Wen Lin v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 12, 2007
No. 06-14218 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-007-523
WEN LIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 12, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Wen Lin, a native and citizen of China, petitions this Court for review of an
order from the Board of Immigration Appeals denying her motion to reconsider its
previous order dismissing her appeal and affirming the Immigration Judge’s denial
of asylum, withholding of removal, and relief under the United Nations
Convention Against Torture. Because Lin has failed to show that the BIA made
any errors of fact or law, we deny her petition.
On September 23, 2002, Lin entered the United States by airplane without
proper documentation. That same day the Department of Homeland Security
issued her a notice to appear, alleging that she was subject to removal under INA §
212(a)(7)(A)(i)(I) as an alien seeking entry into the United States without a valid
entry document. The DHS further alleged that Lin’s status as a minor without any
visible means of support made it likely that she would become a public charge.
Lin conceded removability and applied for asylum, withholding of removal,
and CAT relief based on her claims of religious persecution. Lin asserted that she
had been persecuted in China because of her religious beliefs and activities, and
she feared that if she returned to China she would be jailed or tortured, or both.
Lin maintains that she was beaten and briefly jailed after she and some of her
friends attempted to stop Chinese officials from tearing down their church
meetinghouse. According to Lin, she was released after she promised not to
participate in any more non-state-sponsored religious activities. But Lin stated that
she began organizing non-state-sponsored religious activities soon after her
2
release, and consequently, Chinese officials sought to arrest her again. Instead of
waiting for state authorities to incarcerate her, Lin decided to flee China for the
United States, traveling through Laos, Thailand, an “unknown” South American
country, and Venezuela before flying into Miami, Florida, where she was
discovered by DHS officers.
At an August 2004 hearing, an IJ denied Lin’s asylum application and
entered an order finding her removable under the INA. In his order, the IJ outlines
numerous deficiencies in Lin’s evidence. Those deficiencies included: (1) material
inconsistencies between Lin’s in-court testimony, her statements to DHS officers,
and her asylum application; (2) Lin’s vague and inadequate explanation of how the
Chinese government learned of her religious activities and why they sought to
punish her for those activities; (3) Lin’s implausible account of how she acquired
the funds necessary to travel to the United States; (4) Lin’s failure to explain why
she did not remember the name of one of the countries she had traveled through en
route to the United States; (5) Lin’s failure to apply for asylum in any of those
countries; (6) Lin’s use of a forged Taiwanese passport to travel from Venezuela to
Miami; (7) the fact that a letter from the director of Lin’s Catholic Parish did not
corroborate in any way Lin’s assertion that the Chinese government imprisoned
and tortured her after she allegedly tried to stop Chinese authorities from
destroying a Church building; (8) Lin’s failure to authenticate a purported notice
3
from the Chinese government ordering Lin to surrender to the authorities because
of her religious activities; and (9) the fact that Lin’s parents still live in China and
have not been persecuted by the Chinese government since Lin’s departure. Based
on those inconsistencies and implausibilities, the IJ denied Lin’s application for
asylum and ordered her removal.
In January 2006, Lin appealed the IJ’s decision to the BIA, and the BIA
dismissed her appeal for substantially the same reasons articulated by the IJ. In
February 2006, Lin filed a motion for the BIA to reconsider its decision, but the
BIA denied that motion in May 2006. In denying that motion, the BIA issued a
brief written order explaining that Lin had not established that its first order
contained an error of fact or law and further noted that Lin had not offered any
additional arguments that would justify reconsideration of the its previous decision.
On appeal, Lin contends that the BIA abused its discretion in denying her
motion to reconsider. Specifically, Lin argues that the record does not support the
BIA’s adverse credibility findings and that the BIA erred by not “meaningfully
explaining” why it would not reconsider appeal. The government counters that the
BIA was correct to deny Lin’s motion for reconsideration because her motion did
not raise any new issues of law or fact that were not addressed by the BIA’s first
order.
We review the BIA’s denial of a motion to reconsider for abuse of
4
discretion. Assa’ad v. United States Attorney Gen., 332 F.3d 1321, 1341 (11th
Cir. 2003). We limit our review to determining (1) whether the agency has
exercised its administrative discretion and (2) whether that exercise was arbitrary
or capricious. Abdi v. United States Attorney Gen., 430 F.3d 1148 (11th Cir.
2005).1
A petitioner’s motion to reconsider “shall state the reasons for the motion by
specifying the errors of fact or law in the prior [BIA] decision and shall be
supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). “A motion to
reconsider asserts that at the time of the [BIA]’s previous decision an error was
made.” Matter of Cerna, 20 I. & N. Dec. 399, 402 (BIA 1991). When the BIA
reconsiders one of its prior decisions, it takes itself “back in time and consider[s]
the case as though a decision in the case on the record . . . had never been entered.”
Id. However, “[a] motion that merely republishes the reasons that had failed to
convince the tribunal in the first place gives the tribunal no reason to change its
mind.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (persuasive
authority). Therefore, merely reiterating arguments previously presented to the
BIA does not constitute “specifying errors of fact or law” as required for a
1
Because Lin has not argued to us that the BIA erred in denying her motion to reopen, she
has waived the issue. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12 (11th Cir. 2001) (stating
that issues not argued in the initial brief on appeal are deemed abandoned). Therefore, we will not
address Lin’s motion to reopen and will focus solely on her motion to reconsider.
5
successful motion to reconsider. 8 C.F.R. § 1003.2(b)(1).
Here, Lin’s motion to reconsider merely reiterated the arguments she raised
in her initial appeal to the BIA. For instance, in her motion to reconsider she
disputed the IJ’s findings that the letter from her parishioner did not support her
asylum application, and she rejected the IJ’s finding that there were inconsistencies
between her in-court testimony, her asylum application, and her statements to DHS
officers. The BIA considered but was not persuaded by those arguments in Lin’s
original appeal. A simple recitation of those rejected arguments gave the BIA no
reason to reconsider its prior decision. See 8 C.F.R. § 1003.2(b)(1); Ahmed, 388
F.3d at 249. Further, there is no requirement that the BIA provide a detailed
explanation of why it chose to deny Lin’s motion for reconsideration, especially
where Lin’s motion did not include any new legal arguments. Accordingly, the
BIA did not abuse its discretion in denying Lin’s motion to reconsider.
PETITION DENIED.
6