Wanrong Lin v. Eric Holder, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1016
WANRONG LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 16, 2014 Decided: November 14, 2014
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Petition denied by published opinion. Judge Duncan wrote the
opinion, in which Judge Agee and Judge Diaz joined.
ARGUED: Theodore N. Cox, New York, New York, for Petitioner.
Aimee J. Carmichael, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery,
Acting Assistant Attorney General, Civil Division, John S.
Hogan, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
DUNCAN, Circuit Judge:
Petitioner Wanrong Lin seeks judicial review of an order of
the Board of Immigration Appeals (“BIA” or “Board”) denying his
second motion to reopen removal proceedings. Lin contends that
the BIA abused its discretion in evaluating the evidence he
submitted in support of his motion to reopen, and in finding the
May 2007 Department of State Profile of Asylum Claims and
Country Conditions on China (“2007 Profile”) 1 reliable. For the
reasons that follow, we deny Lin’s petition for review.
I.
A.
Many of the facts leading to Lin’s current petition for
review are set forth in this court’s opinion in Lin v. Holder,
452 F. App’x 369 (4th Cir. 2011). We summarize the relevant
portions here.
Lin, a native and citizen of the People’s Republic of
China, entered the United States without inspection and
subsequently married a U.S. citizen. Lin and his wife have
three children, all U.S. citizens. In January 2007, the
1
The 2007 Profile reports that, in the decade preceding its
publication, there were no cases of forced abortion or
sterilization in Lin’s home province of Fujian, China. See J.A.
23.
2
Department of Homeland Security served Lin with a Notice to
Appear, charging him with being removable under 8 U.S.C.
§ 1182(a)(6)(A)(i). During Lin’s removal proceedings before an
Immigration Judge (“IJ”), Lin filed applications for asylum,
withholding of removal, and relief pursuant to the United
Nations Convention Against Torture.
The IJ held a hearing on the merits of Lin's asylum claim
in March 2008. Lin testified that, given the birth of his two
children 2 in the U.S. in violation of China's one-child family
planning policy, he feared persecution, specifically forced
sterilization, upon his return to China. Lin submitted several
identification documents for himself and his family, but failed
to submit evidence regarding country conditions and family
planning policies in China. Moreover, though Lin claimed to
have evidence substantiating his father’s past persecution for
family planning violations due to Lin’s birth, Lin did not
submit such evidence to the IJ, and Lin’s father, who lives in
the U.S., failed to testify on his behalf.
The IJ denied Lin’s applications and ordered his removal to
China. The IJ found that Lin had not submitted sufficient
documentation to support his claims of possible future
2
Lin’s third child was born after he submitted his asylum
application.
3
persecution and torture stemming from the birth of his children.
With respect to Lin’s past persecution claim, the IJ did not
find credible Lin’s testimony regarding his father’s arrest in
connection with Lin’s birth, or Lin’s related detention by
authorities as a child. The IJ determined that this testimony
was inconsistent with Lin’s asylum application and
uncorroborated by any objective evidence.
Lin appealed this decision to the BIA, which affirmed all
of the credibility and evidentiary findings of the IJ, as well
as the order of removal. Lin did not file a petition for review
of the BIA's decision with this court.
In February 2010, Lin filed a motion to reopen his asylum
claim with the BIA, arguing that material and previously
unavailable documents demonstrated changed country conditions in
China and established that Lin would face fines and forced
sterilization if repatriated. Lin asserted that coercive
practices were widely used in his home province of Fujian to
implement China's family planning policies, and that he would be
subject to these practices on return. Lin also questioned the
2007 Profile’s reliability and criticized the BIA’s reliance on
this report in previous decisions.
The BIA denied Lin’s motion to reopen for several reasons.
First, the Board noted that Lin’s motion was not accompanied by
an affidavit, and therefore Lin’s counsel’s statements that Lin
4
would be forcibly sterilized were not evidence. Second, the
Board determined that several of Lin’s documents had been
previously submitted to the BIA with his first asylum claim, had
not been properly authenticated, were incomplete, or had
previously been considered by the BIA in other, precedential
decisions. Third, the BIA rejected Lin’s argument that it
should grant his motion to reopen because the Board had granted
a motion to reopen based on similar documents in an unrelated
case. Finally, the BIA rejected Lin’s argument that the 2007
Profile was unreliable, finding that Lin failed to provide
evidence that proved his claim or demonstrated that his expert,
Dr. Flora Sapio, was qualified to make such a determination.
