FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FENG GUI LIN, AKA Fenggui Lin,
Petitioner, No. 08-71227
v.
Agency No.
A076-280-320
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 5, 2009—Las Vegas, Nevada
Filed December 3, 2009
Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Ralph R. Beistline,* District Judge.
Opinion by Judge Rawlinson
*The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
15841
LIN v. HOLDER 15845
COUNSEL
Gary J. Yerman, New York, New York, on behalf of peti-
tioner Feng Gui Lin.
Michael C. Heyse, Washington, DC, on behalf of respondent
Eric H. Holder Jr.
OPINION
RAWLINSON, Circuit Judge:
This case requires us to address a series of motions to
reopen seeking to file successive asylum petitions on the the-
ory that China’s family planning policies have become more
stringent since the time of the original removal proceedings.
Feng Gui Lin (Lin), the petitioner in this case, specifically
asserts that because she now has children, she fears that she
will be forcibly sterilized if returned to China. We are unper-
suaded that the sterilization policies in China have changed to
the degree that relief is warranted. We deny Lin’s petition.
I. BACKGROUND
Lin is a native and citizen of China. She was served with
a Notice to Appear in April, 1999. Lin filed an application for
asylum, asserting that she was persecuted in China because of
her involvement with her boyfriend who was in the army. In
March, 2000, the immigration judge (IJ) denied Lin’s applica-
tions for relief and ordered her removed to China. The BIA
summarily affirmed the IJ’s decision.
15846 LIN v. HOLDER
Lin did not return to China. Rather, in 2005, Lin married
Xing Xiong Dong, a legal permanent resident (LPR) of Chi-
nese descent. In 2007, Lin submitted a motion to reopen to the
BIA based on changed country conditions. Lin argued that
circumstances in China had changed since her 2000 hearing,
specifically that forcible sterilizations had been mandated by
government officials in the Fujian province, her birthplace,
for Chinese citizens who had more than one child abroad.
Lin’s affidavit in support of her motion to reopen indicated
that she gave birth to a girl in 2006, a boy in 2007, and was
expecting her third child to be born in May, 2008.
Lin also submitted an affidavit from her mother attesting to
the forced sterilization of Lin’s sister and sister-in-law. In
addition, she included a letter from the Lianxing village in the
Fujian province, informing Lin that people who have two
children must undergo sterilization procedures after their sec-
ond child’s birth, and that because Lin was neither a citizen
of the United States nor a permanent resident, she would be
treated as a Chinese citizen subject to the family planning
laws. The letter indicated that upon her return and the regis-
tration of her children, she “must undergo the required family
planning procedures as all other local people did . . . ”
Other documents in evidence were: an issuance addressing
Zheng Yu He, a specific Chinese individual, who ostensibly
violated the family planning laws while overseas; a 2003
administrative opinion from Changle City Family-Planning
Administration regarding Zheng Yu He’s violation of the
family planning laws; a 2003 administrative decision from the
Fujian Province family planning administration department
regarding Zheng Yu He’s violation; a chart of the fees
assessed against Chinese parents based on different violations
of the family planning laws; a July, 1999, question and
answer session from Chang Le City referencing the steriliza-
tion requirement after the birth of a second child; a 2007
notice from Changquing village in Chang Le City requiring
sterilization after the second child; a document describing
LIN v. HOLDER 15847
monetary incentives for those who undergo sterilization dated
2007; the 2006 United States State Department Report on
China’s Human Rights Practices; an affidavit and other docu-
ments relating to an individual named Chen, Jin Fu from
Changle who was subjected to forced sterilization upon
returning from abroad; various news articles; and other sup-
porting documents.
The Board of Immigration Appeals (BIA) denied Lin’s
motion to reopen, concluding that the submitted evidence did
not establish a material change in country conditions, such
that Lin now had an objective well-founded fear of persecu-
tion or faced a clear probability of persecution. Lin filed a
timely petition for review.
II. STANDARD OF REVIEW
[1] Although we have jurisdiction under 8 U.S.C. § 1252(a)
to review the denial of a motion to reopen, we start from the
premise that “[m]otions to reopen are discretionary and disfa-
vored.” Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir.
2007) (footnote reference and internal quotation marks omit-
ted). “We review for abuse of discretion the BIA’s denial of
a motion to reopen.” He v. Gonzales, 501 F.3d 1128, 1130-31
(9th Cir. 2007) (citation omitted). “The decision of the BIA
should be left undisturbed unless it is arbitrary, irrational, or
contrary to law.” Id. at 1131 (citation and internal quotation
marks omitted).
