Wanrong Lin v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1016

WANRONG LIN,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued: September 16, 2014 Decided: November 14, 2014

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Petition denied by published opinion. Judge Duncan wrote the
opinion, in which Judge Agee and Judge Diaz joined.

ARGUED: Theodore N. Cox, New York, New York, for Petitioner.
Aimee J. Carmichael, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery,
Acting Assistant Attorney General, Civil Division, John S.
Hogan, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
DUNCAN, Circuit Judge:

Petitioner Wanrong Lin seeks judicial review of an order of

the Board of Immigration Appeals (“BIA” or “Board”) denying his

second motion to reopen removal proceedings. Lin contends that

the BIA abused its discretion in evaluating the evidence he

submitted in support of his motion to reopen, and in finding the

May 2007 Department of State Profile of Asylum Claims and

Country Conditions on China (“2007 Profile”) 1 reliable. For the

reasons that follow, we deny Lin’s petition for review.

Many of the facts leading to Lin’s current petition for

review are set forth in this court’s opinion in Lin v. Holder,

452 F. App’x 369 (4th Cir. 2011). We summarize the relevant

portions here.

Lin, a native and citizen of the People’s Republic of

China, entered the United States without inspection and

subsequently married a U.S. citizen. Lin and his wife have

three children, all U.S. citizens. In January 2007, the

1
The 2007 Profile reports that, in the decade preceding its
publication, there were no cases of forced abortion or
sterilization in Lin’s home province of Fujian, China. See J.A.
23.

2
Department of Homeland Security served Lin with a Notice to

Appear, charging him with being removable under 8 U.S.C.

§ 1182(a)(6)(A)(i). During Lin’s removal proceedings before an

Immigration Judge (“IJ”), Lin filed applications for asylum,

withholding of removal, and relief pursuant to the United

Nations Convention Against Torture.

The IJ held a hearing on the merits of Lin's asylum claim

in March 2008. Lin testified that, given the birth of his two

children 2 in the U.S. in violation of China's one-child family

planning policy, he feared persecution, specifically forced

sterilization, upon his return to China. Lin submitted several

identification documents for himself and his family, but failed

to submit evidence regarding country conditions and family

planning policies in China. Moreover, though Lin claimed to

have evidence substantiating his father’s past persecution for

family planning violations due to Lin’s birth, Lin did not

submit such evidence to the IJ, and Lin’s father, who lives in

the U.S., failed to testify on his behalf.

The IJ denied Lin’s applications and ordered his removal to

China. The IJ found that Lin had not submitted sufficient

documentation to support his claims of possible future

2
Lin’s third child was born after he submitted his asylum
application.

3
persecution and torture stemming from the birth of his children.

With respect to Lin’s past persecution claim, the IJ did not

find credible Lin’s testimony regarding his father’s arrest in

connection with Lin’s birth, or Lin’s related detention by

authorities as a child. The IJ determined that this testimony

was inconsistent with Lin’s asylum application and

uncorroborated by any objective evidence.

Lin appealed this decision to the BIA, which affirmed all

of the credibility and evidentiary findings of the IJ, as well

as the order of removal. Lin did not file a petition for review

of the BIA's decision with this court.

In February 2010, Lin filed a motion to reopen his asylum

claim with the BIA, arguing that material and previously

unavailable documents demonstrated changed country conditions in

China and established that Lin would face fines and forced

sterilization if repatriated. Lin asserted that coercive

practices were widely used in his home province of Fujian to

implement China's family planning policies, and that he would be

subject to these practices on return. Lin also questioned the

2007 Profile’s reliability and criticized the BIA’s reliance on

this report in previous decisions.

The BIA denied Lin’s motion to reopen for several reasons.

First, the Board noted that Lin’s motion was not accompanied by

an affidavit, and therefore Lin’s counsel’s statements that Lin

4
would be forcibly sterilized were not evidence. Second, the

Board determined that several of Lin’s documents had been

previously submitted to the BIA with his first asylum claim, had

not been properly authenticated, were incomplete, or had

previously been considered by the BIA in other, precedential

decisions. Third, the BIA rejected Lin’s argument that it

should grant his motion to reopen because the Board had granted

a motion to reopen based on similar documents in an unrelated

case. Finally, the BIA rejected Lin’s argument that the 2007

Profile was unreliable, finding that Lin failed to provide

evidence that proved his claim or demonstrated that his expert,

Dr. Flora Sapio, was qualified to make such a determination.