Lin timely filed a petition for review of the BIA’s
decision. In an unpublished decision released on October 28,
2011, this court denied Lin’s petition for review. We found
that the BIA did not abuse its discretion in rejecting certain
documents as unauthenticated, relying on the 2007 Profile, or
rejecting Lin’s claim of economic persecution where Lin had
provided no financial information. See Lin, 452 F. App’x at
372-73.
B.
On June 11, 2012, Lin filed a second motion to reopen with
the BIA. In this motion, Lin argued that “new and previously
unavailable evidence . . . establishe[d] changed country
5
conditions in China with respect to the government’s enforcement
of the population control policy since [his] hearing before the
[IJ].” J.A. 18. Lin specifically alleged that the new evidence
“demonstrate[d] that the 2007 Profile does not reflect current
conditions [in China] and is an unreliable source,” J.A. 18,
that officials in Lin’s home province of Fujian use coercive
measures to enforce “population targets and quotas,” J.A. 19,
and that “an official policy change” in Fujian Province now
mandates sterilization for parents of U.S.-born children, who
have not acquired legal status abroad, “without exception,” J.A.
19.
On December 11, 2012, the BIA denied Lin’s second motion to
reopen, concluding that Lin’s “evidence [was] not sufficient to
establish a change in circumstances or country conditions
‘arising in the country of nationality’ so as to create an
exception to the time and number limitations for filing another
. . . motion to reopen.” J.A. 7 (quoting 8 U.S.C. §
1229a(c)(7)(C)(ii)). The Board pointed out that much of the
evidence Lin attached to his second motion to reopen had been
previously submitted, J.A. 4-5, and that Lin’s documents from
China “ha[d] not been sufficiently authenticated in any manner.”
J.A. 5.
The BIA discussed Lin’s evidence category-by-category. In
doing so, it determined that Lin’s submissions were insufficient
6
to show that he would be subject to sterilization in China.
First, the Board noted that Lin’s evidence indicated that
administrative penalties, rather than coercive measures, are
used to enforce China’s family planning policies. Second, the
Board found that Lin’s evidence suggesting that his children
would be considered Chinese nationals did not establish that Lin
would be sterilized. Third, the Board noted that Lin had not
demonstrated that the policies or practices highlighted in his
submitted documents were applicable to him. For example, the
evidence either pertained to locales outside his home of Fuzhou
City, 3 or did not involve sterilizations following the birth of
U.S.-born children. Fourth, the Board concluded that Lin had
not shown that the 2007 Profile was unreliable.
Alternatively, because he had not offered information
relevant to his current financial situation, the Board
determined that Lin had not shown that he would be subjected to
economic harm amounting to persecution if repatriated to China.
As such, the Board concluded that Lin “ha[d] not satisfied his
burden to demonstrate that his removal proceedings should be
reopened.” J.A. 7. This petition for review followed.
3
Lin is from Tantou Village, Guantou Town, in Fuzhou City,
which is located in Fujian Province, China. See J.A. 5.
7
II.
Lin presses two arguments on appeal. First, Lin argues
that his petition should be granted in light of our decision in
Chen v. Holder, 742 F.3d 171 (4th Cir. 2014), in which we held
that it was improper for the BIA to rely on the 2007 Profile
without accounting for strong contradictory evidence that
petitioners would be forcibly sterilized if returned to China,
id. at 179–81. Turning to the merits, Lin argues next that the
BIA abused its discretion by failing to properly consider what
Lin characterizes as new, previously unavailable, and material
evidence establishing changed country conditions in China
related to the enforcement of the one-child policy. We consider
each issue in turn.
We review the BIA’s denial of a motion to reopen for abuse
of discretion. INS v. Doherty, 502 U.S. 314, 323-24 (1992);
Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir. 2009); see also 8
C.F.R. § 1003.2(a). The BIA’s decision “is reviewed with
extreme deference, given that motions to reopen are disfavored
because every delay works to the advantage of the deportable
alien who wishes merely to remain in the United States.”
Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir. 2009) (quoting
Massis v. Mukasey, 549 F.3d 631, 636 (4th Cir. 2008)) (internal
quotation mark omitted). Therefore, we “reverse the BIA’s
decision only if it is ‘arbitrary, irrational, or contrary to
8
law.’” Mosere, 552 F.3d at 400 (quoting Sevoian v. Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002)).
An alien may file only one motion to reopen within ninety
days of the final administrative decision sought to be reopened.
8 C.F.R. § 1003.2(c)(2). A motion to reopen “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.” Id. § 1003.2(c)(1). The time and
numerical limits on motions to reopen, however, do not apply to
a motion to reopen proceedings “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. § 1003.2(c)(3)(ii)
(emphasis added).
In the context of motions to reopen based upon changed
country conditions in China associated with family planning
policies, the BIA will reopen the case only if:
on a case-by-case analysis, the genuine, authentic,
and objectively reasonable evidence proves that (1) a
relevant change in country conditions occurred, (2)
the applicant has violated family planning policy as
established in that alien’s local province,
municipality, or other relevant area, and (3) the
violation would be punished in a way that would give
rise to a well-founded fear of persecution.
9
In re S-Y-G-, 24 I. & N. Dec. 247, 251 (BIA 2007). The
petitioner carries a “heavy burden”; he or she must show that
“the new evidence offered would likely change the result in the
case.” In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992).
III.
Lin first argues that our decision in Chen mandates
reopening of his removal proceedings. We begin with a brief
summary of our decision in Chen as a useful predicate for the
discussion that follows.
A.
In Chen, a husband and wife sought asylum claiming that
they would face involuntary sterilization in China due to the
birth of their two children in the United States. 742 F.3d at
175. The IJ found the petitioners credible, but concluded that
the couple failed to prove genuine fear of future persecution
that was objectively reasonable for two reasons. First, China’s
one-child policy does not apply to foreign-born children, and
second, it imposes only economic penalties for such violations.
Id. In making this determination, the IJ relied heavily on the
2007 Profile, “indicat[ing] without explanation that the [2007
Profile] was simply ‘more persuasive’” than other evidence of
record. Id. at 176. The IJ also ignored other submissions
wholesale, including the 2009 Annual Report from the
10
Congressional-Executive Commission on China (“2009 CECC Report”)
and a webpage maintained by the Fuzhou City Family Planning
Committee. 4 Id. The BIA adopted and affirmed the IJ’s decision,
“[r]elying exclusively on the [2007 Profile]” to conclude that
coercive measures rising to the level of persecution would not
be used against the petitioners to enforce China’s one-child
policy. Id. at 177 (emphasis added).
This court granted Chen’s petition for review and remanded
the case to the BIA to address compelling evidence that the IJ
and BIA ignored. The court acknowledged that State Department
Reports are “highly probative evidence in a well-founded fear
case.” Id. at 179 (quoting Gonahasa v. INS, 181 F.3d 538, 542
(4th Cir. 1999)) (internal quotation mark omitted). It
cautioned, however, that “the BIA should avoid treating these
Country Reports ‘as Holy Writ’ immune to contradiction,” id.
(quoting Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000)), and
instead must “ensure that unrebutted, legally significant
evidence is not arbitrarily ignored by the factfinder,” id.
4
This webpage is maintained by the family planning
committee in Lin’s home city. However, as we discuss below,
Lin’s case is distinguishable from Chen’s on several grounds,
and in fact, Lin submitted this document as well as the CECC
Report when he filed his first motion to reopen, see J.A. 1,294,
1,683, and we held that the BIA did not abuse its discretion in
determining that those submissions were not sufficient to
establish changed country conditions.
11
(quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir, 2009))
(internal quotation marks omitted). This court also determined
that the 2009 CECC Report and the Family Planning Committee
website were legally significant contradictory evidence the BIA
had failed to account for. See id. at 181.
We begin our analysis with Chen--ultimately concluding that
it is materially distinguishable from the petition here. We
then consider independently Lin’s petition on its merits.
B.
Lin’s case differs from Chen in two critical respects,
which we address in turn. The first is the extent to which the
BIA considered and addressed a range of evidence, including the
2007 Profile. The second is that Lin’s claims arise in a
markedly different procedural posture. 5
i.
In Chen, we appropriately took the BIA to task for its
treatment of the 2007 Profile “‘as Holy Writ’ immune to
contradiction.” Id. at 179 (quoting Galina, 213 F.3d at 959).
