Guang Lin v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-2959
______________
GUANG LIN,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA,
Respondent
______________
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
______________
Argued on June 12, 2019
BEFORE: HARDIMAN, PORTER, and COWEN, Circuit Judges
(Filed: August 23, 2019)
______________
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 5th 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 Against
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
Torture (“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.
3
“[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-Executive
1
We have subject matter jurisdiction pursuant to 8 U.S.C. § 1252. We review the
denial of a motion to reopen for an abuse of discretion, which occurs if (inter alia) the
BIA fails to meaningfully consider the evidence and arguments presented in support of
the motion. See, e.g., Zhu, 744 F.3d at 271-72.
4
Commission 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)
5
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 changed
6
conditions 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 establish a material change in conditions in the respondent’s locality,
but rather a continuation of the policy in place there since the time of the
respondent’s proceeding in 2008. See Liu v. Att’y Gen., 555 F.3d 145,
148-49 (3d Cir. 2009); [S-Y-G-, 24 I. & N. Dec. at 247].
(AR5.) Noting that a number of the documents “are from 2009 and 2010, and are
outdated” (AR5 n.1), the BIA stated that “the evidence reflects that in 2016 the Chinese
government raised the birth limit to two children per family.” (AR5 (citing Exhibits B at
1, DD at 1-2, KK (AR108-AR109, AR493-AR494, AR532-AR535)).) It reasoned “[t]his
easing of the government’s family planning policy signals improving rather than
7
worsening conditions for those who may have violated the family planning rules.”
(AR5.) The BIA also determined that Lin’s evidence “does not support her claim that the
Fujian Province has a policy of mandatory sterilization for parents returning with three
foreign-born children.” (Id. (citing AR58).) According to the BIA, “[t]he documents she
offers do not indicate that sterilization would be forcibly imposed or that harm amounting
to persecution would be otherwise inflicted on the mother of U.S. born children who
returns to China.” (Id.)
However, we conclude that the agency did not adequately address the extensive
evidence of both population control campaigns as well as local family planning policies
and practices.
As we explained in Zhu, “[t]he Court of Appeals for the Seventh Circuit reviewed
many of the same documents and noted that if the documents are genuine, ‘they
constitute strong evidence that harrowing practices are common in’ her hometown and
county.” Zhu, 744 F.3d at 274-75 (quoting Ni, 715 F.3d at 628). For example, Exhibit P
consisted of an “Announcement on Launching Countrywide Massive Family Planning
Clean-Up Work” by the “Lian Jiang County Population Family Planning Leadership
Group.” (AR294 (emphasis omitted).) According to this official document, “it is
decided to launch the countywide 2011 New Year and Spring Festival massive cleanup
campaign on ‘double check-ups, ‘four surgeries’ and social child support fee collections.
This is to stop the extra births beyond the quota, to build a solid foundation for family
planning work, and to ensure that goals set for 2011 population and family planning work
will be reached.” (Id.) “Officials are instructed to enter homes and ‘take every measure
8
possible to raise the materialization rate for ‘four surgeries.’” Ni, 715 F.3d at 628.
“Officials who do not meet goals will face ‘great severities’ and will be assessed as not
qualified for the jobs for that year and will also be disciplined in other ways.’” Id.; see
also Zhu, 744 F.3d at 275 n.9 (summarizing same Lianjiang County Population Family
Planning Leadership Group document). The 2012 IRB report stated that (according to
the IRB’s legal consultant) “both internal government documents and significant
anecdotal evidence indicate that the enforcement of family planning law is ‘generally
coercive’ in the rural areas of Fujian, due in part to the pressure on officials to meet
population targets or birth quotas (7 Sept. 2012).” (Exhibit U (AR357).) The Langqi
Town Family Planning Office, Langqi Economic District, Fuzhou City, issued a
“Notification on Further Reinforcement of Family Planning Campaign Work.” (Exhibit I
(AR199).) Exhibit I expressed the intent “to turn around the passive aspect of our
town’s family planning work”—thereby indicating that the document represented
alterations in the town’s enforcement efforts (id.). See, e.g., Liem, 921 F.3d at 397-98
(explaining that BIA ignored statements in exhibits indicating worsening conditions for
Christians in Indonesia and failed to explain why such statements were unpersuasive
while accepting other statements in same exhibits as persuasive). Although dating from
2009, there was no indication that the changes were confined to a temporary initiative or
would otherwise expire. The whole point of Exhibit I was to subject returning parents
with children born outside of the country to national and provincial family planning laws
and regulations as well as the town’s own requirements. Such parents could then be
subject to mandatory sterilization, e.g.:
9
3. For overseas Chinese “backflow” from abroad who have ever
given birth inside or outside of the country, regardless whether or not their
children have obtained foreign nationalities, all parents without exception
are subject to our town’s family planning goals, and will be managed by
current family planning management measures. Couples who give birth
outside the plan shall pay the fine according to the current standard.