Lin timely filed a petition for review of the BIA’s

decision. In an unpublished decision released on October 28,

2011, this court denied Lin’s petition for review. We found

that the BIA did not abuse its discretion in rejecting certain

documents as unauthenticated, relying on the 2007 Profile, or

rejecting Lin’s claim of economic persecution where Lin had

provided no financial information. See Lin, 452 F. App’x at

372-73.

On June 11, 2012, Lin filed a second motion to reopen with

the BIA. In this motion, Lin argued that “new and previously

unavailable evidence . . . establishe[d] changed country

5
conditions in China with respect to the government’s enforcement

of the population control policy since [his] hearing before the

[IJ].” J.A. 18. Lin specifically alleged that the new evidence

“demonstrate[d] that the 2007 Profile does not reflect current

conditions [in China] and is an unreliable source,” J.A. 18,

that officials in Lin’s home province of Fujian use coercive

measures to enforce “population targets and quotas,” J.A. 19,

and that “an official policy change” in Fujian Province now

mandates sterilization for parents of U.S.-born children, who

have not acquired legal status abroad, “without exception,” J.A.

19.

On December 11, 2012, the BIA denied Lin’s second motion to

reopen, concluding that Lin’s “evidence [was] not sufficient to

establish a change in circumstances or country conditions

‘arising in the country of nationality’ so as to create an

exception to the time and number limitations for filing another

. . . motion to reopen.” J.A. 7 (quoting 8 U.S.C. §

1229a(c)(7)(C)(ii)). The Board pointed out that much of the

evidence Lin attached to his second motion to reopen had been

previously submitted, J.A. 4-5, and that Lin’s documents from

China “ha[d] not been sufficiently authenticated in any manner.”

J.A. 5.

The BIA discussed Lin’s evidence category-by-category. In

doing so, it determined that Lin’s submissions were insufficient

6
to show that he would be subject to sterilization in China.

First, the Board noted that Lin’s evidence indicated that

administrative penalties, rather than coercive measures, are

used to enforce China’s family planning policies. Second, the

Board found that Lin’s evidence suggesting that his children

would be considered Chinese nationals did not establish that Lin

would be sterilized. Third, the Board noted that Lin had not

demonstrated that the policies or practices highlighted in his

submitted documents were applicable to him. For example, the

evidence either pertained to locales outside his home of Fuzhou

City, 3 or did not involve sterilizations following the birth of

U.S.-born children. Fourth, the Board concluded that Lin had

not shown that the 2007 Profile was unreliable.

Alternatively, because he had not offered information

relevant to his current financial situation, the Board

determined that Lin had not shown that he would be subjected to

economic harm amounting to persecution if repatriated to China.

As such, the Board concluded that Lin “ha[d] not satisfied his

burden to demonstrate that his removal proceedings should be

reopened.” J.A. 7. This petition for review followed.

3
Lin is from Tantou Village, Guantou Town, in Fuzhou City,
which is located in Fujian Province, China. See J.A. 5.

7
II.

Lin presses two arguments on appeal. First, Lin argues

that his petition should be granted in light of our decision in

Chen v. Holder, 742 F.3d 171 (4th Cir. 2014), in which we held

that it was improper for the BIA to rely on the 2007 Profile

without accounting for strong contradictory evidence that

petitioners would be forcibly sterilized if returned to China,

id. at 179–81. Turning to the merits, Lin argues next that the

BIA abused its discretion by failing to properly consider what

Lin characterizes as new, previously unavailable, and material

evidence establishing changed country conditions in China

related to the enforcement of the one-child policy. We consider

each issue in turn.

We review the BIA’s denial of a motion to reopen for abuse

of discretion. INS v. Doherty, 502 U.S. 314, 323-24 (1992);

Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir. 2009); see also 8

C.F.R. § 1003.2(a). The BIA’s decision “is reviewed with

extreme deference, given that motions to reopen are disfavored

because every delay works to the advantage of the deportable

alien who wishes merely to remain in the United States.”

Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir. 2009) (quoting

Massis v. Mukasey, 549 F.3d 631, 636 (4th Cir. 2008)) (internal

quotation mark omitted). Therefore, we “reverse the BIA’s

decision only if it is ‘arbitrary, irrational, or contrary to

8
law.’” Mosere, 552 F.3d at 400 (quoting Sevoian v. Ashcroft,

290 F.3d 166, 174 (3d Cir. 2002)).

An alien may file only one motion to reopen within ninety

days of the final administrative decision sought to be reopened.

8 C.F.R. § 1003.2(c)(2). A motion to reopen “shall state the

new facts that will be proven at a hearing to be held if the

motion is granted and shall be supported by affidavits or other

evidentiary material.” Id. § 1003.2(c)(1). The time and

numerical limits on motions to reopen, however, do not apply to

a motion to reopen proceedings “based on changed circumstances

arising in the country of nationality or in the country to which

deportation has been ordered, if such evidence is material and

was not available and could not have been discovered or

presented at the previous hearing.” Id. § 1003.2(c)(3)(ii)

(emphasis added).

In the context of motions to reopen based upon changed

country conditions in China associated with family planning

policies, the BIA will reopen the case only if:

on a case-by-case analysis, the genuine, authentic,
and objectively reasonable evidence proves that (1) a
relevant change in country conditions occurred, (2)
the applicant has violated family planning policy as
established in that alien’s local province,
municipality, or other relevant area, and (3) the
violation would be punished in a way that would give
rise to a well-founded fear of persecution.

9
In re S-Y-G-, 24 I. & N. Dec. 247, 251 (BIA 2007). The

petitioner carries a “heavy burden”; he or she must show that

“the new evidence offered would likely change the result in the

case.” In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992).

III.

Lin first argues that our decision in Chen mandates

reopening of his removal proceedings. We begin with a brief

summary of our decision in Chen as a useful predicate for the

discussion that follows.

In Chen, a husband and wife sought asylum claiming that

they would face involuntary sterilization in China due to the

birth of their two children in the United States. 742 F.3d at

175. The IJ found the petitioners credible, but concluded that

the couple failed to prove genuine fear of future persecution

that was objectively reasonable for two reasons. First, China’s

one-child policy does not apply to foreign-born children, and

second, it imposes only economic penalties for such violations.

Id. In making this determination, the IJ relied heavily on the

2007 Profile, “indicat[ing] without explanation that the [2007

Profile] was simply ‘more persuasive’” than other evidence of

record. Id. at 176. The IJ also ignored other submissions

wholesale, including the 2009 Annual Report from the

10
Congressional-Executive Commission on China (“2009 CECC Report”)

and a webpage maintained by the Fuzhou City Family Planning

Committee. 4 Id. The BIA adopted and affirmed the IJ’s decision,

“[r]elying exclusively on the [2007 Profile]” to conclude that

coercive measures rising to the level of persecution would not

be used against the petitioners to enforce China’s one-child

policy. Id. at 177 (emphasis added).

This court granted Chen’s petition for review and remanded

the case to the BIA to address compelling evidence that the IJ

and BIA ignored. The court acknowledged that State Department

Reports are “highly probative evidence in a well-founded fear

case.” Id. at 179 (quoting Gonahasa v. INS, 181 F.3d 538, 542

(4th Cir. 1999)) (internal quotation mark omitted). It

cautioned, however, that “the BIA should avoid treating these

Country Reports ‘as Holy Writ’ immune to contradiction,” id.

(quoting Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000)), and

instead must “ensure that unrebutted, legally significant

evidence is not arbitrarily ignored by the factfinder,” id.

4
This webpage is maintained by the family planning
committee in Lin’s home city. However, as we discuss below,
Lin’s case is distinguishable from Chen’s on several grounds,
and in fact, Lin submitted this document as well as the CECC
Report when he filed his first motion to reopen, see J.A. 1,294,
1,683, and we held that the BIA did not abuse its discretion in
determining that those submissions were not sufficient to
establish changed country conditions.

11
(quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir, 2009))

(internal quotation marks omitted). This court also determined

that the 2009 CECC Report and the Family Planning Committee

website were legally significant contradictory evidence the BIA

had failed to account for. See id. at 181.

We begin our analysis with Chen--ultimately concluding that

it is materially distinguishable from the petition here. We

then consider independently Lin’s petition on its merits.

