Yong Xiu Lin v. Holder , 754 F.3d 9 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2076
YONG XIU LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Jeffrey E. Baron and Baron & Shelkin, P.C. on brief, for
petitioner.
Carmel A. Morgan, Trial Attorney, Office of Immigration
Litigation, Civil Division, Stuart F. Delery, Assistant Attorney
General, and Shelley R. Goad, Assistant Director, on brief, for
respondent.
May 14, 2014
LYNCH, Chief Judge. Petitioner Yong Xiu Lin ("Xiu Lin"),
a native and citizen of China, seeks review of the Board of
Immigration Appeals' (BIA) denial of her second motion to reopen
removal proceedings based on changed country circumstances. That
motion was filed more than seven years after the denial of Xiu
Lin's first untimely motion to reopen and almost twelve years after
she was first ordered removed to China. The BIA did not abuse its
discretion in concluding that Xiu Lin's second motion to reopen is
both untimely and number-barred under 8 C.F.R. § 1003.2(c)(2) and
not subject to any exceptions thereto. We deny the petition for
review.
I.
A. Prior Proceedings
Xiu Lin came to the United States on or about June 7,
2000, arriving at Chicago O'Hare International Airport without a
visa or other valid entry document. Xiu Lin was detained, and the
Immigration and Naturalization Service issued her a Notice to
Appear on June 23, 2000, charging her as removable for having
entered the United States through fraud or willful
misrepresentation of a material fact, 8 U.S.C. § 1182(a)(6)(C)(i),
and without a valid entry document, id. § 1182(a)(7)(A)(i)(I). On
July 6, 2000, Xiu Lin was released from custody to go live with her
husband's aunt in New York, New York.
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On September 5, 2000, Xiu Lin applied for asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT), saying that she opposed China's population control
policy and would be forced to undergo involuntary sterilization if
she were returned to China. Specifically, she said she was fined
for getting married at nineteen, when she was younger than the
legal marriage age in China, in December 1994. She also said she
was forced to undergo insertion of an intrauterine device (IUD)
three months after her son was born in China on October 6, 1995.
The IUD, however, "dropped out on its own" and, unbeknownst to her,
she became pregnant a second time in 1998. When she went to a
doctor's appointment, she was forced to undergo an abortion in
March 1998. Xiu Lin's application also said that Chinese officials
had damaged her home.
An Immigration Judge (IJ) conducted a hearing on Xiu
Lin's application in New York on September 10, 2001, at which both
Xiu Lin and her husband, Xin Ren Chen (Ren Chen),1 testified. Xiu
Lin testified that five or six local Chinese authorities had used
hammers to smash several windows and doors on the first floor of
her house some time in July 1996 because she had not paid the
government a fine for getting married and having a child too early.
1
At the hearing, Xiu Lin testified that her husband left
China in 1998 and had never appeared before an IJ. Ren Chen said
that he had not applied for asylum and that if his wife were to
return to China he would stay in the United States.
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She said that her husband was not home when the officials came,
although her husband later testified that he was there when the
local authorities damaged their house. Her husband also testified
that the damage occurred in January, not July, of 1996. Both Xiu
Lin and Ren Chen agreed, however, that they paid the fine on July
11, 1996.
Xiu Lin also said she had black-and-white photos, which
Ren Chen had taken a few days after the damage occurred as proof.
The IJ noted that the photos were in color, not black and white,
and that they showed damage to the second floor although Xiu Lin
had said it was only to the first floor. Xiu Lin also testified
that her house in China was across the street from buildings,
whereas her husband had said they lived across from a vacant lot.
As to the forced abortion, Xiu Lin said that on March 15,
1998, a doctor discovered she was pregnant at a routine exam to
check her IUD. She was then taken to ChangLe County City Hospital,
where she received an injection at her waist right before a new IUD
was placed in her. When asked about the abortion procedure, she
said only that she delivered the fetus in the bathroom a few hours
later. When asked about how she was able to deliver the fetus when
a new IUD device had already been inserted, Xiu Lin changed her
testimony and said the IUD device was inserted several days after
the abortion. She believes she was two months' pregnant at the
time.
