Xiu Qin Lin v. Mukasey , 275 F. App'x 249 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1587
XIU QIN LIN,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A74-856-016)
Submitted: February 26, 2008 Decided: April 29, 2008
Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Petition granted and remanded by unpublished per curiam opinion.
Gary J. Yerman, New York, New York, for Petitioner. Peter D.
Keisler, Assistant Attorney General, Emily Anne Radford, Assistant
Director, Aviva L. Poczter, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Xiu Qin Lin, a native and citizen of the People’s
Republic of China, petitions for review of the Board of Immigration
Appeals’ (“Board”) order denying her second motion to reopen her
immigration proceedings. Because we find the Board abused its
discretion in denying the motion, we grant the petition for review,
vacate the Board’s order, and remand this case to the Board for
further proceedings.
After illegally entering the United States in October
1998, Lin filed an application for asylum, withholding of removal,
and protection under the Convention Against Torture, claiming
entitlement to relief because of her opposition to China’s family
planning policy. Although Lin was neither married nor pregnant at
the time of her application, Lin asserted she had a well-founded
fear of future persecution if she were removed to China because she
would be forced to undergo a gynecological examination.
In a decision that issued on January 14, 2000, the
Immigration Judge (“IJ”) denied Lin’s application. Lin appealed to
the Board, which affirmed the IJ’s decision without opinion on
September 30, 2002. Lin did not petition this court for review of
this decision. Instead, over three years later, Lin filed a motion
to reopen proceedings based on changed circumstances, which the
Board denied on June 13, 2006. Lin did not petition this court for
review of this order.
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Lin filed a second motion to reopen in November 2006,
arguing her immigration proceedings should be reopened because new
and previously unavailable evidence established a change in country
conditions; namely, increased enforcement of the family planning
policy. Lin also argued that a change in her personal
circumstances — giving birth to three children while living in the
United States — necessitated re-evaluation of her asylum
application because she was now in violation of China’s family
planning policy, and would be forcibly sterilized if she returned.
Lin further claimed, in the alternative, that she was entitled to
file a successive asylum application, despite being under a final
order of removal.
In support of her motion, Lin submitted the following
evidence: her personal, notarized affidavit, detailing
conversations with her father, who lives in the Fujian Province
(Lin’s home province), in which her father reported that several
women were forcibly sterilized after the birth of their second
children; an amended I-589 application and supporting affidavit;
Lin’s birth certificate; Lin’s husband’s legal permanent resident
card; Lin’s marriage certificate; and the birth certificates of
Lin’s three children. In addition to this personal evidence, Lin
also submitted objective documentary evidence to establish an
increase in the government’s enforcement measures. Among other
things, this evidence included the Policy Statement from the
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Administrative Office of the National Population and Family
Planning Committee (“Policy Statement”); a 1999 question and answer
sheet issued by the Changle City Family Planning Office addressing
the family planning policy; demographer John Aird’s September 2002
testimony before the Congressional-Executive Commission on China;
the May 2003 Consular Information Sheet on China; the 2004
Department of State Country Report on China; the 2005 Department of
State Country Report on China (“2005 Country Report”); Fujian
Province’s Population and Family Planning Regulation, issued in
2002; the 2005 annual report from the Congressional-Executive
Commission on China; and two newspaper articles reporting human
rights violations arising from enforcement of the family planning
policy. Lin argued that, considered together, these documents
established changed country conditions.
The Board denied Lin’s motion to reopen, concluding the
birth of Lin’s three children in the United States constituted a
change in personal circumstances, not a change in country
conditions. Relying upon the 2005 Country Report and taking
administrative notice of the 2006 State Department Report on
Country Conditions in China (“2006 Country Report”), the Board
opined Lin’s evidence established that country conditions were
“substantially similar” to those in existence when she was
initially denied relief. This petition for review timely followed.
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Lin’s petition for review is limited to the Board’s
decision denying her second motion to reopen. Lin failed to timely
petition for review of the Board’s September 30, 2002 order, which
affirmed and adopted the immigration judge’s denial of her requests
for asylum, withholding of removal, or protection under the
Convention Against Torture, or of the Board’s denial of her first
motion to reopen. Lin had thirty days from the date of those
orders to timely file a petition for review. See 8 U.S.C.
§ 1252(b)(1) (2000). This time period is “jurisdictional in nature
and must be construed with strict fidelity to [its] terms.” Stone
v. INS, 514 U.S. 386, 405 (1995). Thus, Lin’s petition for review
of the Board’s order denying her second motion to reopen, filed
June 22, 2007, cannot be considered timely as to the Board’s
previous orders.
An alien may file one motion to reopen within ninety days
of the entry of a final order of removal. 8 U.S.C.A.
§ 1229a(c)(7)(A), (C) (West 2005 & Supp. 2007); 8 C.F.R.
§ 1003.2(c)(2) (2006), invalidated on other grounds, William v.
