Lin v. Atty Gen USA ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-25-2009
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3676
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3676
XUE MIE LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A73-050-043
(U.S. Immigration Judge: Honorable Donald Vincent Felise)
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 11, 2009
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed: June 25, 2009)
OPINION OF THE COURT
PER CURIAM.
Xue Mei Lin petitions for review of an order of the Board of Immigration Appeals
(BIA or Board), which denied her motion to reopen her asylum case. We will deny the
petition.
I.
Lin, a native and citizen of China, originally applied for asylum and other relief on
the grounds of political opinion relating to her participation in the student democratic
movement in her home country.1 The IJ found that Lin lied to the court and that even if
she were found credible, her experiences did not constitute persecution. The BIA
affirmed without opinion on August 30, 2002.
Years later, on April 27, 2007, Lin filed a motion to reopen and to file a
successive asylum application, claiming that she was an unwed mother of two children
born in the United States. She asserted that the motion was exempt from the ninety-day
time restriction on motions to reopen because her motion was based on changed country
conditions in China and based on facts not previously available to her. Specifically, Lin
contended that she would likely be persecuted as a violator of the one-child rule of the
family planning law, because enforcement of the law by forcible sterilization or abortion
was becoming more frequent in Fujian Province, her home province. Lin argued in her
1
Lin’s affidavit in support of her first asylum petition stated that she had one daughter
and that she was pregnant with a second child and feared that she would be forced to have
an abortion and possibly be sterilized if returned to China. A.R. 399. Her brief to the
BIA on direct appeal contains a similar claim. A.R. 179. However, the IJ apparently
heard no testimony concerning this claim, and did not comment on the claim.
2
motion to reopen that the United States Court of Appeals for the Second Circuit had
recognized new evidence showing a change in country conditions–that is, a new policy in
Fujian Province with regard to enforcement of birth control laws on couples whose
children were born abroad. Lin noted that reports had earlier shown that special
privileges were extended to returning overseas couples with children born abroad, A.R.
376-77 (1998 U.S. State Department Profile of Asylum Claims for China); but that such
was no longer the case. In support of her motion to reopen, Lin included an affidavit by
demographer Dr. John Aird, A.R. 49-70; a 2006 Fujian Province family planning notice,
stating foreign-born children of Chinese nationals would be counted the same as
Chinese-born children for family planning purposes, A.R. 71-76; a State Department
Consular Information Sheet from 2004, indicating that China does not recognize dual
citizenship, A.R. 77-91; the Family Planning Regulations of Fujian Province from
November 2000 along with Questions and Answers (Q&A), A.R. 92-114;2 as well as
numerous news articles, including some recounting forced abortions and/or sterilizations
in Shandong province, (see A.R. 47, listing background information submitted). Lin
also included documentation of her children’s births; a letter from a friend, recounting
how officials had recently forced her to have an abortion, A.R. 30-37; and a letter from
an older cousin indicating that she was forcibly sterilized and had to pay a large fine,
2
We note that this piece of evidence predates the IJ’s decision in Lin’s case, and that
Lin did not assert that this piece of evidence was unavailable at her previous hearing.
3
A. 39-45. Lin also sought to file a claim pursuant to the United Nations Convention
Against Torture (CAT), arguing that forcible sterilization and abortion are forms of
torture.3
On August 21, 2007, the BIA denied the motion. The Board found that Lin’s
motion lacked sufficient relevant material evidence to show changed country conditions,
and thus the motion was time-barred because it did not fall within any exceptions to the
time limitation.4 Lin filed a timely petition for review.5
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a
motion to reopen for an abuse of discretion. Liu v. Attorney General, 555 F.3d 145, 148
(3d Cir. 2009). In addition, we uphold the BIA’s factual determinations if they are
supported by substantial evidence. Id.
We reject Lin’s argument that her case is similar to Zheng v. Attorney General,
549 F.3d 260 (3d Cir. 2008), where we vacated the denial of motions to reopen based on
3
Lin did not raise the issue of relief under the CAT in her opening brief in this Court;
the issue is thus waived. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
4
In general, a motion to reopen must be filed no later than ninety days after the date of
the final administrative decision. See 8 C.F.R. § 1003.2(c)(2). The general rule is subject
to some exceptions, such as for changed country conditions, if proffered evidence is
material, was not available, and could not have been discovered or presented at the earlier
hearing. 8 C.F.R. § 1003.2(c)(3)(ii).
5
The petition for review was stayed pending the Court’s decisions in several similar
cases. Those cases have been decided, and the parties have filed supplemental briefs
addressing those decisions.
4
the BIA’s failure to discuss the evidentiary record. Here, the BIA discussed most of the
documentary evidence provided by Lin. Although Lin is correct that the BIA did not
specifically mention some of her submissions, this is not a case like Zheng where the BIA
did little more than quote passages from an earlier decision without addressing the
evidence contained in the record before it. Id. at 268-69.
First, the Board found that it had previously rejected some of the evidence Lin
provided with her motion; specifically, the Aird affidavit and other documentation cited
in Shou Yung Guo v. Gonzales, 463 109 (2d Cir. 2006). In Matter of S-Y-G-, 24 I. & N.
Dec. 247 (BIA 2007), which was the Board’s decision after the Second Circuit’s remand
in Shou Yung Guo, the BIA specifically found that Dr. Aird’s affidavit was not
persuasive in establishing a change in family planning policy or enforcement in Fujian
Province. Second, the Board here also specifically found that the 2006 Fujian Province
family planning notice Lin provided was very similar to a 2003 document that the Board
had previously rejected in Matter of S-Y-G-. The Board further specifically discussed
and rejected the letters Lin submitted because they lacked indicia of reliability. We do
not find that the Board abused its discretion in that regard.
Lin argues that the Board “completely ignored the State Department Consular
Information Sheet that returning children born in the U.S. with Chinese national parents
5
are to be treated equally as Chinese national children,” 6 and “failed to review other
credible news reports on the worsening country conditions and abuse of human rights in
the implementation of the birth control laws and policy of China in the record.” Pet.
Supp. Br. at 2. Although we have remanded where the Board has “fail[ed] to discuss
most of the evidentiary record,” see Zheng, 549 F.3d at 269; we do not require the Board
“to write an exegesis on every contention” raised by the movant, see Sevoian v. Ashcroft,
290 F.3d 166, 178 (3d Cir. 2002). The evidence that Lin says the Board ignored is not
necessarily material to Lin’s motion. The Consular Information Sheet stated that China
regards children of Chinese nationals to be Chinese citizens, and does not recognize any
citizenship the children may have acquired at birth, such as U.S. citizenship, see A.R. 78;
but the Consular Information Sheet says nothing about how such children are treated for
family planning law purposes in China. The articles Lin submitted concerning forced
abortions and sterilizations occurred in Shandong Province, not in Fujian province. The
BIA here examined the background evidence submitted, and determined, as it did in
Matter of S-Y-G-, that this evidence did not show a material change in family planning
policy in Fujian Province. Substantial evidence supports the BIA’s conclusions.
Finally, to the extent Lin’s motion to reopen included an alternative request to file
a successive asylum application, which the BIA did not address, we find that no remand is
6
The Government mistakenly states that Lin did not include this evidence with her
motion to reopen. Resp. Supp. Br. at 7.
6
necessary, as we held in Liu v. Attorney General, 555 F.3d 145 (3d Cir. 2009) that, after
completion of removal proceedings, any asylum application the alien files must be filed in
conjunction with a motion to reopen and must meet the time and numerical limitations on
motions to reopen. Id. at 152.
Accordingly, we will deny the petition for review.
7