At oral argument, government counsel contended that the
BIA’s decisions in Matter of J-H-S-, 24 I&N Dec. 196 (BIA
2007), Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007), and
Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007), should be
afforded deference under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984) as “an
interpretation of what it means to be a refugee.” Counsel spe-
cifically expressed that Chevron deference should be
extended to the BIA’s “case-by-case” formulation of a policy
15848 LIN v. HOLDER
position on changed country conditions vis à vis enforcement
of China’s family planning policies. In Matter of J-H-S-, the
BIA concluded that “an alien who has established that he or
she has had two children in China may qualify as a refugee
if the evidence presented establishes, on a case-by-case basis,
that the births violated family planning policies in that alien’s
local province, municipality, or other locally-defined area,
and that current local family planning enforcement efforts
would give rise to a well-founded fear of persecution because
of the violation.” 24 I&N Dec. at 197-98. Applying this
framework to the petitioner in that case, the BIA found that
the record did “not clearly show that the birth of petitioner’s
second child would be viewed as a violation of family plan-
ning policies in Fujian Province,” and that even if it would,
the record lacked persuasive evidence that the birth would
trigger enforcement activity rising to the level of persecution.
Id. at 202 (footnote reference omitted). Specifically, the BIA
noted that although the 2006 Country Report documented
reports of forced sterilization in that province, the 2007
Report indicated that State Department interviews with visa
applicants from the Fujian Province yielded no evidence of
forced abortions and that countrywide enforcement was
uneven. Id. at 202-03. Noting that physical coercion continues
to be officially condemned, the BIA concluded that petitioner
“ha[d] not carried his burden of showing that he [had] a well-
founded fear of persecution in China on account of fathering
two children.” Id. at 203.
In Matter of J-W-S-, the BIA considered whether the peti-
tioner, who had two United States citizen children, could
qualify for asylum. Specifically, the issue was whether Peti-
tioner had established that he would be subjected to forced
sterilization upon his return to China. See 24 I&N Dec. at 189.
The BIA observed that the most recent country reports indi-
cated that children born overseas are not counted for birth
planning purposes when the parents return to China. See id.
at 190. It further noted that the 2005 Country Report did not
contain any instances of returnees from the United States
LIN v. HOLDER 15849
being forced to undergo sterilization procedures on their
return. See id. at 191. The BIA expressly referenced a
response from Chinese officials in the Fujian Province “that
children born abroad, if not registered as permanent residents
of China . . . are not counted against the number of children
allowed under China’s family planning laws.” Id. at 193
(emphasis added).
In Matter of S-Y-G-, the BIA again applied the “case-by-
case” framework established in J-H-S-. See 24 I&N Dec. at
251. In doing so, the BIA noted that the petitioner failed to
address evidence in the record that children born abroad were
not counted for the purpose of enforcing China’s family plan-
ning policies. See id. at 255. The government urges us to
glean from these three cases a definition of “refugee” that
would bar relief for Lin.
[2] “Generally, we accord Chevron deference where there
is binding agency precedent on-point (either in the form of a
regulation or a published BIA case).” Park v. Holder, 572
F.3d 619, 623-24 (9th Cir. 2009) (holding BIA regulation
defining domicile was reasonable interpretation of statute at
issue where statute was silent regarding the meaning of domi-
cile) (citation and alteration omitted); see also Fregozo v.
Holder, 576 F.3d 1030, 1034-35 (9th Cir. 2009) (recognizing
that Chevron deference is applicable to the BIA’s construction
of statutory terms in the Immigration and Nationality Act).
Here, the government appears to argue that the BIA’s “case-
by-case” approach deserves Chevron deference. At least one
other circuit has determined that the BIA’s construction of 8
U.S.C. § 1101(a)(42)’s definition of refugee, favoring “case-
by-case review” in lieu of a “categorical application of the
well-founded fear provision to such claims,” merits Chevron
deference. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 224
n.6 (2d Cir. 2009). Because the issue of Chevron deference
was not briefed by the parties or fleshed out during oral argu-
ment, we elect not to resolve the Chevron issue in this opin-
ion. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066
15850 LIN v. HOLDER
(9th Cir. 2004) (declining to address issue raised by party at
oral argument but not mentioned in either party’s brief). Def-
erence aside, we agree with the BIA that case-by-case consid-
eration is appropriate. We have consistently adhered to
individualized analysis when determining whether changed
country conditions warrant withholding of removal. See, e.g.,
Maharaj v. Gonzales, 450 F.3d 961, 978 (9th Cir. 2006)
(remanding where BIA failed to make an individualized deter-
mination as to the effect of changed country conditions). We
see no principled basis to depart from this precept when deter-
mining whether changed country conditions warrant reopen-
ing of a Petitioner’s asylum case.