Lin’s case differs from Chen in two critical respects,

which we address in turn. The first is the extent to which the

BIA considered and addressed a range of evidence, including the

2007 Profile. The second is that Lin’s claims arise in a

markedly different procedural posture. 5

In Chen, we appropriately took the BIA to task for its

treatment of the 2007 Profile “‘as Holy Writ’ immune to

contradiction.” Id. at 179 (quoting Galina, 213 F.3d at 959).

In consequence, the BIA “failed to consider compelling

contradictory evidence suggesting that forced sterilizations are

still a reality for Chinese nationals such as [the

5
We note as well that petitioners in Chen were found
credible--whereas Lin was not--but that need not factor into our
analysis.

12
petitioners].” Id. The Chen court acknowledged that “[a]bsent

powerful contradictory evidence, the existence of a State

Department report supporting the BIA’s judgment will generally

suffice to uphold the Board’s decision.” Id. (alteration in

original) (quoting Gonahasa, 181 F.3d at 542) (internal

quotation marks omitted). Nevertheless, it was clear that the

Board in Chen “selectively consider[ed] evidence,” id. (quoting

Tang v. Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009)

(internal quotation mark omitted)), and “cherry-picked

statements from the [2007 Profile],” id., while simultaneously

failing to explain or account for documents such as the 2009

CECC Report and the Family Planning Committee website in any

“meaningful way,” id. at 181.

The facts are markedly different here; the Board’s decision

does not treat the 2007 Profile as immune to contradiction or

fail to account for contradictory evidence in the record. As an

initial matter, the BIA here did not ignore the 2009 CECC Report

or the Family Planning Committee website in favor of the 2007

Profile, as did the Board in Chen. Moreover, Lin submitted

those documents to the BIA when he filed his first motion to

reopen in 2010, see J.A. 1,294, 1,683, and we have already held

that the BIA did not abuse its discretion in determining that

those submissions, alongside Lin’s other evidence, were not

sufficient to establish changed country conditions. See Lin,

13
452 F. App’x at 372-73. We will not revisit that decision here.

See Sejman v. Warner–Lambert Co., 845 F.2d 66, 69 (4th Cir.

1988) (“[W]hen a decision of an appellate court establishes the

‘law of the case,’ it must be followed in all subsequent

proceedings in the same case.” One exception to this rule

applies where “controlling authority has since made a contrary

decision of law applicable to the issue.” (quoting EEOC v. Int’l

Longshoremen’s Ass’n, 623 F.2d 1054, 1058 (5th Cir. 1980))

(internal quotation mark omitted)). Given the distinctions just

noted and those we discuss below, Chen does not warrant

disturbing the law of the case pertaining to the BIA’s

evaluation of the 2009 CECC Report and the Family Planning

Committee website.

Moreover, unlike the Board in Chen, the BIA’s decision here

to rely on the 2007 Profile was considered and reasoned. In

fact, we recognized in Chen “that the BIA and IJ are not

required to discuss every piece of evidence in the record,” 742

F.3d at 179, simply noting that a Board’s decision must be

explained “in terms sufficient to enable a reviewing court to

perceive that [the Board has] heard and thought and not merely

reacted,” id. (quoting Ayala v. Att’y Gen., 605 F.3d 941, 948

(11th Cir. 2010) (internal quotation mark omitted)). There, the

Board’s “boilerplate language . . . was insufficient to

demonstrate that the agency gave [contradictory evidence] more

14
than perfunctory consideration.” Id. at 181. Here, to the

contrary, the BIA catalogued the contents of Lin’s evidentiary

submissions in detail and discussed its reasons for continuing

to find the 2007 Profile valid. See J.A. 4–6. Although the BIA

here did not ultimately credit the evidence Lin offered to

attack the 2007 Profile, considering and failing to credit

certain evidence is far different from “ignoring . . . evidence

that . . . calls into question the conclusion the judge is

attempting to reach,” Chen, 742 F.3d at 179 (quoting Tang, 578

F.3d at 1280) (internal quotation mark omitted), which was the

court’s concern with the Board’s decision in Chen.

ii.

The procedural posture of Lin’s petition also distinguishes

it from Chen. In Chen, the petitioners sought asylum on direct

review, 6 and this court determined that the BIA’s failure to

analyze fully the petitioners’ evidentiary submissions might

have impacted the Board’s determination that the petitioners

failed to satisfy their burden of proving a well-founded fear of

persecution. 742 F.3d at 179-81. In contrast, Lin seeks review

6
Technically, Chen was an appeal from a reopened proceeding
because the husband’s and wife’s separate proceedings were
consolidated into one. See 742 F.3d at 174-75. This makes no
substantive difference for the purposes of our review because
Chen was not an appeal from a denial of a motion to reopen, let
alone a second such motion.

