Lin v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1668
_____________
GEN LIN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A087-438-534)
Immigration Judge: Honorable Roger C. Harris
_______________
Submitted Under Third Circuit LAR 34.1(a)
November 15, 2012
Before: SCIRICA, FISHER, and JORDAN, Circuit Judges.
(Opinion Filed: November 27, 2012)
_______________
Zhou Wang
P. O. Box 130182
New York, NY 10013
Counsel for Petitioner
Eric H. Holder, Jr.
Stuart F. Delery
Ernesto H. Molina, Jr.
Kate D. Balaban
Jamie M. Dowd
Thomas W. Hussey
Office of Immigration Litigation
Civil Division, U.S. Dept. of Justice
P. O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Gen Lin petitions for review of a February 23, 2012
decision of the Board of Immigration Appeals (“BIA”)
denying his motion to reopen his removal proceedings. For
the following reasons, we will deny the petition.
I. Background
Lin is a native and citizen of the People’s Republic of
China. He entered the United States illegally on or about
May 15, 2004, across the Mexico-Texas border. On
2
December 12, 2008, he was served with a Notice to Appear
(“NTA”) before an Immigration Judge (“IJ”), and he has
conceded removability under 8 U.S.C. § 1182(a)(6)(A)(i). To
avoid removal, Lin petitioned for asylum, for withholding of
removal, and for protection under the Convention Against
Torture (“CAT”).
In support of his petition, Lin asserted that he fled
China to escape religious persecution he suffered because of
his Christianity. Lin claims that he joined a Christian church
in China and was baptized there on June 22, 2003. He says
that on October 18, 2003, he was detained for five days in a
Chinese detention center for practicing his religion, and that
he was interrogated about his church, severely beaten, and
deprived of water and sleep. According to Lin, after his
family paid a fine and he was released from detention, he
continued to fear persecution and decided to leave the
country. He chose to come to the United States because it “is
a country … [where] you have freedom to believe and
practice your religion.” (J.A. at 181.) He testified that he still
practices Christianity and would continue to practice if
removed to China.
On August 23, 2010, the IJ denied Lin relief and
ordered him removed to China. That decision was based on
Lin’s failure to file his petition for asylum within one year of
his arrival, and on an adverse credibility determination. The
IJ found Lin’s testimony unworthy of belief largely because
Lin had failed to provide corroborating witness testimony,
despite having relatives in the United States, fellow
congregants at his church, and an eight month delay in
removal proceedings in which to collect evidence. Lin’s
3
appeal of the IJ’s decision was denied by the BIA on
August 25, 2011.
Lin filed a timely motion asking the BIA to reopen
proceedings in his case. He claimed to have previously
unavailable evidence showing that he is now wanted for arrest
in China for his religious practices. Lin submitted a copy of a
summons for his arrest allegedly issued on September 5,
2011, by the “Public Security Bureau” of his hometown, after
both the IJ’s August 2010 order and the BIA’s August 2011
denial of appeal. (J.A. at 23.) He also provided
documentation of a friend’s arrest in China for practicing
Christianity, and letters from that same friend and from Lin’s
sister corroborating that Lin is currently wanted for arrest.
Finally, he provided a document allegedly from government
authorities in his hometown warning students and teachers
against “involvement in illegal religious activities” (Id. at 62-
63), and a number of photographs purportedly showing that
he continues to practice Christianity. Lin did not, however,
explain how he obtained this new documentation, nor did he
note any efforts to authenticate it. Lin also failed to file a
new application for asylum.
The BIA held that Lin did not satisfy his burden of
showing prima facie eligibility for relief, and it denied his
motion to reopen. In particular, it noted that there was no
indication of how Lin had acquired the new documents from
Chinese sources, nor had Lin made any attempt to
authenticate them. The BIA’s denial was ultimately based on
the totality of the circumstances, which included Lin’s failure
to file a new application for asylum, his reliance on
unauthenticated evidence, and the IJ’s prior adverse
credibility determination.
4
This timely petition for review followed.
II. Discussion 1
We review for abuse of discretion a decision declining
to reopen removal proceedings. INS v. Doherty, 502 U.S.
314, 323-24 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396,
409 (3d Cir. 2003). Under that standard, we give the BIA’s
decision broad deference and generally do not disturb it
unless it is “arbitrary, irrational, or contrary to law.” Filja v.
Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (citation and
internal quotation marks omitted). We also note at the outset
that “[m]otions for reopening of immigration proceedings are
disfavored,” Doherty, 502 U.S. at 323, and that “[g]ranting
such motions too freely will permit endless delay of
deportation by aliens creative and fertile enough to
continuously produce new and material facts sufficient to
establish a prima facie case,” INS v. Abudu, 485 U.S. 94, 108
(1988) (internal quotation marks omitted).