Women of child-bearing age who meet the criteria for IUD insertion, must
resolutely insert an IUD. Women who are pregnant outside the plan, shall
undergo [dilation and curettage] abortion or induced-labor abortion, and if
the nature of violation is bad, “one party of the couple” shall resolutely
undergo sterilization.
(AR199 (Chinese characters omitted); see also, e.g., Exhibit FF (AR519) (November 11,
2011 ShanghaiDaily.com article claiming that “[a] woman was caught, brought to her
hometown in southeast Fujian Province and forced to have a sterilization surgery a week
ago” because “unauthorized births would affect [officials’] job performance”).)
Admittedly, Exhibits I, P, and U are several years old and predate the 2016
increase in the birth limit to two children per family. However, the BIA never explained
why this putative “easing of the government’s family planning policy” had any bearing
on someone with three children, even though it acknowledged elsewhere in its decision
Lin’s argument “that the recent amendment to the family planning policy allowing two
children per couple does not have an effect on her case” (AR4 (citing AR57-AR58)). It
also failed to consider evidence indicating that the purportedly coercive campaigns,
policies, and practices addressed above have continued despite the policy change. For
instance, the 2017 CECC report acknowledged that the two-child policy became effective
on January 1, 2016 and that a number of provincial-level jurisdictions had revised their
regulations in accordance with the amendment. “Human rights advocates, demographic
experts, and others, however, expressed concerns that the coercive implementation of
10
family planning measures and human rights abuses will persist despite the adoption of the
universal two-child policy.” (Exhibit B (AR109) (footnotes omitted).) “Officials
continue to enforce compliance with population planning targets using methods including
heavy fines, job termination, arbitrary detention, and coerced abortion.” (AR108
(footnote omitted).) As part of its “Coercive Implementation” discussion (under the
heading “Official Campaigns”), the CECC report went on to observe that, during the
reporting period, official reports from several provinces (including Fujian) “continued to
promote ‘family planning work’ that entailed harsh and invasive family planning
measures.” (AR111.) “Some local government authorities stated in their reports that the
goal of ‘family planning work’ is to maintain a low birth rate, and touted their successes
in meeting this goal by compelling women to undergo the invasive ‘three inspections’
(intrauterine device (IUD), pregnancy, and health inspections), and ‘four procedures’
(IUD insertion, first-trimester abortion, mid- to late-term abortion, and sterilization), and
the forcible collection of ‘social compensation fees.’” (Id. (Chinese language omitted)
(footnotes omitted).) Similarly, the IRB acknowledged that a source “could state” that
Fujian Province “had revised their regulations” as of April 2016. (Exhibit KK (AR533
(citation omitted).) But the Canadian agency also stated that corroborating information
and further details on the process and status of these amendments and their
implementation could not be found. It indicated that (according to the 2015 State
Department country report) provincial authorities still retained considerable discretion to
determine enforcement measures (and that “[t]he March 2016 article in The Diplomat
states that the ‘creation and implementation of actionable guidelines has been left to the
11
provinces’ and they have hesitated on ‘how to implement the two-child policy’”).
(AR534 (citation omitted).) In an October 29, 2015 statement, Amnesty International
asserted that “Chinese women will remain at risk of intrusive forms of contraception and
coerced or forced abortions, despite the authorities announcing a change to the country’s
decades-long one-child policy.” (Exhibit HH (AR525); see also, e.g., Exhibit JJ (AR530)
(“Reggie Littlejohn, President of Women’s Rights Without Frontiers, told Breitbart News
that ‘forced abortion and involuntary sterilization continue under China’s new Two-Child
Policy.’”).)
III.
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s
order, and remand for further proceedings. “In doing so, we do not decide whether [Lin]
has shown materially changed conditions in [China] warranting reopening of [her]
removal proceedings,” Liem, 921 F.3d at 401, or that the evidence has “established her
prima facie eligibility for the relief she seeks upon reopening” (AR4 (citations omitted)).