15
of the denial of a second motion to reopen. Lin’s burden at

this juncture was to show that country conditions in China were

materially different from those conditions at the time of his

original removal proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii).

As an initial matter, this court has already concluded,

based on much of the same evidence now before us--including the

very 2009 CECC Report and the Family Planning Committee website

at issue in Chen--that Lin failed to demonstrate changed country

conditions. See Lin, 452 F. App’x at 373. As such, though some

of the documents before us were also presented in Chen, the

procedural posture here explains why the BIA did not consider

the documents the Board should have considered in Chen: because

they were the same documents that we already concluded failed to

meet the burden for reopening.

Moreover, it bears repeating that the BIA’s decision to

deny a motion to reopen is reviewed for abuse of discretion.

See Sadhvani, 596 F.3d at 182. Here, the BIA catalogued Lin’s

submissions, both old and new, evaluated the evidence of record,

and explained why the evidence did not meet Lin’s heavy burden.

Such diligence falls far short of arbitrariness. Cf. Chen, 742

F.3d at 181.

16
IV.

Turning to the merits of Lin’s case, the BIA did not abuse

its discretion in determining that his submissions did not

establish changed country conditions in China related to the

enforcement of the one-child policy. The BIA is not required to

“expressly parse or refute . . . each individual argument or

piece of evidence,” Wang v. BIA, 437 F.3d 270, 275 (2d Cir.

2006) (quoting Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 160

n.13 (2d Cir. 2006)) (internal quotation mark omitted); see also

Chen, 742 F.3d at 179, particularly evidence that “the BIA is

asked to consider time and again,” id. The Board here

considered the evidence of record as a whole, discussed specific

submissions in its decision, and found that the evidence did not

support a finding that China’s sterilization policies would be

applied to Lin.

The BIA did not abuse its discretion in this regard for

four reasons, which we address in turn. First, many of Lin’s

documents were unauthenticated. Second, much of Lin’s evidence

was neither new nor previously unavailable. Third, to the

extent that Lin’s evidence was new, it was not relevant to his

circumstances or his home province in China. And finally, Lin’s

evidence was not sufficient to discredit the findings in the

2007 Profile.

17
A.

The BIA did not abuse its discretion in determining that

Lin’s evidence was insufficient to show that he would be subject

to sterilization in China because much of it was

unauthenticated. As the Board put it, “foreign documents that

have not been sufficiently authenticated in any manner are not

considered genuine, authentic, [or] objectively reasonable

evidence.” J.A. 5. This was not an abuse of discretion.

To be admissible in an immigration proceeding, a foreign-

government document must “be evidenced by an official

publication thereof, or by a copy attested by an officer so

authorized.” 8 C.F.R. § 1287.6(b)(1). Lin admits that the

evidence from China fails to meet the requirements of this

regulation. Rather, he argues that failure to comply with the

regulation is not itself a sufficient basis for rejecting

evidence as unauthenticated.

While Lin is correct in this regard, the BIA did not, in

fact, conclude that Lin’s documents were unauthenticated solely

because they failed to comply with the regulation. Instead, the

BIA stated that, although Lin’s attorneys “sought information

about some of the documents,” the foreign documents had “not

been sufficiently authenticated in any manner.” J.A. 5

(emphasis added). Lin first suggests that he proffered an

alternative means of authentication by submitting new Chinese

18
documents that “provid[e] context” and confirm the “likely

authenticity” of his previously submitted unauthenticated

documents. Appellant’s Br. at 32-33. In the alternative, Lin

argues that the BIA failed to afford him an opportunity to

authenticate his foreign documents by alternative means.

Sufficient alternative means of authentication include

“provid[ing] information concerning how the document was

obtained, identify[ing] the source of the information contained

in the document, [and] show[ing] that there are consistencies

between the information contained in the otherwise

unauthenticated document and authenticated documents.” Zhu v.

Att’y Gen., 744 F.3d 268, 274 (3d Cir. 2014).

