Yunzhen Lin v. Atty Gen USA , 339 F. App'x 202 ( 2009 )


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  •                                                                                                                            Opinions of the United
    2009 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-21-2009
    Yunzhen Lin v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 08-2572
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    Recommended Citation
    "Yunzhen Lin v. Atty Gen USA" (2009). 2009 Decisions. Paper 1338.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1338
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 08-2572
    ___________
    YUNZHEN LIN,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    ____________________________________
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    (Agency No. A99 427 615)
    Immigration Judge: Honorable Frederick Leeds
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    May 20, 2009
    Before: BARRY, SMITH and HARDIMAN, Circuit Judges
    (Opinion filed May 21, 2009)
    ___________
    OPINION
    ___________
    PER CURIAM
    Yunzhen Lin petitions for review of a Board of Immigration Appeals (“BIA”)
    decision dismissing her appeal of the Immigration Judge’s (“IJ”) decision denying her
    applications for relief from removal. We will deny the petition for review.
    Lin is a native and citizen of China. She came to the United States in 1998 without
    admission or parole. In 2005, the Immigration and Naturalization Service issued a notice
    to appear charging that Lin was subject to removal for being present in the United States
    without being admitted or paroled. Through counsel, Lin conceded her removability and
    applied for asylum, withholding of removal, and relief under the Convention Against
    Torture.
    Lin testified that she married in 1999 and that she has two children who were born
    in the United States in 2000 and 2005. Lin is from Fujian Province in China. She stated
    that she left China because she saw her mother and neighbors persecuted by family
    planning officials and she did not want to suffer in the same way. Lin further stated that,
    if she went back to China, the Government would persecute her, and that, if she became
    pregnant again, she would be forced to have an abortion and sterilized. Lin also stated
    that she would be persecuted because of “this Christian stuff in America.” A.R. at 80.
    In response to a question by the IJ, Lin clarified that her real fear in terms of her
    children is what would happen if she were pregnant again with a third child. On cross-
    examination, Lin also stated that persons in China were required to wait five years before
    seeking permission to have a second child, and that her children were born five years
    apart. Lin also clarified that she recently became a Christian to help her cope with the
    stress of potentially being ordered to return to China. Lin testified that she travels to New
    York City from New Jersey two to three times a month to go to church and listen, but that
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    she had not joined the church. Lin testified on cross-examination that her husband is here
    without legal status, and that he unsuccessfully applied for asylum based on his Christian
    religion.
    The IJ found Lin credible, but rejected her claim for asylum based on a theory that
    she may be forced to have an abortion or be sterilized if she were to become pregnant
    again. The IJ reviewed various legal decisions where aliens had sought asylum based on
    China’s family planning policies. The IJ noted that the BIA had found in another case
    that parents with children born more than four years apart would not face forced abortion
    or sterilization, and that this Court had indicated in a non-precedential decision that it was
    unwilling to extend asylum protection to any woman being removed to China who could
    potentially become pregnant in the future. The IJ also stated that Lin could not prevail
    based on the experiences of family members who had suffered a forced abortion or
    sterilization.
    The IJ also rejected Lin’s claim for asylum based on her exploration of the
    Christian religion, which began while she was in removal proceedings. The IJ recognized
    that persecution against unofficial Christian churches takes place in China, but stated that
    he would have to speculate as to whether Lin would choose to become a practicing
    Catholic, what church she would join, and whether she would face persecution. Based on
    the IJ’s finding that Lin did not establish a well-founded fear of persecution for purposes
    of asylum, the IJ also denied Lin’s application for withholding of removal. The IJ further
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    concluded that Lin had not established that she would more likely than not be tortured if
    removed to China.
    The BIA dismissed Lin’s appeal. The BIA rejected Lin’s argument that she
    established a well-founded fear of persecution based on evidence that her mother and
    neighbor living in China had been forced to undergo abortions and sterilizations. The
    BIA affirmed the IJ’s legal conclusions, noting that it had determined in other cases that
    there is no policy of forced abortions or sterilizations of Chinese nationals returning with
    multiple children born abroad, and that economic penalties did not rise to the level of
    persecution. The BIA stated that the current record included evidence similar to that
    considered in its other decisions, including the United States Department of State’s
    Profile of Asylum Claims and Country Conditions for 2005. The BIA also decided that
    Lin had not established that it is more likely than not that she would be persecuted or
    tortured if returned to China. This petition for review followed.
