Lin v. Attorney Gen. U.S.

GUANG LIN, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

No. 18-2959

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued on June 12, 2019

August 23, 2019

NOT PRECEDENTIAL

On Petition for Review of a Decision and Order of the Board of Immigration Appeals

(BIA-1 : A098-694-619)

Immigration Judge: Charles M. Honeyman

BEFORE: HARDIMAN, PORTER, and COWEN, Circuit Judges

Theodore N. Cox (argued)

Law Office of Theodore N. Cox

325 Broadway

Suite 201

New York, NY 10007

Attorney for Petitioner

Gregory A. Pennington, Jr.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Robert D. Tennyson, Jr. (argued)

United States Department of Justice

Office of Immigration Litigation

Room 2043

450 5^th Street, N.W.

P.O. Box 878

Washington, DC 20001

Attorneys for Respondent

OPINION^*

COWEN, Circuit Judge.

Guang Lin petitions for review of a decision and order by the Board of Immigration Appeals ("BIA") denying her motion to reopen. Because the BIA failed to meaningfully consider the evidence presented by Lin, we will grant her petition for review, vacate the BIA's order, and remand for further proceedings.

I.

Lin and her husband, Mou Zeng Chen, are natives and citizens of the People's Republic of China. Lin entered the United States without being admitted or paroled, and Chen entered without valid entry documents. Conceding removability, Lin filed an application for asylum, withholding of removal, and relief under the Convention AgainstTorture ("CAT"), with Chen as a rider on her application. At her June 13, 2008 hearing, Lin testified that, since her arrival, she had given birth to three United States citizen children and that she feared she would be forcibly sterilized for violating China's family planning policies if returned. At the conclusion of the hearing, the Immigration Judge ("IJ") denied her application for relief. Dismissing Lin's administrative appeal on November 13, 2009, the BIA agreed with the IJ that Lin failed to establish that her fear of coercive sterilization was objectively reasonable. On November 4, 2010, this Court denied the petition for review, concluding that "Petitioners have not shown that the record compels a finding that Lin has an objectively reasonable fear of future persecution." Lin v. Att'y Gen., 400 F. App'x 656, 658 (3d Cir. 2010).

In 2018, Lin filed a motion to reopen with the BIA. She argued that "[n]ew and previously unavailable evidence demonstrates the heightened enforcement of the family planning policy in Respondent's home locale, Lianjiang County, Fujian Province, and the clear likelihood that coercion will be used against Ms. Lin if she is removed to China." (AR37.) The BIA denied her motion on the grounds that Lin "has not demonstrated materially changed country conditions in China since her proceedings in 2008 to warrant an exception to the time limit for her motion to reopen, and she has not established her prima facie eligibility for the relief she seeks upon reopening." (AR4 (citing Pilumi v. Att'y Gen., 642 F.3d 155, 161 (3d Cir. 2011); In re S-Y-G-, 24 I. & N. Dec. 247, 247 (BIA 2007)).)

II.

"[T]he BIA has 'a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim.' This duty is heightened for motions to reopen based on changed country conditions." Liem v. Att'y Gen., 921 F.3d 388, 395 (3d Cir. 2019) (quoting Zheng v. Att'y Gen., 549 F.3d 260, 268 (3d Cir. 2008)). While it need not discuss every piece of evidence presented, the BIA may not ignore evidence favorable to the petitioner. See, e.g., id. at 395; Zhu v. Att'y Gen., 744 F.3d 268, 278 (3d Cir. 2014). "'To [show that it] fulfill[ed] this requirement, the BIA must [have] provide[d] an indication that it considered such evidence, and if the evidence is rejected, an explanation as to why it was rejected.'" Liem, 921 F.3d at 395 (quoting Zhu, 744 F.3d at 278).