As an initial matter, many of these “authenticating”

documents were previously submitted along with Lin’s first

motion to reopen, compare J.A. 788-89, 797, 805-06, 815-17, 825-

30, with J.A. 1,647-48, 1,652, 1,656-57, 1,662-64, 1,668-73, and

we held that the BIA did not abuse its discretion by rejecting

them as inauthentic at that time. Lin, 452 F. App’x at 372.

With respect to Lin’s newly submitted foreign documents, though

courts have held that authenticity may be alternatively shown by

highlighting consistencies between “otherwise unauthenticated

document[s] and authenticated documents,” Zhu, 744 F.3d at 274,

we reject the argument that unauthenticated documents could

authenticate other unauthenticated documents.

19
Turning to Lin’s argument that the BIA failed to afford him

an opportunity to authenticate the documents from China by

alternative means, the government notes that, following Lin’s

first unsuccessful motion to reopen, this court “provided Lin

with a blueprint for authentication” by suggesting that he

should have provided an affidavit explaining how he acquired the

Chinese documents. Appellee’s Br. at 18; see also Lin, 452 F.

App’x at 372. Yet Lin’s affidavit here makes no mention of how

these documents came into his possession. See J.A. 99. In

light of these omissions, and against the backdrop of our

deferential standard of review, we conclude that it was not an

abuse of discretion for the BIA to determine that it could not

rely on Lin’s documents from China because they had not been

authenticated in any manner.

In addition, many of the documents Lin submitted were

neither new nor previously unavailable, and as such the BIA did

not abuse its discretion in deeming them insufficient to show

that Lin would be subject to sterilization in China. Lin bears

the burden of establishing that the evidence “was not available

and could not have been discovered or presented at the former

hearing.” 8 C.F.R. § 1003.2(c)(1).

Lin included eighty-two exhibits with his second motion to

reopen. See J.A. 115-129; see also J.A. 130-1,290. As the

20
Board pointed out, many of them were previously available, as

evidenced by the fact that they were included with his first

motion to reopen, see J.A. 4-5, the denial of which, as has been

noted, this court affirmed in Lin, 452 F. App’x at 373.

The Board grouped the categories of documents Lin included

with his second motion to reopen, distinguishing those Lin

“previously submitted” from those “additional” materials that

were new. 7 See J.A. 4-5. In fact, sixty-one of the eighty-two

exhibits pre-date the filing of Lin’s first motion to reopen, 8

and Lin fails to provide any explanation as to why they could

not have been discovered or presented earlier. 9 The Supreme

7
Again, although the Board did not also catalog each of the
eighty-two exhibits, it is not required to do so. See Wang, 437
F.3d at 275.
8
The exhibits that pre-date the February 2010 filing of
Lin’s first motion to open are as follows: Exhibits B, E, F, G,
H, I, J, L, M, N, O, P, Q, U, V, W, X, Y, Z, AA, EE, FF, GG, HH,
II, MM, NN, OO, PP, QQ, RR, SS, TT, VV, WW, XX, YY, AAA, BBB,
CCC, DDD, EEE, FFF, GGG, HHH, III, JJJ, KKK, LLL, MMM, NNN, OOO,
PPP, QQQ, RRR, SSS, TTT, UUU, VVV, WWW, XXX. In his second
motion to reopen, Lin relies heavily on several of these
documents to establish changed country conditions, including
Exhibits RR-TT (J.A. 695-721) and AAA-HHH (J.A. 787-876). See
Appellant’s Br. at 32-33. These exhibits range in date from
2005 to 2009, which means that they were available before Lin
filed his first motion to reopen in February 2010.
9
Lin makes repeated, conclusory assertions in his brief
that this evidence is new or previously unavailable, but
provides no explanation as to why. See, e.g., Appellant’s Br.
at 12, 19, 21, 25, 28. Lin also erroneously attributes some
significance to the fact that certain of his pre-February 2010
documents post-date the 2007 Profile. See J.A. 18.

21
Court has noted that “[e]vidence is not previously unavailable

merely because the movant chose not to . . . present evidence

earlier,” Dada v. Mukasey, 554 U.S. 1, 14 (2008) (quoting 1

Gordon § 3.05[8][c], at 3-76.34) (internal quotation mark

omitted), and that evidence of changed country conditions is not

new as long as it “could have been foreseen or anticipated at

the time of the earlier proceeding,” INS v. Doherty, 502 U.S.

