Yan Lin v. Attorney General United State , 678 F. App'x 69 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3851
___________
YAN PING LIN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Immigration Judge: Annie S. Garcy
(Agency No. A077-353-997)
____________________________________
Submitted under Third Circuit LAR 34.1(a)
on October 27, 2016
Before: FISHER, ∗ VANASKIE, and KRAUSE, Circuit Judges
(Opinion filed: February 7, 2017)
O P I N I O N ∗∗
KRAUSE, Circuit Judge
∗
Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit,
assumed senior status on February 1, 2017
∗∗
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
___________
Yan Ping Lin, a native and citizen of the People’s Republic of China, petitions for
review of a decision by the Board of Immigration Appeals (BIA) denying her motion to
reopen her removal proceedings. Because the BIA acted within its discretion in denying
the motion, we will deny her petition.
I. Background
Lin was born in Fuzhou City, in the Fujian Province of China in 1980. She
entered the United States in 2001 using a false Portuguese passport, and she was
immediately charged as removable and referred to an Immigration Judge (IJ). Lin
submitted an application for asylum, asserting a fear of persecution on account of her
association with the Falun Gong religious group, but the IJ found her testimony at a
January 9, 2002 hearing not credible and denied her request for relief. The BIA affirmed
the IJ’s decision and removal order on January 22, 2003.
Nevertheless, Lin remained in the United States and had two children. She also
reports that she started attending church in February 2015 and became a Christian. On
August 20, 2015, Lin filed a motion with the BIA to reopen her immigration proceedings
and consider her application for asylum, withholding of removal, and protection under
the Convention Against Torture based on a fear of persecution on account of her new
religious faith and her violations of China’s one-child family planning policy if she were
removed to China. Lin acknowledged that her motion to reopen was time-barred under 8
C.F.R. § 1003.2(c)(2), which provides that a petitioner must file such a motion “no later
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than 90 days after the date on which the final administrative decision was rendered in the
proceeding sought to be reopened.” However, she claimed that she qualified for an
exception under 8 C.F.R. § 1003.2(c)(3)(ii), which allows for reopening after the 90-day
window has elapsed if there is evidence of “changed circumstances arising in the country
of nationality ... if such evidence is material and was not available and could not have
been discovered or presented at the previous hearing.” See also 8 U.S.C. §
1229a(c)(7)(C)(ii).
She submitted over 2,000 pages of documents in support of her motion, including
an asylum application, affidavits, birth and marriage certificates, photographs, excerpts of
reports from U.S. government sources and non-governmental organizations, news
articles, congressional testimony, and publications from Chinese websites and local
government agencies. Nevertheless, on November 2, 2015, the BIA denied her motion.
This timely petition for review followed.
II. Discussion 1
Lin argues that the BIA erred in failing to meaningfully consider the evidence she
submitted regarding changed country conditions since the time of her 2002 hearing.
Specifically, she argues that she submitted evidence sufficient to demonstrate that
coercive sterilization as a means of enforcement of China’s family planning policies has
materially increased in her hometown, and that harassment of Christians attending house
1
The BIA had authority to review Lin’s motion under 8 C.F.R. § 1003.2(c), and
we have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a).
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churches in China has materially worsened. We conclude that the BIA adequately
considered the evidence Lin presented and therefore did not abuse its discretion in
denying the motion. 2
A. Standard of Review
The decision to grant or deny a motion to reopen is discretionary, and our review
of such a decision is therefore “highly deferential.” Guo v. Ashcroft, 386 F.3d 556, 561–
62 (3d Cir. 2004). We will only disturb the BIA’s decision as an abuse of discretion if it
is “arbitrary, irrational, or contrary to law.” Id. at 562. Similarly, we review the Board’s
findings of fact in support of such a decision under a “deferential substantial evidence
standard.” Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). The BIA has “a duty to
explicitly consider any country conditions evidence submitted by an applicant that
materially bears on his claim.” Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008).
The Board “must provide an indication that it considered such evidence, and if the
evidence is rejected, an explanation as to why it was rejected.” Zhu v. Att’y Gen., 744
F.3d 268, 272 (3d Cir. 2014). At the same time, however, the Board is not required to
“expressly parse or refute on the record each individual argument or piece of evidence
offered by the petitioner,” and it may consider proffered evidence “in summary fashion
2
The BIA concluded both that Lin failed to demonstrate materially changed
country conditions and that she failed to establish her prima facie eligibility for the relief
sought. The BIA may deny a motion to reopen on either of these bases. I.N.S. v. Abudu,
485 U.S. 94, 104 (1988). Because we affirm the BIA’s decision on the basis of its
conclusion as to changed country conditions, we need not address whether the BIA
correctly concluded that Lin failed to carry her burden of making a prima facie showing
of eligibility for relief.
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without a reviewing court presuming that it has abused its discretion.” Zheng, 549 F.3d
at 268.
B. Family Planning
Lin first argues that the BIA failed to adequately consider evidence of local
population campaigns and erred in finding that there had been no meaningful change in
enforcement of China’s family planning policies since the time of her hearing. Contrary
to Lin’s arguments, the BIA adequately considered the evidence she offered and
reasonably concluded that the evidence does not reflect a change in relevant country
conditions sufficient to warrant reopening.