There are three substantive grounds upon which the
BIA may deny a motion to reopen immigration proceedings.
First, a motion may be denied when the movant fails to
establish a prima facie case for the relief sought. Id. at 104.
Second, it may be denied when the movant fails to introduce
previously unavailable and material evidence. Id.; see also 8
C.F.R. § 1003.2(c) (“A motion to reopen proceedings shall
not be granted unless it appears to the [BIA] that evidence
sought to be offered is material and was not available and
1
The BIA had jurisdiction under 8 C.F.R. § 1003.2.
We have jurisdiction pursuant to 8 U.S.C. § 1252.
5
could not have been discovered or presented at the former
hearing.”). Finally, when the ultimate relief sought is
discretionary, as with asylum or withholding of removal, “the
BIA may leap ahead, as it were, over ... threshold concerns ...
and simply determine that even if they were met, the movant
would not be entitled to the discretionary grant of relief.”
Abudu, 485 U.S. at 105. The BIA may also deny a motion to
reopen immigration proceedings on certain procedural
grounds, including failure to file an accompanying
application for relief. Jiang v. Holder, 639 F.3d 751, 757 (7th
Cir. 2011) (holding that it is within BIA’s discretion to deny a
petition based on petitioner’s failure to file accompanying
petition for relief); see also In re Yewondwosen, 21 I. & N.
Dec. 1025, 1026 (BIA 1997) (en banc) (explaining that failure
to file an accompanying petition for relief will generally
result in denial of petitioner’s motion).
Here, the BIA’s decision to deny Lin’s motion to
reopen his immigration proceedings was based on both
substantive and procedural grounds. Substantively, the BIA
concluded that the adverse credibility determination against
Lin and his reliance on unauthenticated documents prevented
him from establishing prima facie eligibility for relief.
Procedurally, Lin failed to submit a new application for
asylum, as required by 8 C.F.R. § 1003.2. Either the
substantive or the procedural ground, if well-founded, is
sufficient to deny Lin’s motion to reopen.
A. Authentication of Documentary Evidence
To establish a prima facie case for asylum, an
applicant “must produce objective evidence that, when
considered together with the evidence of record, shows a
6
reasonable likelihood that he is entitled to relief.” Huang v.
Att’y Gen., 620 F.3d 372, 389 (3d Cir. 2010) (citation
omitted). On a motion to reopen removal proceedings, that
evidence must be shown to have been unavailable and
undiscoverable during the previous proceeding. 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Although
the alien bears the burden of proving eligibility for the
requested relief, 8 C.F.R. § 1003.2.(c)(1), the BIA “must
actually consider the evidence and argument that a party
presents,” Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir.
2008) (citation and internal quotation marks omitted), even
though it need not expressly parse each point. Id. at 268.
Federal regulation requires that documents submitted
in support of an asylum petition be properly authenticated. 8
C.F.R. § 1287.6. Specifically, 8 C.F.R. § 1287.6 requires that
official records, such as the arrest warrant that Lin submitted,
be “evidenced by an official publication” or “certified by an
officer in the Foreign Service of the United States, stationed
in the foreign country where the record is kept.” Id. None of
the documents that Lin submitted met that requirement. As
Lin correctly notes, however, we have held that § 1287.6 “is
not an absolute rule of exclusion.” Liu v. Ashcroft, 372 F.3d
529, 532 (3d Cir. 2004). 2 Recognizing that “asylum
applicants can not always reasonably be expected to have an
2
The regulation we interpreted in Liu was 8 C.F.R.
§ 287.6, which contained identical language to 8 C.F.R.
§ 1287.6. The discrepancy in numbering is the result of the
transfer of the Immigration and Naturalization Service’s
functions to the Department of Homeland Security in March
2003. 8 C.F.R. § 1001.1(c). There is no difference in
substance between the two provisions.
7
authenticated document from an alleged persecutor,” id., we
concluded in Liu that they must sometimes be allowed to
“attempt to prove the authenticity … through other means …
.” Id. at 533. We emphasized that exceptions to the standard
authentication requirement are especially necessary when the
petitioner attempted to comply with the regulations but
“failed due to lack of cooperation from government officials
in the country of alleged persecution.” Id.We have therefore previously granted petitions for
review where the petitioner attempted, but failed, to
authenticate documents, or otherwise demonstrated that it was
not reasonable to expect the petitioner to provide
authenticated documents. In Liu, the petitioner’s counsel
attempted to authenticate abortion records from China, but
found that authentication was impossible because Chinese
officials reported that they do not authenticate such
documents. Id. at 530. Similarly, in Leia v. Ashcroft we
remanded a BIA decision when the petitioner did not follow
authentication procedures but presented other evidence
demonstrating that proper authentication would be
impossible. 393 F.3d 427, 435 (3d Cir. 2005) (determining
that it was abuse of discretion for BIA to refuse to consider
expert testimony about political conditions in petitioner’s
country of origin that made authentication impossible).
