Lin, Bao H. v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2226
BAO HUA LIN,
Petitioner,
v.
ALBERTO GONZALES,1
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
No. A78 382 935
____________
ARGUED JUNE 15, 2005—DECIDED JANUARY 23, 2006
____________
Before POSNER, COFFEY, and KANNE, Circuit Judges.
KANNE, Circuit Judge. While she was in proceedings to
be removed from the United States, Chinese national Bao
Hua Lin gave birth in Chicago to her third child. She
sought to reopen proceedings based on an expert’s affida-
vit suggesting that returning Chinese citizens with U.S.-
born children were not exempt from China’s one-child,
family planning policy. The Board of Immigration Ap-
peals denied Lin’s request because she offered no expla-
1
Pursuant to FED. R. APP. P. 43(c), we have substituted Alberto
Gonzales, the present Attorney General of the United States, for
his predecessor in office.
2 No. 04-2226
nation why the affidavit could not have been offered earlier.
We agree and deny the petition.
At her removal hearing in April 2002, Lin testified that
she and her husband came from Fujian province, where
they had a daughter and then a son. Their son was
born under circumstances that apparently violated fam-
ily planning rules. According to Lin, a family with a
daughter was permitted to have a second child once the
daughter reached the age of four, but she became preg-
nant again too soon. Fearing that government officials
would force her to abort her pregnancy, she hid at a rela-
tive’s home until she gave birth to her son. Later, she
claimed, family planning officials planned to have her
sterilized. She and her husband decided to flee, and they
hired “snakeheads” to smuggle them into the United States
(leaving behind the two children with her parents). Her
husband arrived first and she followed, arriving without
travel documents at Boston’s Logan Airport in September
2000. She was promptly detained and placed in removal
proceedings. Less than a year later, however, she gave birth
in Chicago to a daughter, and then applied for asylum,
withholding of removal, and relief under the Convention
Against Torture.
The immigration judge denied Lin’s application. He found
Lin not credible, partly because she had testified inconsis-
tently and partly because her husband and sisters in the
United States failed to appear at her hearing to corroborate
her testimony. The Board adopted and affirmed the IJ’s
order in December 2003.
Lin did not appeal that order, and instead in January
2004 filed with the Board a motion to reopen proceedings
based on new evidence purportedly confirming that she
would be forcibly sterilized if returned to China. She offered
the birth certificate of her U.S.-born child and an affidavit
from May 2003 by John Shields Aird, a retired U.S. Census
No. 04-2226 3
Bureau demographer, which described China’s family
planning rules for Chinese citizens with foreign-born
children. Aird’s affidavit (which had been prepared in
connection with a different asylum proceeding in New York)
included several statements from Chinese officials suggest-
ing that the one-child policy applies to Chinese nationals
living abroad.
The Board denied the motion to reopen because Lin’s
additional evidence was not new or otherwise unavailable
at the time of the removal hearing. The Board explained
that Lin had, at the hearing, already presented a “longer”
affidavit from Aird regarding China’s family planning
policy, and “the affidavit now being offered could have been
offered earlier as well.”
In her petition for review, Lin argues that the Board
erred in denying her motion to reopen by failing to ade-
quately consider Aird’s 2003 affidavit. She disputes the
Board’s conclusion that this affidavit is not “new” and
argues that it addresses a specific issue not covered in
Aird’s more generalized first affidavit—namely, the treat-
ment by Chinese family planning authorities of Chinese
citizens with foreign-born children. She also asserts,
somewhat dismissingly, that the affidavit was “facially
‘previously unavailable’ ” because it “did not exist at the
time of the Petitioner’s previous hearing.”
The BIA may reopen removal proceedings if the alien
presents new evidence that “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); see Simtion
v. Ashcroft, 393 F.3d 733, 737 (7th Cir. 2004). Further, a
motion to reopen should not be granted unless the evi-
dence presented “ ‘could not by the exercise of due dili-
gence have been discovered earlier. . . .’ ” Krougliak v. INS,
289 F.3d 457, 460 (7th Cir. 2002) (quoting Matter of Coelho,
20 I & N Dec. 464, 472 n.4 (BIA 1992)). The BIA has “broad
4 No. 04-2226
discretion” to deny a motion to reopen on grounds of new
evidence. INS v. Doherty, 502 U.S. 314, 323 (1992).
The Board perhaps sold short the significance of Aird’s
2003 affidavit by remarking that a “longer” version was
presented at the hearing. Unlike the earlier affidavit that
broadly surveyed China’s general family planning policy,
the 2003 affidavit focused on China’s policy toward parents
of U.S.-born children and specifically disputed the State
Department’s contention that children born to Chinese
citizens abroad are not counted under family planning
rules. Indeed, in three recent cases, our sister circuits
have overturned BIA decisions for failing to consider similar
affidavits submitted by Aird. See Yang v. Gonzales, 427
F.3d 1117, 1122 (8th Cir. 2005); Zheng v. Gonzales, 415
F.3d 955, 963 (8th Cir. 2005); Guo v. Ashcroft, 386 F.3d 556,
565 (3d Cir. 2004) (overturning denial of motion to reopen).
But Lin’s argument fails on other grounds. She has not
explained why Aird’s 2003 affidavit could not have been
submitted much earlier. Having a third child abroad, she
knew before her removal hearing in 2002 that the issues
addressed in the affidavit were critical. Most of the
sources that Aird relied upon in his 2003 affidavit date back
to the 1990s, so that information was available and reason-
ably discoverable at the time of the removal hearing, and
certainly by the time that the BIA rendered its final
decision in December 2003. See Haile v. Gonzales, 421 F.3d
493, 497 (7th Cir. 2005). Because Lin gave no reason for
delaying so long to submit Aird’s affidavit, the Board acted
within its discretion to deny the motion to reopen.
The petition for review is DENIED.
No. 04-2226 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-23-06