Lin argues that the Board failed to conduct an individualized review of her motion,
as evidenced by its use of “boilerplate language” that it has also used in decisions
denying relief in other cases. Appellant’s Br. 16–18. In considering whether a BIA
decision reflects meaningful consideration of the evidence presented, we look skeptically
at the repetitive use of nearly identical language. See Zhu, 744 F.3d at 268 n.1. But
while the opinion here includes language similar to that used in other cases, 3 we are
satisfied that it reflects an adequate review. For example, the BIA notes that it compared
“past and current conditions in China faced by parents of more than one child”; identifies
3
For example, the BIA stated in its opinions underlying both Zhu, 744 F.3d at 277
and Ni v. Holder, 715 F.3d 620, 627 (7th Cir. 2013) 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.” This is nearly the exact phrasing used by the BIA in this case, except
that it now adds the potential loss of “education opportunity.” App. Vol. I, 4.
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the State Department Reports from 1994, 1995, and 1998 as relevant to its assessment of
past conditions at the time of Lin’s hearing in 2002; and references a long list of
documents that it credited as reflective of current conditions, including reports of the U.S.
State Department and U.S. Congressional-Executive Commission on China (CECC), as
well as reports that Lin submitted from the relevant Chinese family planning
administration in her home province. App. Vol. I, 4–5. The Board’s opinion
acknowledges that these documents provide evidence of incentives to local officials to
enforce family planning policies, the use of coercion to meet such birth targets, and
incidents of forced sterilization and abortion, but it concludes that these practices “have
been a longstanding concern” and are therefore not the product of a material change in
conditions. App Vol. I, 4. In this respect, the Board’s analysis was more thorough than
that in Zhu, in which we criticized the Board for acknowledging the social and economic
sanctions used to enforce population control measures while ignoring statements in the
same CECC Reports regarding coerced abortions and sterilizations. Zhu, 744 F.3d at
277.
Moreover, substantial evidence supports the Board’s finding that the evidence
merely “indicates a continuation of the enforcement of the family planning policy in
place since the time of [Lin’s] removal proceedings in 2002,” and that even those more
recent documents not available at the time of Lin’s hearing “announc[ing] renewed
efforts to enforce the family planning policies” do not reflect a “significant” or “material”
change in policy or practice. App. Vol. I, 4–5. Lin challenges this conclusion by
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contrasting the 1998 State Department Report, released prior to her 2002 hearing and
reflecting that Fujian Province was then reportedly known for “lax enforcement of family
planning rules,” Appellant’s Br. 23 (quoting App. Vol. II, 2010), with recent reports of
forced abortions and sterilizations in Fujian Province. That same 1998 State Department
Report, however, noted that in Fujian Province, “[p]ressure for abortions and
sterilizations [wa]s applied,” and there had been “credible reports that several women
were forced to undergo abortion in Fujian.” App. Vol. II, 2014–15. This is consistent
with the most recent State Department and CECC Reports that Lin submitted, which
report that “the country’s birth limitation policies retained harshly coercive elements” in
2013, and that officials “continued to use … coercive methods … to implement
population planning policies” in 2014. App. Vol. II, 2147, 2188 (emphasis added). On
this record, we have no basis to disturb the BIA’s conclusion there has not been a
“significant” or “material” change in those conditions since the time of Lin’s hearing in
2002. App. Vol. I, 4.
C. Religious Belief
Likewise, the BIA sufficiently considered the evidence Lin presented in support of
her argument that conditions have materially changed for Christians in China and did not
abuse its discretion in denying the motion on that basis. Lin argued to the BIA that
repression of Christianity in China has been exacerbated in recent years, in part because
of government efforts to subdue churches before the 2008 Beijing Olympics, fears of a
“jasmine revolution,” and fears that the Chinese Christian population is growing. App.
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Vol. II, 86–89. The Board acknowledged the evidence that Lin submitted in support of
this contention, including media reports, research articles, and congressional testimony,
but it explained that it credited reports from the U.S. State Department as the most
probative evidence of past and current country conditions and concluded that this
mistreatment was a “longstanding concern.” App. Vol. I, 3. We have previously held
that such U.S. government reports are “the most appropriate and perhaps the best
resource” for foreign country conditions, Kayembe v. Ashcroft, 334 F.3d 231, 235–37 (3d
Cir. 2003) (citation omitted), and as such they may constitute substantial evidence to
support the BIA’s findings, Zubeda v. Ashcroft, 333 F.3d 463, 477–78 (3d Cir. 2003).
Moreover, those reports cited by the Board document that the Chinese government has
continuously restricted and harassed unregistered religious groups. Thus, while the
evidence reflects troubling conditions of religious persecution, the BIA did not err in
concluding that “the mistreatment of some church members by the Chinese government
has been a longstanding concern,” App. Vol. I, 3, and that Lin failed to meet her burden
of demonstrating a material change since her removal hearing in 2002. See Liu v. Att’y
Gen., 555 F.3d 145, 149 (3d Cir. 2009) (affirming the BIA’s assessment that a
continuation of poor conditions did not constitute a material change in conditions); Jiang
v. Holder, 639 F.3d 751, 756 (7th Cir. 2011) (noting that China’s persistent record of
human rights abuses against Christians did not demonstrate sufficiently changed
conditions).
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III. Conclusion
For the foregoing reasons, we will deny Lin’s petition for review.
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