Diang Lin v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 05 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DIANG LIN, AKA Qiang Lin, No. 11-73322
Petitioner, Agency No. A070-122-451
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 6, 2013**
Pasadena, California
Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.
Diang Lin petitions for review of the Board of Immigration Appeals’ (BIA)
decision denying his motion to reopen proceedings. We grant the petition.
Because the parties are familiar with the facts and history of the case, we need not
recount them here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
To show grounds for reopening, Lin must establish prima facie eligibility for
asylum. See Feng Gui Lin v. Holder, 588 F.3d 981, 986 (9th Cir. 2009). To show
prima facie eligibility, Lin must establish that his violation of China’s “family
planning policy would be punished in the local area in a way that would give rise
to an objective fear of future persecution.” See In re J-H-S-, 24 I. & N. Dec. 196,
199 (BIA 2007). Lin argues that he satisfied this standard because he and his wife
have two children and that, “if we are sent back to China, one of us will be forced
to undergo sterilization, and we will both be heavily fined.” Lin relies on a long
list of documents to make his case, including many Chinese government
documents and the 2009 and 2010 Annual Reports of the Congressional-Executive
Commission on China (CECC).
The BIA did not explain its decision that Lin had not established a prima
facie case of eligibility for asylum. See Movsisian v. Ashcroft, 395 F.3d 1095,
1098 (9th Cir. 2005) (“We have long held that the BIA abuses its discretion when
it fails to provide a reasoned explanation for its actions.”). Specifically, the BIA
found that Lin had presented insufficient evidence to show a likelihood of forced
sterilization, but it did so without explaining why the CECC reports, in addition to
the Fujian Province documents, were insufficient to make the requisite showing.
Indeed, the BIA’s decision selectively quotes from the CECC reports in reaching
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its conclusion, leaving out the fact that these reports also speak explicitly about the
current Chinese practice of forcibly sterilizing Chinese citizens. See, e.g.,
Congressional-Executive Commission on China, Annual Report 116 (2010)
(“Violators of the policy are routinely punished with fines, and in some cases
subjected to forced sterilization, forced abortion, arbitrary detention, and torture.”
(emphasis added)); see also Ji Cheng Ni v. Holder, 715 F.3d 620, 627 (7th Cir.
2013) (“Why the BIA found the Reports’ discussion of certain ‘administrative
punishments’ and coercive tactics to be persuasive, but found the Reports’
discussion of forced sterilizations and abortions in Fujian Province not to be
persuasive, however, remains a mystery.”).
In addition, to the extent the BIA rejected Lin’s government documents
solely because they were not authenticated pursuant to regulation, this was error.
See Vatyan v. Mukasey, 508 F.3d 1179, 1182-84 (9th Cir. 2007) (rejecting the
proposition that foreign government documents must be authenticated by official
certification pursuant to 8 C.F.R. § 287.6 and holding that a document can be
authenticated by any evidence sufficient to support a finding that the item is what
the proponent claims it is). We remand to the BIA so that it may more thoroughly
explain its decision. Specifically, it should consider and explain why the 2009 and
2010 CECC reports and Lin’s Fujian Province documents were insufficient to
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establish eligibility for asylum, or failing which, to deem Lin to have established a
prima facie case of eligibility for asylum. See, e.g., Answer to Robert Lin’s
Inquiry: “Family Planning Policy with Respect to People Returning to China from
Overseas,” FJJSW.gov.cn (May 6, 2008),
www.fjjsw.gov.cn:8080/html/5/383/9626_200856322.html (Fujian province
government website document stating that “sterilization is mandatory” for violators
of the one-child policy, with exceptions not relevant to Lin); see also Qiu Yun
Chen v. Holder, 715 F.3d 207, 212 (7th Cir. 2013) (faulting the BIA for failing to
address this same document).
PETITION GRANTED.
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