Rather, we will remand for the agency to “meaningfully consider all of the evidence,
which may or may not yield a different result.” Liem, 921 F.3d at 401; see also, e.g.,
Zhu, 744 F.3d at 279 (“Rather, we will remand for the BIA to meaningfully review the
evidence, which may yield a different result or a further explanation for the BIA’s
decision.” (footnote omitted)); Ni, 715 F.3d at 631 (“In closing, we note that we make no
prediction on the ultimate outcome of Ni’s motion to reopen or his application for
asylum. But he is entitled to have the expert agency, the BIA, evaluate in a transparent
way the evidence that he has presented.”).
12
PORTER, Circuit Judge, dissenting.
The majority holds that the Board of Immigration Appeals failed to meaningfully
consider evidence favorable to Guang Lin when it denied her motion to reopen her
removal proceeding. On that basis, it grants Lin’s petition for review and remands this
matter to the Board for further consideration. I view the Board’s analysis differently. The
Board reviewed the relevant record evidence favoring Lin—expressly citing most of her
exhibits and discussing their contents—but concluded that conditions in China had not
changed since 2008, so it could not reopen her proceeding. Under our precedents, nothing
more is required. And under our deferential standard of review, the Board’s conclusion
should not be disturbed. Because I would hold that the Board meaningfully considered
Lin’s evidence—and fear that our decision to the contrary weakens the standard and
invites gamesmanship—I respectfully dissent.
The applicable standard is a “highly deferential” abuse-of-discretion review. Guo
v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). The Supreme Court has noted that an alien
seeking reopening “bears a heavy burden,” analogizing such a motion to “a motion for a
new trial in a criminal case on the basis of newly discovered evidence.” I.N.S. v. Abudu,
485 U.S. 94, 107 (1988). This is a high hurdle. Unsurprisingly, then, “motions to reopen
are granted only under compelling circumstances.” Guo, 386 F.3d at 561.
The majority identifies several of Lin’s exhibits that the Board supposedly
ignored. But the Board cited most of these documents and grappled with their
implications for Lin’s motion to reopen.
1
• Exhibit P. This 2010 Chinese government document from Lianjiang County—
Lin’s home county within Fujian Province—announces that the county
government will increase enforcement of the family-planning policy. The Board
expressly cited this document as reflecting “longstanding family planning
policies” that the government has intermittently attempted to enforce. J.A. 7.
• Exhibit U. The Board discussed this document, which comes from Canada’s
Immigration and Refugee Board, in tandem with the previous exhibit. The Board
specifically cited this document’s subsections addressing Fujian Province.
Admittedly, it did not specifically cite another subsection on forced abortions and
sterilizations. But that subsection discuses those coercive measures in broad
national strokes, whereas the subsections that the Board specifically cited discuss
coercive measures within Fujian Province. Compare A.R. 355 § 3.3, with A.R.
357 § 3.6. In fact, this cited subsection actually discusses the Lianjiang County
document (i.e., Exhibit P) in summarizing coercive population-control measures.
A.R. 358.
• Exhibit I. This is a Chinese government document from a family-planning office
within Fujian Province that discusses sterilization for returning nationals. A.R.
198. The Board cited and discussed this document multiple times in its decision.
See J.A. 6, 7. The Board noted that documents like Exhibit I “announce renewed
efforts to enforce the family planning policies that have been in place since the
1980s,” but found that those documents do not rise to the level of changed country
conditions. J.A. 6.
The majority also identifies a few exhibits—media reports and a statement from an
international aid organization—that the Board did not expressly discuss.1 But these
omissions do not compromise the analysis, as the Board is not required to “expressly
parse or refute on the record each individual argument or piece of evidence offered by the
petitioner.” Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (quoting Wang v. BIA,
1
These include Exhibit FF, a November 2011 article from “ShanghaiDaily.com” that
reported on a forced sterilization in Fujian Province; Exhibit HH, an October 2015
Amnesty International statement that predicted, “Chinese women will remain at risk of
intrusive forms of contraception and coerced or forced abortions, despite the authorities
announcing a change to the country’s decades-long one-child policy”; and Exhibit JJ, a
Breitbart News article suggesting that forced abortions and involuntary sterilization will
continue under the two-child policy.
