Mei Mei Lin v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4589
___________
MEI MEI LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073 575 835)
Immigration Judge: Honorable Donald V. Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 20, 2012
Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges
(Opinion filed June 26, 2012)
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OPINION
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PER CURIAM
Mei Mei Lin, a native and citizen of China, petitions for review of an order of the
Board of Immigration Appeals (“BIA” or “Board”), which denied her motion to reopen
removal proceedings. We will deny the petition for review.
Lin entered the United States illegally in 1994. She applied for asylum and related
relief, pursuing a claim that she had been subject to a forced abortion. The Immigration
Judge found her incredible, found that her application was frivolous, and denied relief.
The BIA affirmed on December 10, 2002. In January 2003, Lin filed a motion to reopen,
asking that proceedings be reopened because she was pregnant with a second U.S.-citizen
child. In a decision dated July 15, 2003, the BIA denied the motion, finding that the
submitted documentation was “insufficient to establish that a Chinese national becomes
subject to punitive birth control measures such as coerced sterilization if returning with
children born outside of China.”
Lin filed a second motion to reopen on May 16, 2011, stating that she would be
persecuted if she returned to China because she now practices Falun Gong. Lin argued
that her motion was not subject to numerical and time limits because it was based on
changed country conditions. With her motion, Lin included a new asylum application,
her affidavit, a marriage certificate, birth certificates for her children, photographs
purporting to show her practicing Falun Gong, a letter from her mother, a Resident
Committee notice, a 2007 asylum profile report from the State Department, and various
media reports from 2011 concerning the failed “Jasmine Revolution.” The BIA found
that: (1) her affidavit was speculative and not based on personal knowledge; (2) the letter
from her mother was unsworn, speculative, and did not establish that the treatment Lin
would face in China would amount to persecution; and (3) the notice from Changle City
Ying Qian Jie Dao Ying Qian Community Resident Committee was unauthenticated and
2
did not specify how Lin would be treated if she failed to comply with its summons.1 The
BIA found that her evidence was not sufficient to show that treatment of Falun Gong
practitioners in China had materially changed, nor that the Chinese government had or
would become aware of her Falun Gong practice and specifically target her for
persecution. The BIA also declined to exercise its sua sponte authority to reopen as Lin’s
situation was not “exceptional.” Lin filed a timely, counseled petition for review.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). We review the BIA’s
denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562
(3d Cir. 2004). Under this deferential standard of review, we will not disturb the Board’s
decision unless it is arbitrary, irrational, or contrary to the law. Id.Because Lin’s motion to reopen was a second motion and was not filed within the
required 90 days, it had to be based on changed country conditions in China with respect
to the Chinese government’s treatment of Falun Gong practitioners.2 Although Lin
1
The notice is addressed to Lin’s mother, and states that the committee had received
“credible information along with some photo evidence that someone in the United States
witnessed your daughter Lin, Meimei participated [sic] in evil cult Falun Gong activities
in the U.S. . . . .” A.R. 123. The notice orders Lin “to immediately stop participating in
all Falun Gong activities against the Chinese government in the U.S., and return to China
to accept serious punishment from the government.” Id. The notice goes on to indicate
that if Lin disobeys “and refuse[s] to voluntarily return to China to accept further
punishment, once she was caught in the future, she would be more severely punished and
jailed.” Id.2
“An alien may file one motion to reopen proceedings,” and such a motion “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 U.S.C. § 1229a(c)(7)(A),(B).
The “motion must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R.
§ 1003.2(c)(2), except that the time and number limitations do not apply where the alien
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submitted evidence that suggested changed circumstances for Falun Gong practitioners
since the time of her January 1999 hearing, we agree with the BIA that Lin’s evidence is
not “sufficient” and “persuasive” enough to establish a prima facie case for reopening.
She did not establish that the possible treatment she would face would amount to
persecution. Even assuming that the government would notice her Falun Gong activity in
China, and even assuming they would decide to follow through with the threat to
“punish” her and “jail” her, the evidence does not specify what her punishment would be,
nor how long she would be detained. Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir. 2005)
(persecution denotes “extreme conduct”). Lin’s affidavit was speculative, and the vague
references in her mother’s affidavit3 and the village committee’s statement regarding
potential detention and “severe” punishment were insufficient to show that any penalty
imposed on Lin for practicing Falun Gong would rise to the level of persecution. See
e.g., Kibinda v. Att’y Gen., 477 F.3d 113, 119-20 (3d Cir. 2007) (maltreatment by prison
guards over five-day period did not rise to level of persecution); Dandan v. Ashcroft, 339
F.3d 567, 573-74 (7th Cir. 2003) (single three-day detention, in which applicant was
seeks to “apply or reapply for asylum or withholding of deportation based on changed
circumstances arising in the country of nationality or in the country to which deportation
has been ordered, if such evidence is material and was not available and could not have
been discovered or presented at the previous hearing,” id. at 1003.2(c)(3)(ii). See also 8
U.S.C. § 1229a(c)(7)(C)(ii).
3
Although Lin characterizes the letter from her mother as an affidavit, it does not appear
to have been sworn to before a person authorized to administer oaths. Because we find it
unpersuasive even if properly sworn, we need not determine if such a letter would be
sufficient to constitute “authentication.” See Chen v. Att’y Gen., 676 F.3d 112, 117 (3d
Cir. 2011) (Immigration Judge “properly discounted” document that “had not been
authenticated by any means at all, such as an affidavit from [the petitioner’s] mother as to
4
deprived of food and beaten by police, resulting in swollen face, did not constitute
persecution).
For the foregoing reasons, we hold that the BIA did not abuse its discretion in
denying Lin’s motion to reopen. We will therefore deny the petition for review.
how the document was obtained”).
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