III. DISCUSSION
A. Motion to Reopen Requirements
An alien must file a motion to reopen within ninety days of
the date of entry of a final order of removal. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). How-
ever, “[t]here is no time limit on the filing of a motion to
reopen” for asylum applications “based on changed country
conditions arising in the country of nationality or the country
to which removal has been ordered.” Id. § 1229a(c)(7)(C)(ii);
see also Chen v. Mukasey, 524 F.3d 1028, 1030 (9th Cir.
2008); 8 C.F.R. § 1003.2(c)(3)(ii).
Lin argues that the BIA incorrectly determined that her
motion to reopen did not meet the changed country conditions
exception. Lin asserts that she submitted evidence demon-
strating that due to changed country conditions in China she
faces sterilization if returned to that country.
We have previously concluded that “the birth of children
outside the country of origin is a change in personal circum-
stances that is not sufficient to establish changed circum-
stances in the country of origin within the regulatory
exception to late-filed or successive motions to reopen under
LIN v. HOLDER 15851
8 C.F.R. § 1003.2(c)(3)(ii).” He, 501 F.3d at 1132. Lin, how-
ever, asserts that her motion was predicated not on the change
in her personal circumstances, but on evidence that “the
implementation and enforcement of the family planning pol-
icy in [Lin’s] home village and province, subsequent to her
prior hearing” has become more stringent. Lin argues that
because the Fujian province enforces the family planning pol-
icy through forced sterilization, she has a well-founded fear
that given the number of children she has, she will be forcibly
sterilized upon her return to China. That well-founded fear
would, in turn, qualify her for asylum as a refugee. See 8
U.S.C. § 1101(a)(42).
[3] To prevail on her motion to reopen, Lin “needed to
clear four hurdles: (1) [s]he had to produce evidence that con-
ditions had changed in [China]; (2) the evidence had to be
material; (3) the evidence must not have been available and
would not have been discovered or presented at the previous
proceeding; and (4) [s]he had to demonstrate that the new evi-
dence, when considered together with the evidence presented
at the original hearing, would establish prima facie eligibility
for the relief sought.” Toufighi v. Mukasey, 538 F.3d 988, 996
(9th Cir. 2008), as amended (citations and internal quotation
marks omitted). Failure to meet any one of these burdens
would support the BIA’s denial of Lin’s motion to reopen.
See id.
The BIA determined that the evidence proffered by Lin did
not establish that conditions in China had “changed materially
since [Lin’s] last hearing such that [she] would now have an
objective well-founded fear of persecution, or face a clear
probability of persecution, upon her return to China.” Upon
review, we conclude that the BIA acted within its discretion
in reaching this determination.
[4] In making its ruling, the BIA thoroughly considered and
addressed the evidence presented by Lin. In discussing the
statement from Lin’s mother describing forced sterilization of
15852 LIN v. HOLDER
Lin’s sister and sister-in-law, the BIA mentioned that the
mother’s description was cursory, and did not contain suffi-
cient detail to warrant a conclusion that the sterilizations met
the regulatory definition of a forced sterilization. Moreover,
the BIA observed that there was no indication in the statement
that Lin’s sister and sister-in-law were similarly situated to
Lin, and that Lin did not mention her sister’s forced steriliza-
tion in her own affidavit.
[5] The BIA also evaluated the letter from the village
regarding family planning laws, noting that the letter does not
reflect that the law has changed or enforcement of the law has
changed. More importantly, the BIA recognized that the letter
failed to address the fact that Lin’s husband had permanent
resident status in the United States and how that status would
affect application of the family planning laws. The BIA relied
on the precedential cases of Matter of J-H-S-, Matter of J-W-
S-, and Matter of S-Y-G-, finding that the documents submit-
ted by Lin were “the same or similar” to the documents in the
three precedential cases that were likewise found inadequate
to establish changed country conditions in China.
[6] The BIA’s detailed analysis of the documentation sub-
mitted by Lin distinguishes this case from Shou Yung Guo v.