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Xiu Lin also testified that she had called her husband
the day of the abortion to tell him what had happened. She said he
was waiting for her with their son at her mother's house when she
returned that afternoon. Ren Chen, in contrast, said that Xiu Lin
did not call him until the night of the abortion to tell him what
had happened. He said he did not see her until the day after the
abortion and that they met at their own home, not Xiu Lin's
mother's house.
Xiu Lin said that she gave birth to a daughter on August
12, 2001, in Boston, Massachusetts, where her parents live as
lawful permanent residents.
On September 10, 2001, the IJ found that Xiu Lin was not
credible. In an oral opinion, the IJ first noted that Xiu Lin's
testimony was very "general and meager" and lacked detail on
important aspects of her asylum claim. The IJ doubted that the
forced abortion actually occurred, as Xiu Lin was not able to
describe the procedure and knew very few specifics about the actual
operation. The IJ also went through the numerous inconsistencies
between Xiu Lin and Ren Chen's testimony regarding both the damage
to their home and the details about what happened the day of Xiu
Lin's forced abortion. When given the opportunity to explain the
major contradictions, Xiu Lin had said only that she had a tough
night and had given the wrong answer.
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The IJ also doubted the authenticity of the documents
from China in Xiu Lin's application. In particular, he did not
believe that the photos of a damaged house depicted Xiu Lin's home
in China. He also questioned the authenticity of an "abortion
certificate," which Xiu Lin said was proof of the forced abortion.
The IJ explained that State Department reports said Chinese
hospitals issued certificates to patients that requested them in
order to get sick leave after voluntary abortions but that the
certificates were not typically issued after forced abortions.
After considering the record evidence and finding Xiu Lin
not credible, the IJ denied Xiu Lin's request for asylum,
withholding of removal, and CAT relief and ordered her removed to
China.2
On February 19, 2002, Xiu Lin requested that the BIA
order another merits hearing because part of the hearing was not
transcribed. On August 22, 2002, the BIA noted that one of the
tape recordings of the hearing was blank and remanded the case to
the Immigration Court with instructions that it take "necessary and
appropriate" steps to prepare a complete transcript of the
proceedings, including a new hearing if necessary. On September
16, 2002, the IJ changed the venue of the proceedings to Boston,
2
Xiu Lin had conceded that she was removable for having
entered without a valid entry document under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). The IJ found there was insufficient
evidence to support the additional fraud charge against Xiu Lin.
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Massachusetts because Xiu Lin had moved from New York City to
Malden, Massachusetts in July 2002.
On September 30, 2003, the parties convened before a new
IJ in Boston. They stipulated that the facts stated in the
original oral decision accurately reflected what was said during
the merits hearing, so there was no concern that the oral decision
was inconsistent with the contents of the blank tape. As a result,
the IJ determined that another merits hearing was not necessary and
re-issued the original decision denying Xiu Lin's application for
relief from removal. Xiu Lin appealed to the BIA, and on February
1, 2005, the BIA affirmed the IJ's decision, including the adverse
credibility finding, and dismissed the appeal. This court denied
Xiu Lin's petition for review on November 23, 2005, stating that
the IJ's findings that Xiu Lin was not credible and had presented
suspect documentary evidence were amply supported by the record.
Yuan3 v. Gonzales, 155 F. App'x 7 (1st Cir. 2005).
On March 20, 2006, Xiu Lin filed her first motion to
reopen the removal proceedings, stating that her father had become
a U.S. citizen and had filed an immigrant visa petition on her
behalf. On May 16, 2006, the BIA denied Xiu Lin's motion as
untimely because it was not filed within ninety days of the BIA's
3
The full caption refers to the petitioner as "Xiu Li Yuan
a/k/a Yong Xiu Lin."