2
437 F.3d 270, 275 (2d Cir. 2006)). It also need not “write an exegesis on every
contention.” Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir. 2006) (quoting Mansour v.
I.N.S., 230 F.3d 902, 908 (7th Cir. 2000)). Rather, the Board must “consider the issues
raised, and announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.” Id. (quoting Mansour, 230
F.3d at 908). This means that the Board “must at least show that it has reviewed the
record and grasped the movant’s claims.” Id. By considering Lin’s most authoritative
documentary evidence and conducting a case-specific analysis of it, the Board decision
here met this threshold.2 That is enough.3
Indeed, the Board’s analysis here is a far cry from the more “perfunctory”
treatments sometimes seen in other administrative proceedings. Zhu v. Att’y Gen., 744
F.3d 268, 278 (3d Cir. 2014). In Zhu, which undergirds the majority’s opinion, the Board
made a number of missteps. For one thing, it “did not specifically discuss” many
2
See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008) (“This Court has repeatedly
recognized that State Department reports may constitute substantial evidence[.]” (citation
omitted)); see also Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003) (“Our case law
well establishes ‘that the country report from our Department of State is the ‘most
appropriate’ and ‘perhaps best resource,’ for determining country conditions.” (quoting
Lal v. I.N.S., 255 F.3d 998, 1023 (9th Cir. 2001))).
3
The majority also makes the more global assertion that the Board excluded “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.” Maj.
Op. 6. But the Board cited these very sources in noting that “alleged incidents of coercion
to meet birth targets in some areas of China have been a longstanding concern,” and these
incidents represent “a continuation of the policy in place” since Lin’s 2008 proceeding.
J.A. 6–7. The majority may interpret these documents differently than the Board, but that
does not mean that the Board did not meaningfully consider them.
3
documents from the petitioner’s hometown and county. Id. at 275. Here, by contrast, the
Board considered documents from Lin’s home county, but found that they did not amount
to a change in government policy. The Board decision in Zhu also was inconsistent on
whether the petitioner’s evidence had to be locality-specific. 744 F.3d at 276. It
discounted some evidence favoring the petitioner because it was not tethered closely
enough to the petitioner’s hometown, but then credited far more general evidence that
was unfavorable to the petitioner. Id. Such analytical inconsistency is not apparent here.4
By likening the Board’s decision here to the deficient review in Zhu, we risk
creating perverse incentives for petitioners seeking to reopen proceedings. Savvy
petitioners will realize that the more exhibits they throw at the Board, the greater the
likelihood that the Board will fail to discuss some of them—and the greater the likelihood
that this Court will find that the Board failed to meaningfully consider evidence. This is
why we have never held that the Board “must discuss every piece of evidence mentioned
by” a petitioner; we require simply that it “not ignore evidence favorable to the alien.”
Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010).
4
Liem is of limited relevance here for similar reasons. Liem v. Att’y Gen., 921 F.3d 388(3d Cir. 2019). The Board in Liem cited just seven of the thirty-five exhibits that the
petitioner submitted and did not provide even a “cursory review or description of them.”
Id. at 396. Unlike this failure “to even mention the vast majority of the exhibits submitted
by Liem,” the Board here specifically discussed most of Lin’s exhibits—about twenty-six
out of thirty-seven exhibits, by my count—and may have considered others. Id. at 398.
The Liem panel also leaned heavily on a recent case from the First Circuit that
suggested that conditions for Christians in Indonesia had materially changed for the
worse. Id. at 400 (citing Sihotang v. Sessions, 900 F.3d 46 (1st Cir. 2018)). Here, there is
no similarly persuasive recent guidance.
4
Of course, a holding that the Board meaningfully considered Lin’s evidence is not
an endorsement of China’s official family-planning policy, which remains abhorrent.5
But the question before us is not the rectitude of Chinese government policy; it is whether
the Board meaningfully considered Lin’s evidence that conditions in her native China
have changed since her last proceeding. That is a different question with a different
answer. Because the record here shows that the Board meaningfully considered Lin’s
evidence, I would deny her petition for review arguing otherwise.
5
The harms of China’s family-planning policy have been chronicled for decades. See,
e.g., Steven W. Mosher, Broken Earth (1983); Steven W. Mosher, A Mother’s Ordeal
(1993). But this means that—as the Board found—Lin’s evidence shows continued
circumstances rather than changed conditions.
5