In consequence, the BIA “failed to consider compelling
contradictory evidence suggesting that forced sterilizations are
still a reality for Chinese nationals such as [the
5
We note as well that petitioners in Chen were found
credible--whereas Lin was not--but that need not factor into our
analysis.
12
petitioners].” Id. The Chen court acknowledged that “[a]bsent
powerful contradictory evidence, the existence of a State
Department report supporting the BIA’s judgment will generally
suffice to uphold the Board’s decision.” Id. (alteration in
original) (quoting Gonahasa, 181 F.3d at 542) (internal
quotation marks omitted). Nevertheless, it was clear that the
Board in Chen “selectively consider[ed] evidence,” id. (quoting
Tang v. Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009)
(internal quotation mark omitted)), and “cherry-picked
statements from the [2007 Profile],” id., while simultaneously
failing to explain or account for documents such as the 2009
CECC Report and the Family Planning Committee website in any
“meaningful way,” id. at 181.
The facts are markedly different here; the Board’s decision
does not treat the 2007 Profile as immune to contradiction or
fail to account for contradictory evidence in the record. As an
initial matter, the BIA here did not ignore the 2009 CECC Report
or the Family Planning Committee website in favor of the 2007
Profile, as did the Board in Chen. Moreover, Lin submitted
those documents to the BIA when he filed his first motion to
reopen in 2010, see J.A. 1,294, 1,683, and we have already held
that the BIA did not abuse its discretion in determining that
those submissions, alongside Lin’s other evidence, were not
sufficient to establish changed country conditions. See Lin,
13
452 F. App’x at 372-73. We will not revisit that decision here.
See Sejman v. Warner–Lambert Co., 845 F.2d 66, 69 (4th Cir.
1988) (“[W]hen a decision of an appellate court establishes the
‘law of the case,’ it must be followed in all subsequent
proceedings in the same case.” One exception to this rule
applies where “controlling authority has since made a contrary
decision of law applicable to the issue.” (quoting EEOC v. Int’l
Longshoremen’s Ass’n, 623 F.2d 1054, 1058 (5th Cir. 1980))
(internal quotation mark omitted)). Given the distinctions just
noted and those we discuss below, Chen does not warrant
disturbing the law of the case pertaining to the BIA’s
evaluation of the 2009 CECC Report and the Family Planning
Committee website.
Moreover, unlike the Board in Chen, the BIA’s decision here
to rely on the 2007 Profile was considered and reasoned. In
fact, we recognized in Chen “that the BIA and IJ are not
required to discuss every piece of evidence in the record,” 742
F.3d at 179, simply noting that a Board’s decision must be
explained “in terms sufficient to enable a reviewing court to
perceive that [the Board has] heard and thought and not merely
reacted,” id. (quoting Ayala v. Att’y Gen., 605 F.3d 941, 948
(11th Cir. 2010) (internal quotation mark omitted)). There, the
Board’s “boilerplate language . . . was insufficient to
demonstrate that the agency gave [contradictory evidence] more
14
than perfunctory consideration.” Id. at 181. Here, to the
contrary, the BIA catalogued the contents of Lin’s evidentiary
submissions in detail and discussed its reasons for continuing
to find the 2007 Profile valid. See J.A. 4–6. Although the BIA
here did not ultimately credit the evidence Lin offered to
attack the 2007 Profile, considering and failing to credit
certain evidence is far different from “ignoring . . . evidence
that . . . calls into question the conclusion the judge is
attempting to reach,” Chen, 742 F.3d at 179 (quoting Tang, 578
F.3d at 1280) (internal quotation mark omitted), which was the
court’s concern with the Board’s decision in Chen.
ii.
The procedural posture of Lin’s petition also distinguishes
it from Chen. In Chen, the petitioners sought asylum on direct
review, 6 and this court determined that the BIA’s failure to
analyze fully the petitioners’ evidentiary submissions might
have impacted the Board’s determination that the petitioners
failed to satisfy their burden of proving a well-founded fear of
persecution. 742 F.3d at 179-81. In contrast, Lin seeks review
6
Technically, Chen was an appeal from a reopened proceeding
because the husband’s and wife’s separate proceedings were
consolidated into one. See 742 F.3d at 174-75. This makes no
substantive difference for the purposes of our review because
Chen was not an appeal from a denial of a motion to reopen, let
alone a second such motion.