Gonzales, 499 F.3d 329, 334 (4th Cir. 2007). The time and
numerical limitations do not apply if the basis for the motion to
reopen is to seek asylum or withholding of removal based on changed
country conditions. 8 U.S.C.A. § 1229a(c)(7)(C)(ii) (West 2005 &
Supp. 2007); 8 C.F.R. § 1003.2(c)(3)(ii) (2006). To proceed under
this exception, the applicant must present evidence of changed
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country conditions that “is material and was not available and
would not have been discovered or presented at the previous
proceeding.” 8 U.S.C.A. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). “A motion to reopen proceedings shall 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.” 8 C.F.R. § 1003.2(c)(1) (2006).
We review the Board’s denial of a motion to reopen for
abuse of discretion. 8 C.F.R. § 1003.2(a) (2006); INS v. Doherty,
502 U.S. 314, 323-24 (1992); Nibagwire v. Gonzales, 450 F.3d 153,
156 (4th Cir. 2006). The denial of a motion to reopen must be
reviewed with extreme deference, since immigration statutes do not
contemplate reopening and the applicable regulations disfavor such
motions. M.A. v. INS, 899 F.2d 304, 308 (4th Cir. 1990) (en banc).
This court reverses the Board’s denial of a motion to reopen only
if the denial is “arbitrary, capricious, or contrary to law.”
Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006) (internal
quotations and citation omitted).
The Board issued its final order of removal on September
30, 2002. Lin, however, did not file this second motion to reopen
until November 21, 2006, almost four years after the expiration of
the ninety-day deadline for filing such a motion. Thus, Lin’s
motion was untimely. Lin’s motion was also numerically barred, as
it was Lin’s second motion to reopen. 8 C.F.R. § 1003.2(c)(2).
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Thus, the central issue is whether the Board abused its discretion
in concluding Lin’s evidence of changed country conditions was
insufficient to support the untimely and numerically barred motion
to reopen.
In a recently published decision, the Eleventh Circuit
considered facts very similar to those at issue here, and reached
a conclusion contrary to the decision reached by the Board in Lin’s
case. Li v. U.S. Att’y Gen., 488 F.3d 1371 (11th Cir. 2007); but
see Wang v. BIA, 437 F.3d 270 (2d Cir. 2006). In Li, a Chinese
national from the Fujian Province sought to reopen her immigration
proceedings based on the birth of her two children1 and increased
family planning enforcement efforts in the Fujian Province. Id. at
1372-73. In support of her motion to reopen, Li submitted much of
the same evidence Lin presented to the Board here. Id. at 1373.
The only material difference in the evidence is that the applicant
in Li presented an affidavit from her mother reporting forced
abortions and sterilizations, whereas Lin detailed her father’s
reports of forced sterilizations in her own affidavit.2 Id.
1
It is unclear whether Li gave birth to her children before or
after her final order of removal was issued.
2
Lin’s evidence also differed from Li’s in that Li provided
the 2005 Consular Information Sheet, whereas Lin provided the 2003
version of that document. Li, 488 F.3d at 1373. However, both
documents contain the same relevant information: that except under
certain circumstances, the Chinese government considers children
born to Chinese nationals abroad to be Chinese citizens. Id.- 7 -
In granting Li’s petition for review, the Eleventh
Circuit set forth all the evidence Li presented in support of her
claim, and concluded it was unavailable at the time of her initial
asylum hearing. Id. at 1373, 1375. The Eleventh Circuit further
opined this was “evidence of a recent campaign of forced
sterilization in [Li’s] home village, evidence consistent with the
conclusion of recent government reports,” and that it “clearly
satisfied the criteria for a motion to reopen.” Id. at 1375.
We grant Lin’s petition for review. Save for the issue
of when the petitioner in Li gave birth to her children, the record
before us is almost identical to the record before the Eleventh
Circuit in Li. Lin’s evidence is arguably even more supportive of
the motion, as the Board here also took administrative notice of
the 2006 Country Report, which noted that, during 2005, “officials
in . . . Fujian Province reportedly forcibly sterilized women.”
Dep’t of State, 2006 Country Reports on Human Rights Practices in
China (2007), http://www.state.gov/g/drl/rls/hrrpt/2006/78771.htm.
This represents a significant departure from previous Department of
State Country Reports, which did not report any such enforcement
activity in the Fujian Province.
Although the Board properly considered Lin’s evidence of
changed country conditions, see Guo v. Gonzales, 463 F.3d 109, 115
(2d Cir. 2006), the Board’s decision finding Lin’s evidence
insufficient to establish a change in country conditions was
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contrary to law. Although reporting sources continue to reflect
the Chinese government’s policy prohibiting forcible
sterilizations, the 2006 Country Report, coupled with Lin’s
affidavit recounting her father’s assertions of several forced
sterilizations, evidence the type of change in country conditions
necessary to support reopening.3
Accordingly, we grant Lin’s petition for review, vacate
the Board’s order denying Lin’s motion to reopen, and remand this
case to the Board for further proceedings.4 We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
PETITION GRANTED AND REMANDED
3
Notably, though Lin’s original asylum application was
predicated on her opposition to China’s family planning policy, she
did not claim a fear of forcible sterilization because she had not,
at that time, violated the policy.
4
Because we grant Lin’s petition for review on this issue, we
do not address her alternative contention that the Board erred in
concluding she could not file a successive asylum application.
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