appropriate
for IJ Garcy to rely on such State Department Reports and Profiles as the “best resource
for assessing country conditions.” (App. 5.) The BIA cited to this Circuit’s precedential
opinions in Chen and Zubeda for the proposition that such State Department reports are
reliable. Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) (stating that country reports are
the “most appropriate” and perhaps the “best resource” for determining country
conditions).
The BIA is entitled to weigh and evaluate the evidence in the manner it deems
appropriate. The BIA “may give whatever weight it deems appropriate to that evidence
in light of all of the other evidence presented.” Zhu v. Att’y Gen., 744 F.3d 268, 275 (3d
Cir. 2014). Indeed, such reliance upon the 2007 Profile is well-established in our Circuit.
See Chen v. Att’y Gen., 676 F.3d at 114 (affirming with approval the BIA’s
characterization of the 2007 Profile as “highly probative evidence”); see also Yu v. Att’y
Gen., 513 F.3d 346, 349 (3d Cir. 2008) (“This Court has repeatedly recognized that State
Department reports may constitute substantial evidence.”).
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As stated earlier, we review the BIA’s evidentiary rulings deferentially. Cheng v.
Att’y Gen., 623 F.3d 175, 182 (3d Cir. 2010). Under this deferential standard, we cannot
say that the BIA abused its discretion in affording greater weight to the 2007 Profile,
even as it considered all the evidence in the record including support for the criticisms of
the 2007 Profile that Lin raised. (App. 5.) (“We hold that the Profile, an official
published document of the [Department of State], is entitled to greater evidentiary weight
than the Sapio report.”).
After reviewing the evidence presented, we conclude that the evidence in the
record does not provide a sufficient basis for overturning the conclusions reached by the
BIA. See Chen v. Ashcroft, 376 F.3d at 223 (“[A]fter reviewing the record as a whole we
are convinced that the record evidence does not compel us to reach a conclusion contrary
to that of the IJ and the BIA.”). In the instant case, the BIA and IJ Garcy considered all
the evidence of country conditions presented in the record that materially bear on Lin’s
claims. Specifically, IJ Garcy noted that “[d]ocumentary evidence . . . has been carefully
considered in coming to a decision in this case.” (App. 20.) The BIA and IJ Garcy
considered Lin’s village documents, even if Lin disagrees with the weight accorded to
them. They considered the 2007 Profile and determined that it constituted reliable
evidence undermining Lin’s position. In addition, they concluded that there was a dearth
of sufficient evidence to show that Fujian Province’s family planning policy would be
applied to Lin despite the fact that her children were born in the United States. Cf.
Zheng, 549 F.3d at 268-69 (finding abuse of discretion where the BIA did not mention
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Petitioner’s affidavits, city letters, or other documents submitted by Petitioner).
Given that the BIA considered all of the evidence in the record, together with IJ
Garcy’s determinations and conclusions, and explained its reasons for weighing and
balancing the evidence as it did, we are not compelled to reach a conclusion contrary to
that of either the IJ nor BIA. Cf. Zhu, 744 F.3d at 279 (remanding where, in denying a
motion to reopen, the BIA failed to “meaningfully consider[] the evidence and arguments
[Petitioner] presented” and failed to explain why the BIA rejected certain evidence).
Therefore, it was permissible for the BIA to find that Lin failed to meet her burden of
proof. See, e.g., Yu, 513 F.3d at 349 (where “the BIA’s explanation of why it decided to
credit [State Department] reports” over evidence set forth by Petitioner was “well
reasoned,” it “necessarily follows that the BIA’s resolution of this matter was supported
by substantial evidence”).
Witholding of Removal and CAT Protection
“The threshold for asylum is lower than for protection under the withholding of
removal or CAT provisions . . . .” Id. Because Lin did not meet the standard for
obtaining asylum, she also failed to satisfy the higher burden of proof required for CAT
and withholding of removal under Section 241(b)(3) of the Act. Zubeda, 333 F.3d at
463; see also Chen v. Att’y Gen., 676 F.3d at 117. Therefore, Lin’s CAT and withholding
claims were properly denied.
III. Conclusion
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For the foregoing reasons, we will deny the petition for review and affirm the
decision of the BIA.
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