15
of the denial of a second motion to reopen. Lin’s burden at
this juncture was to show that country conditions in China were
materially different from those conditions at the time of his
original removal proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii).
As an initial matter, this court has already concluded,
based on much of the same evidence now before us--including the
very 2009 CECC Report and the Family Planning Committee website
at issue in Chen--that Lin failed to demonstrate changed country
conditions. See Lin, 452 F. App’x at 373. As such, though some
of the documents before us were also presented in Chen, the
procedural posture here explains why the BIA did not consider
the documents the Board should have considered in Chen: because
they were the same documents that we already concluded failed to
meet the burden for reopening.
Moreover, it bears repeating that the BIA’s decision to
deny a motion to reopen is reviewed for abuse of discretion.
See Sadhvani, 596 F.3d at 182. Here, the BIA catalogued Lin’s
submissions, both old and new, evaluated the evidence of record,
and explained why the evidence did not meet Lin’s heavy burden.
Such diligence falls far short of arbitrariness. Cf. Chen, 742
F.3d at 181.
16
IV.
Turning to the merits of Lin’s case, the BIA did not abuse
its discretion in determining that his submissions did not
establish changed country conditions in China related to the
enforcement of the one-child policy. The BIA is not required to
“expressly parse or refute . . . each individual argument or
piece of evidence,” Wang v. BIA, 437 F.3d 270, 275 (2d Cir.
2006) (quoting Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 160
n.13 (2d Cir. 2006)) (internal quotation mark omitted); see also
Chen, 742 F.3d at 179, particularly evidence that “the BIA is
asked to consider time and again,” id. The Board here
considered the evidence of record as a whole, discussed specific
submissions in its decision, and found that the evidence did not
support a finding that China’s sterilization policies would be
applied to Lin.
The BIA did not abuse its discretion in this regard for
four reasons, which we address in turn. First, many of Lin’s
documents were unauthenticated. Second, much of Lin’s evidence
was neither new nor previously unavailable. Third, to the
extent that Lin’s evidence was new, it was not relevant to his
circumstances or his home province in China. And finally, Lin’s
evidence was not sufficient to discredit the findings in the
2007 Profile.
17
A.
The BIA did not abuse its discretion in determining that
Lin’s evidence was insufficient to show that he would be subject
to sterilization in China because much of it was
unauthenticated. As the Board put it, “foreign documents that
have not been sufficiently authenticated in any manner are not
considered genuine, authentic, [or] objectively reasonable
evidence.” J.A. 5. This was not an abuse of discretion.
To be admissible in an immigration proceeding, a foreign-
government document must “be evidenced by an official
publication thereof, or by a copy attested by an officer so
authorized.” 8 C.F.R. § 1287.6(b)(1). Lin admits that the
evidence from China fails to meet the requirements of this
regulation. Rather, he argues that failure to comply with the
regulation is not itself a sufficient basis for rejecting
evidence as unauthenticated.
While Lin is correct in this regard, the BIA did not, in
fact, conclude that Lin’s documents were unauthenticated solely
because they failed to comply with the regulation. Instead, the
BIA stated that, although Lin’s attorneys “sought information
about some of the documents,” the foreign documents had “not
been sufficiently authenticated in any manner.” J.A. 5
(emphasis added). Lin first suggests that he proffered an
alternative means of authentication by submitting new Chinese
18
documents that “provid[e] context” and confirm the “likely
authenticity” of his previously submitted unauthenticated
documents. Appellant’s Br. at 32-33. In the alternative, Lin
argues that the BIA failed to afford him an opportunity to
authenticate his foreign documents by alternative means.
Sufficient alternative means of authentication include
“provid[ing] information concerning how the document was
obtained, identify[ing] the source of the information contained
in the document, [and] show[ing] that there are consistencies
between the information contained in the otherwise
unauthenticated document and authenticated documents.” Zhu v.
Att’y Gen., 744 F.3d 268, 274 (3d Cir. 2014).