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February 1, 2005 decision dismissing her appeal. See 8 C.F.R.
§ 1003.2(c)(2). That decision is not before us.
B. Second Motion to Reopen
On May 24, 2013, more than seven years after her first
untimely motion, Xiu Lin moved the BIA to reopen a second time.
She argued there was new material evidence not available during her
2001 removal proceedings showing that China currently enforces its
one-child policy using "force and extreme coercion tantamount to
force." She said this ramped-up, coercive enforcement made it
probable that she would be subjected to sterilization in China
because she has three children in violation of the one-child
policy: a son born in China in 1995, and two daughters born in
Boston in 2001 and 2005. As a result, she asked the BIA either to
exercise its discretion to sua sponte reopen proceedings, 8 C.F.R.
§ 1003.2(a), or to find her excused from complying with the number
and time limits on motions to reopen based on a showing of changed
circumstances in China, see id. § 1003.2(c)(3)(ii).
As evidence, Xiu Lin submitted an unsigned and unsworn
letter from the Family Planning Office in her hometown of ChangLe
City, Fujian Province, which was allegedly sent to Xiu Lin's sister
in China. The letter said Xiu Lin would be sterilized if she
returned to China with her American-born children. She also
submitted letters from two women who said they were sterilized when
they returned to China after giving birth to children abroad. Xiu
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Lin's evidence also included an Amnesty International report and
news articles documenting the mass sterilization of people in
Puning County, Guangdong Province, China in April and September
2010 to meet local birth control quotas. These reports did not
address changes to enforcement of the one-child policy in Fujian
Province, where Xiu Lin is from.
The BIA denied Xiu Lin's motion to reopen in a detailed
decision on July 31, 2013. The BIA found that Xiu Lin had not
shown that the unauthenticated documents from China were genuine or
reliable. Relatedly, the BIA found there was insufficient evidence
that Xiu Lin would likely suffer mistreatment or economic harm
amounting to persecution based on the birth of her son in China and
two American-born daughters. Finally, the BIA concluded Xiu Lin's
evidence was insufficient to establish a material change in country
conditions so as to exempt her second motion from the requirements
that she file only one motion to reopen within ninety days of the
BIA's 2005 final decision in her removal proceedings. It also
declined to sua sponte reopen her proceedings.
II.
Motions to reopen are disfavored given the public
interest in the prompt conclusion of removal proceedings. Perez v.
Holder, 740 F.3d 57, 61 (1st Cir. 2014). As a result, the BIA has
considerable latitude in deciding those motions. See Perera v.
Holder, ___ F.3d ___, 2014 WL 1613670, at *3 (1st Cir. Apr. 22,
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2014). We review the BIA's decision under the "highly deferential"
abuse of discretion standard. Id. (quoting Roberts v. Gonzales,
422 F.3d 33, 35 (1st Cir. 2005)). We uphold the BIA's decision
"unless the complaining party can show that the BIA committed an
error of law or exercised its judgment in an arbitrary, capricious,
or irrational way." Perez, 740 F.3d at 61-62 (quoting Liu v.
Holder, 727 F.3d 53, 56 (1st Cir. 2013)).
It is undisputed that Xiu Lin's second motion to reopen
is both number-barred and untimely. 8 C.F.R. § 1003.2(c)(2).
"[A]n exception to these bars exists if the . . . motion is based
on 'previously unavailable information showing material changed
circumstances' and the petitioner's proof makes out 'a prima facie
case sufficient to ground a claim of eligibility for the underlying
substantive relief.'" Perera, 2014 WL 1613670, at *3 (quoting
Gasparian v. Holder, 700 F.3d 611, 613 (1st Cir. 2012)). Xiu Lin
challenges several aspects of the BIA's determination that she has
not met the "heavy burden" of proving materially changed
circumstances. Zhu v. Holder, 622 F.3d 87, 92 (1st Cir. 2010).