Lin argues that the BIA abused its discretion by failing
to allow him to authenticate the documents in a manner other
than that prescribed in 8 C.F.R. § 1287.6. He does not claim,
however, that any such attempt to authenticate was actually
made. Nor does he provide any evidence to suggest that
authenticating those documents would have been impossible
or otherwise unreasonable, as the petitioners did in Leia and
8
Liu. See Leia, 393 F.3d at 435; Liu, 372 F.3d at 533. In those
cases, we did not lift the burden from the petitioner to
establish a prima facie case for relief with authenticated
documents. Rather, we held that, in some circumstances,
authentication can be established through means other than
the methods specifically delineated in § 1287.6. Leia, 393
F.3d at 435 (allowing petitioner to “prove authentication by
other means”); Liu, 372 F.3d at 533 (holding that the official
methods of authentication are not the “exclusive means of
authenticating records before an immigration judge”). Lin
has evidently made no effort to establish the authenticity of
his documents through any means, yet he asserts that the BIA
has abused its discretion by denying him the opportunity to
do so now. Essentially, he argues that he deserves a second
bite at the apple, without providing any justification to excuse
his failure to meet his initial burden.
It is true that we have remanded cases to the BIA for
further consideration of the authenticity of documents, but
only when the BIA’s denial of a motion or appeal was based
solely on the petitioner’s failure to follow the official
procedures or lacked any consideration of the individual
documents. See Huang, 620 F.3d at 391 (remanding where
BIA rejected all newly submitted evidence as cumulative
without considering the evidence); Sukwanputra v. Gonzales,
434 F.3d 627, 636 (3d Cir. 2006) (vacating a BIA order on
direct appeal in part because “the IJ refused to give any
weight to unauthenticated documentary evidence on the basis
of [§ 1287.6] alone”); see also Liu, 372 F.3d at 533 (holding
that it was legal error for the IJ to reject documents on the
sole ground that they did not meet the specific authentication
requirements in the regulation). Here, the BIA did not deny
Lin’s motion solely on the ground that he failed to follow the
9
authentication procedure in § 1287.6, and it did not
summarily reject his evidence. Rather, the BIA questioned
the authenticity of his documents because there was “no
indication as to how the documents from Chinese sources
came into [his] possession … .” (J.A. at 3.) The BIA also
noted that the photographs Lin submitted were taken at
“undisclosed times and locations,” which prevented them
from convincingly demonstrating that he had recently been
engaged in church activities. (Id.) In the context of the IJ’s
prior adverse credibility determination, the BIA considered
those deficiencies sufficient to prevent a prima facie showing
of eligibility for relief. 3 We cannot say that that conclusion
3
Prior adverse credibility determinations are not
always relevant on motions to reopen. In Guo v. Ashcroft,
this Court held that when a prior credibility assessment is
“utterly unrelated” to a later asylum claim, that assessment
cannot justify subsequent denials of relief. 386 F.3d 556, 562
(3d Cir. 2004). But that is not the case here. Lin’s adverse
credibility determination was based on his failure to provide
evidence corroborating his Christian faith and religious
persecution. Unlike the petitioner in Guo, who incurred an
adverse credibility determination with regard to her claim of
religious persecution and then filed a motion to reopen based
on China’s family planning policy, Lin’s initial application
and motion to reopen are based on the same underlying basis
for asylum: religious persecution. The BIA could thus rely on
the prior credibility determination if it chose to do so. See
Huang, 620 F.3d at 389 (explaining that the evidence of
record is considered along with the new evidence in
determining whether the petitioner has established a prima
facie case for relief).
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was “arbitrary, irrational, or contrary to law.” Filja, 447 F.3d
at 251 (citation and internal quotation marks omitted).
In sum, the BIA considered the newly presented
evidence and found it insufficient to establish a “reasonable
likelihood that [Lin] is entitled to relief,” Huang, 620 F.3d at
389, because Lin failed to established its authenticity. Given
the heavy burden on a party moving to reopen removal
proceedings, the BIA did not abuse its discretion in denying
Lin’s motion on that basis.