As an initial matter, many of these “authenticating”
documents were previously submitted along with Lin’s first
motion to reopen, compare J.A. 788-89, 797, 805-06, 815-17, 825-
30, with J.A. 1,647-48, 1,652, 1,656-57, 1,662-64, 1,668-73, and
we held that the BIA did not abuse its discretion by rejecting
them as inauthentic at that time. Lin, 452 F. App’x at 372.
With respect to Lin’s newly submitted foreign documents, though
courts have held that authenticity may be alternatively shown by
highlighting consistencies between “otherwise unauthenticated
document[s] and authenticated documents,” Zhu, 744 F.3d at 274,
we reject the argument that unauthenticated documents could
authenticate other unauthenticated documents.
19
Turning to Lin’s argument that the BIA failed to afford him
an opportunity to authenticate the documents from China by
alternative means, the government notes that, following Lin’s
first unsuccessful motion to reopen, this court “provided Lin
with a blueprint for authentication” by suggesting that he
should have provided an affidavit explaining how he acquired the
Chinese documents. Appellee’s Br. at 18; see also Lin, 452 F.
App’x at 372. Yet Lin’s affidavit here makes no mention of how
these documents came into his possession. See J.A. 99. In
light of these omissions, and against the backdrop of our
deferential standard of review, we conclude that it was not an
abuse of discretion for the BIA to determine that it could not
rely on Lin’s documents from China because they had not been
authenticated in any manner.
B.
In addition, many of the documents Lin submitted were
neither new nor previously unavailable, and as such the BIA did
not abuse its discretion in deeming them insufficient to show
that Lin would be subject to sterilization in China. Lin bears
the burden of establishing that the evidence “was not available
and could not have been discovered or presented at the former
hearing.” 8 C.F.R. § 1003.2(c)(1).
Lin included eighty-two exhibits with his second motion to
reopen. See J.A. 115-129; see also J.A. 130-1,290. As the
20
Board pointed out, many of them were previously available, as
evidenced by the fact that they were included with his first
motion to reopen, see J.A. 4-5, the denial of which, as has been
noted, this court affirmed in Lin, 452 F. App’x at 373.
The Board grouped the categories of documents Lin included
with his second motion to reopen, distinguishing those Lin
“previously submitted” from those “additional” materials that
were new. 7 See J.A. 4-5. In fact, sixty-one of the eighty-two
exhibits pre-date the filing of Lin’s first motion to reopen, 8
and Lin fails to provide any explanation as to why they could
not have been discovered or presented earlier. 9 The Supreme
7
Again, although the Board did not also catalog each of the
eighty-two exhibits, it is not required to do so. See Wang, 437
F.3d at 275.
8
The exhibits that pre-date the February 2010 filing of
Lin’s first motion to open are as follows: Exhibits B, E, F, G,
H, I, J, L, M, N, O, P, Q, U, V, W, X, Y, Z, AA, EE, FF, GG, HH,
II, MM, NN, OO, PP, QQ, RR, SS, TT, VV, WW, XX, YY, AAA, BBB,
CCC, DDD, EEE, FFF, GGG, HHH, III, JJJ, KKK, LLL, MMM, NNN, OOO,
PPP, QQQ, RRR, SSS, TTT, UUU, VVV, WWW, XXX. In his second
motion to reopen, Lin relies heavily on several of these
documents to establish changed country conditions, including
Exhibits RR-TT (J.A. 695-721) and AAA-HHH (J.A. 787-876). See
Appellant’s Br. at 32-33. These exhibits range in date from
2005 to 2009, which means that they were available before Lin
filed his first motion to reopen in February 2010.
9
Lin makes repeated, conclusory assertions in his brief
that this evidence is new or previously unavailable, but
provides no explanation as to why. See, e.g., Appellant’s Br.
at 12, 19, 21, 25, 28. Lin also erroneously attributes some
significance to the fact that certain of his pre-February 2010
documents post-date the 2007 Profile. See J.A. 18.
21
Court has noted that “[e]vidence is not previously unavailable
merely because the movant chose not to . . . present evidence
earlier,” Dada v. Mukasey, 554 U.S. 1, 14 (2008) (quoting 1
Gordon § 3.05[8][c], at 3-76.34) (internal quotation mark
omitted), and that evidence of changed country conditions is not
new as long as it “could have been foreseen or anticipated at
the time of the earlier proceeding,” INS v. Doherty, 502 U.S.