    Whether an asylum applicant has established a well-founded fear of future
    persecution is a factual determination reviewed under the substantial evidence standard.
    Voci v. Gonzales, 
    409 F.3d 607
    , 613 (3d Cir. 2005). Under the substantial evidence
    standard of review, factual determinations will be upheld unless a reasonable factfinder
    would be compelled to conclude to the contrary. Abdulrahman v. Ashcroft, 
    330 F.3d 587
    , 597 (3d Cir. 2003).
    Lin argues that she has a well-founded fear of persecution because she is a
    4
    practicing Christian and the background evidence shows that China suppresses such
    practitioners from observing their faith. Lin points to the 2005 United States Department
    of State Profile of Asylum Claims and Country Conditions, which provides that “the
    Government seeks to restrict religious practice to government-sanctioned organizations
    and registered places of worship and to prevent the rise of competing sources of authority
    outside of the control of the Government and the Communist Party.” A.R. at 180. The
    Profile, however, further provides that the Government does not interfere with worship at
    registered Protestant and Catholic churches, as long as religious activities are confined to
    registered buildings. The Profile reflects that government supervision of religious activity
    in unofficial Christian churches is minimal in some places, but in other places, security
    officials use threats, demolition of unregistered property, interrogation, arrest,
    imprisonment, and at times severe physical abuse to target unregistered religious leaders
    and followers. In addition, many “house” churches, which conduct prayer meetings or
    worship services are often tolerated by local authorities as long as they remain small and
    unobtrusive. In light of this evidence, and the fact that Lin had only recently begun
    exploring the Christian religion, the record does not compel the conclusion that Lin has a
    well-founded fear of persecution on account of her religion.
    Lin further argues that the IJ and the BIA misconstrued her claim based on China’s
    family planning policies. She states that she fears forced sterilization not only in the
    event that she becomes pregnant again, but also based on the birth of her two children in
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    the United States. Lin argues that the matter should be remanded for proper consideration
    of her claim. As noted by the Government, however, the IJ specifically asked Lin, “. . .
    you don’t claim that you would be persecuted by going back just because you have two
    children who are 5 years apart, do you? Your real fear in terms of just your children is
    what would happen if you were pregnant again with a third child, is that what you’re
    telling us?” A.R. at 81. Lin replied, “Yes.” A.R. at 81. Although Lin argued on appeal
    to the BIA that she will face sterilization if she returns to China based on the birth of her
    two children, Lin did not argue that the IJ misconstrued her claim. In any event, the BIA
    addressed Lin’s claim more broadly, concluding that the background evidence did not
    support a policy of forced abortions or sterilizations of Chinese nationals returning with
    multiple children born abroad. A remand is not warranted on this basis.
    Lin also contends that the BIA and IJ erred in applying a bright-line rule against
    granting asylum where an individual has U.S. born children. Lin argues that the BIA did
    not address the record evidence and provide an individualized review of her case. We
    disagree. The BIA rejected Lin’s argument on appeal based on evidence that her mother
    and neighbor had been subjected to forced abortions or sterilizations. The BIA also noted
    that it had reviewed the record, and found that the record contained evidence similar to
    that considered in its cited precedential decisions, including the 2005 Profile of Asylum
    Claims and Country Conditions. Lin has not shown that the BIA did not undertake an
    individualized determination in her case. See Kamara v. Attorney General, 
    420 F.3d 202
    ,
    6
    212 (3d Cir. 2005) (noting that the BIA’s decision need only contain sufficient indicia of
    an individualized determination).1
    Accordingly, we will deny the petition for review.
    1
    The BIA did not err in relying on its earlier decisions such as In re S-Y-G, 24 I.&N.
    Dec. 247 (BIA 2007), where the BIA addressed the 2005 Profile, along with other
    evidence, and rejected a claim of a well-founded fear of persecution based on the birth of
    a Chinese alien’s two children in the United States. Lin’s background evidence primarily
    consisted of the 2005 Profile and its appendices, China’s 2001 Population and Family
    Planning Law and Fujian Province’s Regulations. We also note that our decision in
    Zheng v. Attorney General, 
    549 F.3d 260
     (3d Cir. 2008), is not to the contrary. In Zheng,
    we vacated the BIA’s denial of a motion to reopen where the BIA did not discuss most of
    the evidence submitted by the alien to show changed country conditions in China, and
    that evidence had not been discussed in the case on which the BIA almost exclusively
    relied. 
    Id. at 268-69
    .
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