314, 326 (1992). The Board did not abuse its discretion in

declining to consider them at this juncture.

With respect to the new documents, the BIA considered and

found them not to be material. For the following reasons, we

agree.

Because Lin’s new evidence was not relevant to his

circumstances, the BIA did not abuse its discretion in deeming

the findings contained therein immaterial. The BIA will reopen

asylum proceedings only if the evidence proves that “a relevant

change in country conditions has occurred.” In re S-Y-G-, 24 I.

& N. Dec. at 251 (emphasis added). As to the twenty-one

documents Lin submitted that either post-date his first motion

to reopen, or are undated, none sheds light on Lin’s specific

22
circumstances. 10 Indeed, even if we consider Lin’s

unauthenticated or previously available evidence, the evidence

of record does not show a relevant, material change in country

conditions because Lin has not made a showing that family

planning policies in China would impact him if he were

repatriated.

First, as was true of most of Lin’s prior evidence, that

which is newly submitted continues to reflect conditions in

10
See, e.g., J.A. 351-55 (2011 FOIA request letter from
Lin’s attorney), J.A. 385-89 (2010 magazine article about a
woman from Puning who was sterilized), J.A. 390-97 (2011
newspaper article about the seizing of children for failure to
pay social compensation fines), J.A. 398-99 (2011 news article
about a woman from Fujian Province who was sterilized), J.A.
448-61 (2011 report detailing case profiles of women mistreated
under the one-child policy), J.A. 462-73 (2010 document about
family planning policies in Chang Le City), J.A. 474-85 (same),
J.A. 602-13 (undated family planning policy of Ying Qian Town
making no reference to forced sterilization), J.A. 614-22
(undated family planning policy of Ying Qian Town referring to
“remedial measures” only in the context of unwanted
pregnancies), J.A. 722-30 (undated FAQ document referring to
sterilization of women in Langqi Town), J.A. 774-86 (2010 family
planning policy for Lian Jiang), J.A. 1,260-62 (2012 article
about a woman who fled from forced sterilization), J.A. 1,263-65
(2012 article indicating that China is launching a program to
stop the use of threats in the promotion of the one-child
policy), J.A. 1,266-68 (2011 article about forced abortions),
J.A. 1,269-70 (2010 FOIA request for documents pre-dating 2007),
J.A. 1,271-77 (2012 FOIA request for shipping codes from 2003),
J.A. 1,278-90 (undated report containing a general discussion of
“unspecified ‘remedial measures’” taken in Fujian Province, J.A.
1284).

23
locales outside of his home region. 11 For example, Exhibits CC

and DD post-date the filing of Lin’s first motion to reopen, but

describe conditions in a city some distance away from Lin’s home

village. See J.A. 463-85. Exhibit CC describes family planning

efforts targeting migrant workers, J.A. 463-73, while Exhibit DD

provides a general outline of an assessment and bonus program

geared toward “rais[ing] the overall level of . . . family

planning work,” J.A. 475, but does not specifically detail

tactics or targets of this work, J.A. 475-85.

Second, as was also true of similar evidence rejected for

the same reason in the prior proceeding, much of Lin’s evidence

pertains to practices involving women. Exhibit RR, for example,

states that “Chinese women whom [sic] have given birth to two

children in a foreign country . . . are required to return to

China and undergo [a] sterilization operation.” J.A. 695

(emphasis added). Similarly, Exhibits BBB and DDD focus

exclusively on the requirement that “women with two or more

children are required to [undergo] sterilization.” J.A. 797,

816. Exhibits R, T, YYY, and AAAA--recent news articles about

family planning efforts in China--also pertain exclusively to

remedial measures taken against women. See J.A. 386 (detailing

11
The evidence pertaining to Lin’s home province is
inauthentic, not relevant, or not new.

24
the Puning Family Planning Bureau’s “Iron Fist Campaign,”

targeting women who had more than one child); J.A. 399

(reporting the story of a woman who was captured and forced to

have sterilization surgery); J.A. 1,261 (stating that a woman in

Fujian Province was held down on an operating table in an

attempt to forcibly sterilize her); J.A. 1,267 (noting that

“Chinese authorities routinely force women to terminate

‘unauthorized’ pregnancies”). In addition to their exclusive

focus on women, they also shed no light on the treatment of men

returning to China with foreign-born children, as we discuss

below.