314, 326 (1992). The Board did not abuse its discretion in
declining to consider them at this juncture.
C.
With respect to the new documents, the BIA considered and
found them not to be material. For the following reasons, we
agree.
Because Lin’s new evidence was not relevant to his
circumstances, the BIA did not abuse its discretion in deeming
the findings contained therein immaterial. The BIA will reopen
asylum proceedings only if the evidence proves that “a relevant
change in country conditions has occurred.” In re S-Y-G-, 24 I.
& N. Dec. at 251 (emphasis added). As to the twenty-one
documents Lin submitted that either post-date his first motion
to reopen, or are undated, none sheds light on Lin’s specific
22
circumstances. 10 Indeed, even if we consider Lin’s
unauthenticated or previously available evidence, the evidence
of record does not show a relevant, material change in country
conditions because Lin has not made a showing that family
planning policies in China would impact him if he were
repatriated.
First, as was true of most of Lin’s prior evidence, that
which is newly submitted continues to reflect conditions in
10
See, e.g., J.A. 351-55 (2011 FOIA request letter from
Lin’s attorney), J.A. 385-89 (2010 magazine article about a
woman from Puning who was sterilized), J.A. 390-97 (2011
newspaper article about the seizing of children for failure to
pay social compensation fines), J.A. 398-99 (2011 news article
about a woman from Fujian Province who was sterilized), J.A.
448-61 (2011 report detailing case profiles of women mistreated
under the one-child policy), J.A. 462-73 (2010 document about
family planning policies in Chang Le City), J.A. 474-85 (same),
J.A. 602-13 (undated family planning policy of Ying Qian Town
making no reference to forced sterilization), J.A. 614-22
(undated family planning policy of Ying Qian Town referring to
“remedial measures” only in the context of unwanted
pregnancies), J.A. 722-30 (undated FAQ document referring to
sterilization of women in Langqi Town), J.A. 774-86 (2010 family
planning policy for Lian Jiang), J.A. 1,260-62 (2012 article
about a woman who fled from forced sterilization), J.A. 1,263-65
(2012 article indicating that China is launching a program to
stop the use of threats in the promotion of the one-child
policy), J.A. 1,266-68 (2011 article about forced abortions),
J.A. 1,269-70 (2010 FOIA request for documents pre-dating 2007),
J.A. 1,271-77 (2012 FOIA request for shipping codes from 2003),
J.A. 1,278-90 (undated report containing a general discussion of
“unspecified ‘remedial measures’” taken in Fujian Province, J.A.
1284).
23
locales outside of his home region. 11 For example, Exhibits CC
and DD post-date the filing of Lin’s first motion to reopen, but
describe conditions in a city some distance away from Lin’s home
village. See J.A. 463-85. Exhibit CC describes family planning
efforts targeting migrant workers, J.A. 463-73, while Exhibit DD
provides a general outline of an assessment and bonus program
geared toward “rais[ing] the overall level of . . . family
planning work,” J.A. 475, but does not specifically detail
tactics or targets of this work, J.A. 475-85.
Second, as was also true of similar evidence rejected for
the same reason in the prior proceeding, much of Lin’s evidence
pertains to practices involving women. Exhibit RR, for example,
states that “Chinese women whom [sic] have given birth to two
children in a foreign country . . . are required to return to
China and undergo [a] sterilization operation.” J.A. 695
(emphasis added). Similarly, Exhibits BBB and DDD focus
exclusively on the requirement that “women with two or more
children are required to [undergo] sterilization.” J.A. 797,
816. Exhibits R, T, YYY, and AAAA--recent news articles about
family planning efforts in China--also pertain exclusively to
remedial measures taken against women. See J.A. 386 (detailing
11
The evidence pertaining to Lin’s home province is
inauthentic, not relevant, or not new.
24
the Puning Family Planning Bureau’s “Iron Fist Campaign,”
targeting women who had more than one child); J.A. 399
(reporting the story of a woman who was captured and forced to
have sterilization surgery); J.A. 1,261 (stating that a woman in
Fujian Province was held down on an operating table in an
attempt to forcibly sterilize her); J.A. 1,267 (noting that
“Chinese authorities routinely force women to terminate
‘unauthorized’ pregnancies”). In addition to their exclusive
focus on women, they also shed no light on the treatment of men
returning to China with foreign-born children, as we discuss
below.
