Lin v. Holder

771 F.3d 177

WANRONG LIN, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 13–1016.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 16, 2014.

Decided: Nov. 14, 2014.

ARGUED:Theodore N. Cox, New York, N.Y., 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.

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.

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 evidencehe 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 Fed.Appx. 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 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 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 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 Fed.Appx. 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 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 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.

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, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir.2009); see also8 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 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...