LIN v. HOLDER, NO. 13-1016

Decided: November 14, 2014

The Fourth Circuit held that the Board of Immigration Appeals (BIA) did not abuse its discretion when it refused to reopen the petitioner’s second motion to reopen his asylum claim because petitioner failed to provide sufficient evidence that Lin would be subject to China’s sterilization policies.

In 2007, the Department of Homeland Security initiated removal proceedings against the petitioner, Wanrong Lin, a Chinese citizen who entered the United States without inspection. At the time of the removal proceedings he was married to a U.S. citizen who was a Chinese native, and the couple had two children, both U.S. citizens. Lin applied for asylum on the grounds that due to China’s one-child family planning policy, he feared persecution, including forced sterilization, if he returned to China. An immigration judge (IJ) denied his application for asylum concluding that he did not find Lin’s testimony credible, nor his evidence sufficient to substantiate his claims that he would be tortured upon his return to China for having more than one child. The BIA denied Lin’s appeal. In 2010, Lin filed with the BIA to reopen his asylum claim on the grounds that he had new evidence that would show that conditions had changed in China since his previous application, and that he would face fines and sterilization if he returned. Lin also argued that the May 2007 Department of State Profile of Asylum Claims and Country Conditions on China (“2007 Profile”), which suggested that Lin was unlikely to experience the treatment he alleged, and on which the IJ and BIA relied, was unreliable. The BIA denied his motion to reopen. In 2012, Lin filed a second motion to reopen his asylum claim; again, the BIA denied his motion.

Generally, aliens are entitled to one motion to reopen an asylum claim. A petitioner can overcome this limitation when the motion to reopen is due to changed circumstances in the country to which the petitioner is to be deported. The evidence of the changed circumstances must be material and neither available nor discoverable at the time of the previous hearing. 8 C.F.R. § 1003.2(c)(2). For changed country conditions in China related to family planning policies, the BIA will only reopen an asylum claim when genuine, authentic, and objectively reasonable evidence proves that the country conditions changed; the applicant violated the family planning policies in place in the alien’s province or municipality; and the likely punishment for the violation would generate a well-founded fear of persecution. In re S-Y-G-, 24 I.N. Dec. 247, 251 (BIA 2007).

The Court relied upon four reasons for its conclusion that the BIA did not abuse its discretion in determining that Lin’s evidence did not support a finding that Lin would be subject to China’s sterilization policies. First, Lin failed to sufficiently authenticate many of the foreign documents he sought to introduce as evidence that he would be sterilized upon his return to China. Second, many of the documents he offered into evidence were previously available to him. Third, the documents that were new were immaterial because they filed to address Lin’s specific circumstances. Specifically, the evidence described the treatment of people in municipalities other than Lin’s; the treatment of women, rather than men; and the treatment of families in which all family members were Chinese citizens. Fourth, Lin failed to provide sufficient evidence to discredit the findings in the 2007 Profile. Accordingly, the Court denied Lin’s petition for review.

Full Opinion

Amanda K. Reasoner

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