Third, the evidence of record establishes that, because
Lin’s wife is a U.S. citizen, Lin’s family would be exempt from
China’s sterilization requirements. At oral argument, Lin in
fact conceded that his wife will not be forcibly sterilized due
to her citizenship status, a point supported by the evidence he
submitted. See J.A. 695 (explaining that Chinese women are
required to undergo sterilization “[u]nless they change their
nationalities, then they may be exempt from sterilization”).
Lin nevertheless argues that he remains subject to
sterilization. 12 Lin relies on an entry on the Fujian Population
12
Lin does not explain why or how a family planning policy
could exempt only one member of a married couple.
25
and Family Planning Committee Official Website to support this
assertion. A Chinese man whose wife was a legal resident, but
not a citizen, of another country inquired as to whether the
birth of his two children violated Chinese family planning
policies. The website advises that, for couples “who decide not
to give birth to more children,” it is “highly recommend[ed]”
that they choose “male / female sterilization as their first
choice [contraceptive method].” J.A. 406 (emphasis added).
While this website indicates that sterilization is recommended
as a form of birth control, it does not suggest that it is
required. In the face of evidence that is equivocal at best, we
cannot find that the Board abused its discretion in declining to
rely on it in its current iteration.
D.
Finally, we turn to the BIA’s conclusion that Lin had not
established that the 2007 Profile was “unreliable.” J.A. 6
(internal quotation marks omitted). Lin offered two categories
of new evidence challenging the continued validity of the 2007
Profile: the CECC Reports from 2009 and 2010, see J.A. 131-58,
160-90, and an affidavit of Dr. Flora Sapio, J.A. 192-251.
Turning to the reports first, Lin had previously submitted
the 2009 CECC Report when he filed his first motion to reopen,
and this court upheld the BIA’s determination that the Report’s
“general conclusions”--which focused on women--were
26
“insufficient to demonstrate the likelihood of enforcement
against Lin specifically” and establish changed country
conditions. Lin, 452 F. App’x at 373. The 2010 CECC Report
does not affect this analysis. Although the 2010 CECC Report
updates the 2009 version, it does not provide compelling
evidence of a material change in the law or its enforcement.
See In re S-Y-G-, 24 I. & N. Dec. at 257 (“[A] new report or a
new law is not evidence of changed conditions without convincing
evidence that the prior version of the law was different, or was
differently enforced, in some relevant and material way.”).
In its decision, the Board observed that these CECC reports
indicate that “administrative punishments are used to enforce
the family planning policy.” J.A. 5. Indeed, both the 2009 and
2010 CECC Reports discuss the continuation of population
planning efforts, and specifically the impact on women, but no
evidence in the 2010 CECC Report suggests that the family
planning policies in Fujian Province are differently enforced
against men in any relevant way that would undercut the
continued reliability of the 2007 Profile.
Second, Lin submitted the affidavit of Dr. Flora Sapio as
“‘countervailing’ evidence of country conditions and flaws in
the [2007 Profile].” Appellant’s Br. at 38 (quoting Albasic v.
Mukasey, 547 F.3d 78, 87 n.6 (2d Cir. 2008)). The BIA
explicitly considered Dr. Sapio’s affidavit in its decision,
27
rejecting it because it speculated about the State Department’s
motivations in drafting the 2007 Profile and was not based upon
personal knowledge. J.A. 6. Indeed, “the BIA’s rejection of
Dr. Sapio’s critique has been discussed in at least nineteen
appellate cases from six circuits . . . and not once has a court
of appeals found the BIA’s rejection of Dr. Sapio’s report to
constitute an abuse of discretion.” Ni v. Holder, 715 F.3d 620,
625 (7th Cir. 2013). Here, as in Ni, the BIA acted within its
discretion when it disregarded Dr. Sapio’s report after
considering Dr. Sapio’s arguments and finding her critique of
the 2007 Profile unpersuasive. See Ni, 715 F.3d at 625.
Therefore, as has every other circuit to consider the Sapio
Affidavit, we too find that the BIA did not err in finding it
incredible. Accordingly, the BIA did not abuse its discretion
in determining that Lin’s evidence was not sufficient to
discredit the findings in the 2007 Profile.
V.
For the foregoing reasons, Lin’s petition for review is
DENIED.
28