Zhuang Ping Lin v. US Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11350 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 30, 2010
________________________ JOHN LEY
CLERK
Agency No. A079-399-989
ZHUANG PING LIN,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 30, 2010)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Zhuang Ping Lin (“Lin”), a native and citizen of China, petitions this Court
for review of the order of the Board of Immigration Appeals (“BIA”) denying his
motion to reopen removal proceedings on the basis of changed country conditions
in China. Lin argues that in his motion he submitted evidence (1) that was not
available at the time of his initial proceedings and (2) that proves Christians who
attend unregistered churches are now subject to considerably heightened religious
persecution. Accordingly, Lin contends that the BIA abused its discretion by
failing to conclude that he established changed country conditions in China. We
disagree.
Lin initially applied for asylum based on the Chinese government’s Family
Planning Policy, his previous violation of the policy, and his alleged assault on a
government official attempting to enforce the policy. In 2005, the immigration
judge (“IJ”) denied Lin’s application. Lin sought review from the BIA, which
denied his appeal. He then appealed to this Court, and we denied his petition. See
Lin v. U.S. Att’y Gen., 555 F.3d 1310 (11th Cir. 2009).
After the IJ ordered his deportation in 2005, Lin married a naturalized
United States citizen and had two children. Additionally, he discovered
Christianity and became a devout worshiper. Lin then filed a motion requesting
that the BIA reopen his removal proceedings on the basis of changed country
conditions due to the increased persecution of Christians in China. The BIA
denied his motion, and he asks this Court to review that decision.
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We review the BIA’s denial of a motion to reopen a removal proceeding for
abuse of discretion. Jaing v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009) (citation omitted). Motions to reopen removal proceedings are disfavored,
Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam) (citation
omitted), and judicial review is “limited to determining whether the BIA [abused
its discretion by acting] in an arbitrary or capricious manner.” Zhang v. U.S. Att’y
Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (per curiam) (citation omitted).
Ordinarily, an alien who is subject to a final order of removal and wishes to
file a motion to reopen must do so within 90 days of the final administrative
removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). That time
limit is inapplicable, however, if the alien can demonstrate “changed country
conditions arising in the country of nationality or the country to which removal
has been ordered, if such evidence is material and was not available and would not
have been discovered or presented at the previous proceeding.” 8 U.S.C. §
1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3). Demonstrating materiality is
a difficult task and requires the presentation of evidence that would likely change
the result in the case if the proceedings were reopened. Jaing, 568 F.3d at1256–57. “An alien cannot circumvent the requirement of changed country
conditions by demonstrating only a change in [his] personal circumstances.”
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Zhang, 572 F.3d at 1319.
The BIA’s opinions need not discuss every piece of evidence presented so
long as it “‘has given reasoned consideration to the petition, and made adequate
findings . . . .’” Morales v. INS., 208 F.3d 323, 328 (11th Cir. 2000) (quoting
Martinez v. INS., 970 F.2d 973, 976 (1st Cir. 1992)). Ultimately, the BIA must
“‘consider the issues raised and announce its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought and not merely
reacted.’” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (quoting
Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992)).
Here, the BIA considered the evidence presented and articulated its decision
in a manner that allows for appellate review, despite not engaging in extended
discussion. We conclude that the BIA did not abuse its discretion in finding that
Lin failed to present sufficient evidence to prove a material change in the
conditions for Christians in China.
The BIA provided a brief procedural history of Lin’s asylum proceedings
and recognized that changed country conditions formed the basis of his current
motion. Next, its decision succinctly and correctly identified the gravamen of
Lin’s claim, specifically that conditions for Christians and members of
unregistered churches in China have worsened and created changed circumstances
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within the country. Finally, it recognized the evidence Lin presented and then
provided its findings and conclusion.
At the outset of its analysis, the BIA correctly concluded that Lin’s
conversion to Christianity constituted a change in personal circumstances that did
not absolve him of the requirement to prove a change in country circumstances.
Lin does not challenge that determination. Therefore, the BIA appropriately
moved on to consider the evidence of the current religious climate in China. The
government-issued reports and other evidence painted a conflicting portrait that
acknowledged an increase in tolerance of Christianity in some respects, while at
the same time recognizing that there has been action taken against non-sanctioned
Christian leaders and participants. Cumulatively, this evidence lacks the
specificity and clarity to warrant analogy to recent cases in this Court involving
the increased enforcement of the Chinese Family Planning Policy. See, e.g., Jaing,
568 F.3d at 1257–58 (concluding that the BIA “badly misconstrued” the
appellant’s petition as being based on changed personal circumstances and
inexplicably ignored two affidavits detailing forced sterilizations in appellant’s
hometown and multiple country reports that recognized “unambiguously
corroborated incidents of coerced sterilization”).
Though it did not explicitly discuss each individual piece of evidence, the
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BIA concluded that the “arrest of leaders of underground churches and the
harassment of church members” does not demonstrate “that [Lin] will suffer
mistreatment amounting to persecution or torture upon his return to China based
on his practice of Christianity.” Such a conclusion in this case, reached after
acknowledging the conflicting evidence, cannot be considered arbitrary or
capricious. Accordingly, we conclude that the BIA did not abuse its discretion in
denying Lin’s motion to reopen.
PETITION DENIED.
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