She first argues that the BIA did not address her
argument that the use of coercive methods to force sterilizations
in Puning County, Guangdong Province, in 2010 showed "there is no
longer a national prohibition [on] the use of force in family
planning matters in China" and so demonstrated changed
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circumstances. The argument lacks merit, as the BIA addressed and
rejected Xiu Lin's argument, saying:
Her claim that there have been reports of some
incidents of coercion to meet birth targets in
some areas of China, contrary to the national
policy, is not sufficient to establish that
she will likely suffer mistreatment amounting
to persecution based on the birth of her first
child in China and two other children in the
United States.
The fact that the BIA addressed Xiu Lin's broader claim of coerced
sterilizations occurring "in some areas of China," rather than a
subset of that argument based on specific events in Puning County,
does not matter. We have said that the BIA "is not required to
dissect in minute detail every contention that a complaining party
advances." Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007).
Nor need the BIA discuss each piece of evidence proffered, Wu v.
Holder, 737 F.3d 829, 833 (1st Cir. 2013), although the BIA here
explicitly acknowledged the media reports that Xiu Lin had
submitted as evidence.
Xiu Lin's evidence as to forced sterilizations in Puning
County showed only isolated crackdowns of enforcement of China's
one-child policy in a single county of China, located in Guangdong
Province, not Xiu Lin's native Fujian Province. Xiu Lin does not
suggest that she would be required to live in Guangdong Province.
Rather, she argues that evidence as to coercive sterilizations in
Puning County, Guangdong Province is material because both Puning
and her native county are rural areas and so likely to have similar
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enforcement policies. However, Xiu Lin points to no evidence that
enforcement practices are the same across different rural counties
and provinces in China. See Wu, 737 F.3d at 834 (explaining
petitioner's burden to "link general reports of ongoing persecution
with his own individualized risk of future persecution"). If
anything, the evidence in support of Xiu Lin's motion undermines
her argument, as it emphasizes the extent to which local rules
implementing China's population control policy vary across
provinces.
Under these circumstances, the BIA did not abuse its
discretion in concluding that Xiu Lin's evidence as to coercion in
"some areas of China" was insufficient to establish either a
likelihood of persecution or materially changed circumstances. See
Smith v. Holder, 627 F.3d 427, 434 (1st Cir. 2010); see also Li v.
Att'y Gen. of U.S., 443 F. App'x 721, 723-24 (3d Cir. 2011) (per
curiam) (finding no abuse of discretion in BIA's conclusion that
evidence of coercive sterilizations in Puning County, Guangdong
Province were not material to a showing of changed conditions in
petitioner's native Fujian Province (citing Yuan v. Att'y Gen. of
U.S., 642 F.3d 420, 426 (3d Cir. 2011))).
Xiu Lin next attacks the BIA's conclusion that she did
not "sufficiently authenticate[]" documents from China and so has
failed to show they are of "sufficient evidentiary worth to support
reopening these proceedings." None of the documents were
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authenticated pursuant to the procedure set forth in 8 C.F.R.
§ 1287.6(b). While we have previously held that this regulation
"'offers only a method--not the exclusive method--for
authenticating a record in an asylum case,' and that noncompliance
with § 1287.6 'is not an absolute bar to the admissibility of a
foreign document in an asylum hearing,'" Zheng v. Holder, 502 F.
App'x 13, 16 (1st Cir. 2013) (quoting Jiang v. Gonzales, 474 F.3d
25, 29 (1st Cir. 2007)), Xiu Lin has made no attempt to employ any
alternative avenue of authentication. Her failure to do so looms
large due to the IJ's earlier finding that she had submitted false
documents in her original application, including a fake "abortion
certificate" purportedly issued by a Chinese hospital.