Third, the evidence of record establishes that, because

Lin’s wife is a U.S. citizen, Lin’s family would be exempt from

China’s sterilization requirements. At oral argument, Lin in

fact conceded that his wife will not be forcibly sterilized due

to her citizenship status, a point supported by the evidence he

submitted. See J.A. 695 (explaining that Chinese women are

required to undergo sterilization “[u]nless they change their

nationalities, then they may be exempt from sterilization”).

Lin nevertheless argues that he remains subject to

sterilization. 12 Lin relies on an entry on the Fujian Population

12
Lin does not explain why or how a family planning policy
could exempt only one member of a married couple.

25
and Family Planning Committee Official Website to support this

assertion. A Chinese man whose wife was a legal resident, but

not a citizen, of another country inquired as to whether the

birth of his two children violated Chinese family planning

policies. The website advises that, for couples “who decide not

to give birth to more children,” it is “highly recommend[ed]”

that they choose “male / female sterilization as their first

choice [contraceptive method].” J.A. 406 (emphasis added).

While this website indicates that sterilization is recommended

as a form of birth control, it does not suggest that it is

required. In the face of evidence that is equivocal at best, we

cannot find that the Board abused its discretion in declining to

rely on it in its current iteration.

Finally, we turn to the BIA’s conclusion that Lin had not

established that the 2007 Profile was “unreliable.” J.A. 6

(internal quotation marks omitted). Lin offered two categories

of new evidence challenging the continued validity of the 2007

Profile: the CECC Reports from 2009 and 2010, see J.A. 131-58,

160-90, and an affidavit of Dr. Flora Sapio, J.A. 192-251.

Turning to the reports first, Lin had previously submitted

the 2009 CECC Report when he filed his first motion to reopen,

and this court upheld the BIA’s determination that the Report’s

“general conclusions”--which focused on women--were

26
“insufficient to demonstrate the likelihood of enforcement

against Lin specifically” and establish changed country

conditions. Lin, 452 F. App’x at 373. The 2010 CECC Report

does not affect this analysis. Although the 2010 CECC Report

updates the 2009 version, it does not provide compelling

evidence of a material change in the law or its enforcement.

See In re S-Y-G-, 24 I. & N. Dec. at 257 (“[A] new report or a

new law is not evidence of changed conditions without convincing

evidence that the prior version of the law was different, or was

differently enforced, in some relevant and material way.”).

In its decision, the Board observed that these CECC reports

indicate that “administrative punishments are used to enforce

the family planning policy.” J.A. 5. Indeed, both the 2009 and

2010 CECC Reports discuss the continuation of population

planning efforts, and specifically the impact on women, but no

evidence in the 2010 CECC Report suggests that the family

planning policies in Fujian Province are differently enforced

against men in any relevant way that would undercut the

continued reliability of the 2007 Profile.

Second, Lin submitted the affidavit of Dr. Flora Sapio as

“‘countervailing’ evidence of country conditions and flaws in

the [2007 Profile].” Appellant’s Br. at 38 (quoting Albasic v.

Mukasey, 547 F.3d 78, 87 n.6 (2d Cir. 2008)). The BIA

explicitly considered Dr. Sapio’s affidavit in its decision,

27
rejecting it because it speculated about the State Department’s

motivations in drafting the 2007 Profile and was not based upon

personal knowledge. J.A. 6. Indeed, “the BIA’s rejection of

Dr. Sapio’s critique has been discussed in at least nineteen

appellate cases from six circuits . . . and not once has a court

of appeals found the BIA’s rejection of Dr. Sapio’s report to

constitute an abuse of discretion.” Ni v. Holder, 715 F.3d 620,

625 (7th Cir. 2013). Here, as in Ni, the BIA acted within its

discretion when it disregarded Dr. Sapio’s report after

considering Dr. Sapio’s arguments and finding her critique of

the 2007 Profile unpersuasive. See Ni, 715 F.3d at 625.

Therefore, as has every other circuit to consider the Sapio

Affidavit, we too find that the BIA did not err in finding it

incredible. Accordingly, the BIA did not abuse its discretion

in determining that Lin’s evidence was not sufficient to

discredit the findings in the 2007 Profile.

For the foregoing reasons, Lin’s petition for review is

DENIED.