We "must determine if the BIA meaningfully considered the evidence and arguments [Lin] presented."¹ Zhu, 744 F.3d at 278 (citing Zheng, 549 F.3d at 266). We determine that the BIA did not satisfy its duty of meaningful consideration. Lin's voluminous evidence can be broken down into three basic categories: (1) various documents dating from 2009 and 2010 from Lin's home county (Lianjiang County) and other localities in her home province (Fujian Province) purportedly describing what she called in her motion "new campaigns to enforce predetermined targets for family planning procedures" (AR45 (addressing Exhibits D-E, G-R (AR144-AR171, AR179-AR330))); (2) selected pages from the 2010-2017 reports by the Congressional-ExecutiveCommission on China ("CECC") (Exhibits B, V, X-BB, DD (AR107-AR129, AR363-AR391, AR397-AR482, AR492-AR514)), 2012 and 2016 reports from the Immigration and Refugee Board of Canada ("IRB") (Exhibits U, KK (AR350-AR362, AR532-AR535)), and excerpts from the 2015 State Department country report (as well as two State Department responses to requests under the Freedom of Information Act and the 2008 country report) (Exhibits S-T, CC (AR331-AR349. AR483-AR491)); and (3) various media reports and statements by human rights organizations regarding China's family planning policies and practices (Exhibits C, W, EE-JJ (AR130-AR143, AR392-AR396, AR515-AR531)). In Zhu, we concluded that the BIA did not meaningfully consider many of the same documents, including documents from Zhu's (and Lin's) home county and other towns and counties within their home province purportedly describing population campaigns to meet sterilization and abortion quotas as well as the 2010 CECC report addressing coerced abortions and sterilization, 744 F.3d at 270-79. Reaching the same conclusion here, "we will remand for the BIA to meaningfully review the evidence," id. at 279 (footnote omitted).

After summarizing Lin's arguments and identifying the documents submitted in support of her motion to reopen, the BIA determined that the evidence (specifically the CECC and State Department reports) reflects that social compensation fees, loss of job, promotion, and educational opportunities, expulsion from the party, destruction of property, and other administrative measures have long been used to enforce family planning policies. Missing from the BIA's enumeration was any reference to the incidents of coerced or forced sterilization and abortion (including in Fujian Province)described in the CECC, State Department, and IRB documents as well as the media reports and statements by human rights organizations. In Zhu, the BIA similarly "found that the 2009 and 2010 [CECC reports], the 2007 Profile, and State Department reports from 1994, 1995, 1998, 2004, and 2005 indicated that 'social compensation fees, job loss or demotion, loss of promotion opportunity, expulsion from the party, destruction of property, and other administrative punishments are used to enforce [China's] family planning policy.'" Zhu, 744 F.3d at 277 (footnote omitted) (citation omitted). "The BIA then concluded that this evidence 'is not sufficient to demonstrate that the respondent will be subjected to sterilization.'" Id. (citation omitted). We determined that this explanation was insufficient:

While the BIA recited a number of social and economic actions that China takes to enforce its population control policies, it seemingly ignored statements in the 2009 and 2010 CECC Reports concerning "forced abortions" and "coerced abortions and sterilizations." Like our sister circuit, who criticized an identical BIA conclusion about enforcement methods, we too question "[w]hy the BIA found the [CECC] Reports discussion of certain 'administrative punishments and coercive tactics to be persuasive, but [apparently] found the Reports' discussion of forced sterilizations and abortions in Fujian Province not to be persuasive. . . .'" [Ni v. Holder, 715 F.3d 620, 627 (7th Cir. 2013)].

Id. at 277-78 (footnotes omitted) (citations omitted). In Liem, we recently found this sort of cursory language to be insufficient, see, e.g., 921 F.3d at 396 ("The BIA cited to seven of the thirty-five exhibits submitted by Liem in support of his claim of materially changed country conditions. Based on those seven exhibits, but without even a cursory review or description of them, it determined that 'conditions [for Chinese Christians] have been a longstanding problem . . . in Indonesia, rather than materially changedconditions or circumstances.'" (alterations in original)). In any event, the BIA still failed to address the practice of coerced sterilizations and abortions.

Noting that the evidence indicates that alleged incidents of coercion to meet birth targets in some areas have been a longstanding concern, the BIA stated that the reports of renewed efforts to enforce family planning policies do not establish a significant change in conditions. At best, it reasoned, the reports reflect the fact that pressures to enforce the policies vary from locale to locale and fluctuate incrementally from time to time. Focusing specifically on Lianjiang County, the BIA concluded that the documents fail to establish a material change in conditions in Lin's locality:

The respondent is from Lian Jiang County, Fujian Province. The documents regarding the local enforcement in her home area reflect that residents there have been subject to the longstanding family planning policies, and that initiatives to promote compliance have been undertaken from time to time which included the distribution of family planning propaganda, scheduled check-ups, increased surveys, assessments of townships according to rates of social child support fee collections, IUD insertions, sterilizations, and other birth control measures, as well as campaigns to focus on the use of home visits, propaganda, and long-term birth control measures. See, e.g., Exhs. H-I; Exh P; Exh. U at 2.2.2 and 3.6 [(AR188-AR206, AR293-AR306, AR353-AR354, AR537-AR358.)] They do not

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