Relatedly, Xiu Lin's criticism of the BIA's consideration
of her "previous lack of candor" is frivolous. The IJ had found
not only that her testimony at the original merits hearing was
unbelievable but also that some of the documents she had submitted
were false. We have repeatedly said that credibility findings can
inform the evidentiary weight the BIA ascribes to unauthenticated
documents in a later, related proceeding, as they did in this case.
Zhu, 622 F.3d at 92 (saying adverse credibility finding supports
BIA's decision to accord limited evidentiary value to
unauthenticated document); Tsai v. Holder, 505 F. App'x 4, 8 (1st
Cir. 2013) (same).
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As to the unsworn and unsigned document purporting to be
from the "ChangLe City HangCheng Street Family Planning Office,"
Xiu Lin claims that she sufficiently authenticated it through a
letter from her sister in China. Not so. Especially given the
prior finding that Xiu Lin was not credible, the BIA was within its
discretion to conclude that "[t]he unsworn statement of [Lin's
sister] . . . appears to be created for the purpose of litigation,
and is from an interested witness not subject to cross-
examination." See Zheng v. Mukasey, 546 F.3d 70, 72 (1st Cir.
2008) (finding, where IJ had previously determined the petitioner
was not credible, that "[a]bsent substantiation, self serving
affidavits from petitioner and her immediate family are of limited
evidentiary value"). Nor was the BIA required to accept the
ChangLe Family Planning Office seal on the document as adequate
proof of its authenticity. See Zheng v. Holder, 502 F. App'x 13,
16 (1st Cir. 2013) (per curiam) (holding BIA did not abuse
discretion in according less weight to document purporting to be
from a Village Committee of a Chinese province where there was no
evidence that seal on document was genuine).
Xiu Lin also complains that the BIA erred in discounting
the relevance of documents taken from other people's asylum
applications, which include letters from two women who said they
were forced to undergo sterilizations in Fujian Province after
having children abroad. The BIA said the women were not similarly
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situated to Xiu Lin. Neither of the women had been sterilized
after returning to China with children born in the United States.
See Chen v. Holder, No. 12-1883, 2013 WL 7083273, at *2 (1st Cir.
June 28, 2013) (concluding that "declarants simply were not
similarly situated" to petitioner under similar circumstances).
The women's statements were unsworn, and their "sterilization
certifications" were unauthenticated. See Chen v. Holder, 675 F.3d
100, 106-07 (1st Cir. 2012) (holding that BIA had discretion to
discount evidentiary value of comparable documents that were
unauthenticated). In addition, the two women claimed to have
undergone abortions in July 2004 and August 2008, times during
which we have noted that family planning enforcement efforts in
Fujian Province were "lax" and "uneven." See, e.g., Zheng, 546
F.3d at 73 (quoting In re J-W-S, 24 I. & N. Dec. 185, 193 (B.I.A.
2007)). For all these reasons, the BIA did not abuse its
discretion in finding this anecdotal evidence was insufficient to
support reopening Xiu Lin's removal proceedings.
Finally, Xiu Lin argues the BIA erred in concluding that
she has not shown economic harm amounting to persecution.
"[E]conomic disadvantage must be severe and deliberate to rise to
the level of persecution." Wu v. Holder, 741 F.3d 211, 215 (1st
Cir. 2013). Xiu Lin asserts she has proven she will suffer a
ruinous fine amounting to economic persecution if she returns to
China. However, she points only to a 2010 Human Rights Report on
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China, which says that fees for having unapproved children "can
reach 10 times a person's annual disposable income." (emphasis
added). Xiu Lin's other evidence says only that fines are imposed
on violators of the one-child policy but does not address the
severity of those fines. The BIA was neither arbitrary nor
irrational in concluding this evidence was inadequate to
demonstrate economic persecution.4
III.
For the reasons stated, the petition for review is
denied.
4
As a result, we need not address Xiu Lin's other argument
as to this economic persecution claim.
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