B. Failure to Submit a New Application for Asylum
Even if Lin had established a prima facie showing of
eligibility for relief, the BIA appropriately denied his claim
on procedural grounds. Federal regulations require that “[a]
motion to reopen proceedings for the purpose of submitting
an application for relief must be accompanied by the
appropriate application for relief and all supporting
documentation.” 8 C.F.R. § 1003.2(c)(1). The BIA has held
that “failure to submit an application for relief … will
typically result in the Board’s denial of the motion.” In re
Yewondwosen, 21 I. & N. Dec. at 1026. As the Supreme
Court has explained, the Attorney General has a “legitimate
interest in creating official procedures for handling motions to
reopen deportation proceedings so as readily to identify those
cases raising new and meritorious considerations.” INS v.
Wang, 450 U.S. 139, 145 (1981) (per curiam). In recognition
of that interest, this Court has agreed that denying a motion
for failure to comply with procedural requirements is not an
abuse of the BIA’s discretion. Nocon v. INS, 789 F.2d 1028,
1033 (3d Cir. 1986).
11
As the BIA noted in its denial of his motion, Lin did
not submit a new application for relief with his motion to
reopen, as required by 8 C.F.R. § 1003.2(c)(1). 4 (See J.A. at
3 (“The respondent has not submitted a new asylum
application, as required.”).) 5 Lin does not contest this
finding, and there is no indication in the record that he
submitted the necessary application. In light of the
mandatory language in § 1003.2(c)(1), and in recognition of
the BIA’s authority to enforce its procedural requirements,
Wang, 450 U.S. at 145, we conclude that that failure alone is
a sufficient basis to deny his petition. 6 In re Yewondwosen,
4
Although the BIA did not specifically base its
conclusion on this fact, it noted the lack of the required
application and ultimately denied the motion based on the
“totality of the circumstances.” (J.A. at 4.)
5
In his motion to reopen, Lin repeated his requests for
asylum, for withholding of removal, and for protection under
the CAT. A motion to reopen proceedings on any of those
grounds must be accompanied by “the appropriate application
for relief … .” 8 C.F.R. § 1003.2(c)(1). Although the BIA
noted only Lin’s failure to file an application for asylum, that
observation may have implicitly recognized that Lin also
failed to file for withholding of removal, which can be raised
through the same application. See 8 C.F.R. § 208.3(b) (“An
asylum application shall be deemed to constitute at the same
time an application for withholding of removal … .”). In any
event, Lin did not file an accompanying application for relief
of any kind.
6
While the BIA may rightly enforce its procedural
requirement that a petitioner submit a new application for
relief with his motion to reopen, that does not mean that rigid
enforcement will always be warranted. Cf. Lu v. Ashcroft,
12
21 I. & N. Dec. at 1026; see also Jiang, 639 F.3d at 757(holding that it is within the BIA’s discretion to deny a
petition based on petitioner’s failure to file the accompanying
petition for relief); Romero-Ruiz v. Mukasey, 538 F.3d 1057,
1064 (9th Cir. 2008) (concluding that the BIA “did not abuse
its discretion in determining that Romero-Ruiz did not satisfy
the procedural requirements” because, among other things, he
failed to file an accompanying application for cancellation of
removal); Palma-Mazariegos v. Keisler, 504 F.3d 144, 147
(1st Cir. 2007) (per curiam) (concluding that failure to file an
accompanying application for relief is “independently
sufficient to justify the denial” of a motion to reopen);
Waggoner v. Gonzales, 488 F.3d 632, 639 (5th Cir. 2007)
(holding that the BIA did not abuse its discretion in denying a
motion to reopen where the petitioner did not submit an
appropriate application for relief). Accordingly, the BIA did
not abuse its discretion in denying Lin’s motion to reopen.
259 F.3d 127, 133 (3d Cir. 2001) (cautioning against a “strict,
formulaic interpretation” of the procedural requirements for
supporting a motion to reopen based on ineffective assistance
of counsel); Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124-25
(9th Cir. 2000) (holding that the BIA abused its discretion by
imposing the procedural requirement that a motion to reopen
be accompanied by supporting documentation when
petitioner’s counsel made diligent efforts to obtain the
necessary materials and his failure was due, in part, to the
administrative tribunal’s own failure to respond to counsel’s
requests). Moreover, the BIA retains its “clear authority” to
reopen proceedings “in the interests of fairness and
administrative economy,” even when other regulatory
requirements have not been met. In re Yewondwosen, 21 I. &
N. Dec. at 1027.
13
III. Conclusion
For the foregoing reasons, we will deny the petition for
review.
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