Gonzales, 463 F.3d 109 (2d Cir. 2006), a case relied upon by
Lin. In Guo, the Second Circuit granted the petition for
review primarily because the BIA, in deciding the motion to
reopen in that case, apparently never “really paid any atten-
tion to the documents” submitted by the Petitioners. Id. at
115. Because the BIA “paid attention” to the documents sub-
mitted by Lin and explained why those documents did not
meet Lin’s burden to establish changed country conditions,
this significant distinction between the two cases persuades us
that Guo should not influence the outcome of this case.
Decisions from other circuit courts on which Lin relies are
also distinguishable. Xiu Zhen Lin v. Mukasey, 532 F.3d 596,
597 (7th Cir. 2008), involved a village committee letter spe-
LIN v. HOLDER 15853
cifically stating “that the village ‘strictly enforces The Popula-
tion and Family Planning Ordinance in Fujian Province,’ that
‘all citizens with two children will be designated as a target
for sterilization,’ and ‘although you currently reside in the
United States, you are still a citizen of the People’s Republic
of China. It is known that you have had three children. You
certainly will be subjected to sterilization procedures . . . ’ ”
(emphasis added). The Seventh Circuit’s decision also reflects
its dismay occasioned by the BIA’s statement that despite the
petitioner’s letter (the authenticity of which was not in ques-
tion in that case), the petitioner had failed to provide evidence
“ ‘that the policy is implemented through physical force or
other means that would amount to persecution.’ ” Id. at 597.
Lin’s citation to Zheng v. Attorney General, 549 F.3d 260,
263 (3d Cir. 2008), is similarly unpersuasive. Zheng submit-
ted a village letter indicating that “ ‘although you are cur-
rently residing in the United States, you are still a citizen of
the People’s Republic of China who had three children, and
therefore you will definitely be targeted to [sic] steriliza-
tion.’ ” Id. (citation and alteration omitted). The Third Circuit
was influenced by the BIA’s failure to address much of the
evidence, including petitioner-specific evidence, such as
Zheng’s affidavit and letter to him from Changle City. See id.
at 268-69. In doing so, however, the court recognized that the
BIA need not parse every piece of evidence, and implicitly
recognized that citation to BIA precedent discussing such evi-
dence may be sufficient. See id. at 268-69.
[7] In this case, the BIA admittedly did not specifically
address some of the evidence submitted by Lin, including the
2006 Country Report. Nevertheless, the BIA explicitly con-
sidered much of the evidence Lin provided, especially the evi-
dence that was specific to her. As the Third Circuit noted,
although the BIA must consider a petitioner’s evidence of
changed country conditions, it need not expressly refute on
the record every single piece of evidence. See id.; see also
Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that
15854 LIN v. HOLDER
this is particularly the case for evidence that the BIA is asked
to consider “time and again”) (citation omitted).
The importance of individualized consideration of these
matters is reinforced by the Third Circuit’s recent precedent
distinguishing Zheng. See Liu v. Attorney General of the
United States, 555 F.3d 145 (3d Cir. 2009). In Liu, the Third
Circuit attributed its holding in Zheng to the fact that “the
BIA did not consider adequately the materials that the peti-
tioners had submitted with their applications to reopen . . . ”
Id. at 149. The Third Circuit rejected Liu’s argument that the
2006 Country Report established changed country conditions.
Rather, according to the Third Circuit, the 2006 Report docu-
mented that the Chinese government “continue[d] its popula-
tion control policy . . . ” Id. The Third Circuit also credited
the BIA’s conclusion in Matter of J-W-S- that the “Chinese
government does not have a national policy requiring forced
sterilization of a parent who returns with a second child born
outside of China.” Id. at 149-50.
[8] We agree with the Third Circuit that the BIA’s prece-
dential decision, Matter of J-W-S-, forecloses Lin’s argument
that her United States citizen children will trigger the enforce-
ment of coercive population control measures against her
should she return to China. For that reason, we are singularly
unpersuaded by Lin’s reliance on Li v. United States Attorney
General, 488 F.3d 1371, 1376 (11th Cir. 2007) and its prog-
eny, Jiang v. United States Attorney General, 568 F.3d 1252,
1258 (11th Cir. 2009).
We also note that in contrast to the cases relied on by Lin,
the BIA explicitly addressed the village letter submitted by
Lin. That letter stated that Lin would be subject to China’s
family planning laws because she was neither a United States
citizen nor a legal permanent resident. Thus, the letter to Lin
supports a conclusion that legal permanent resident status in
the United States has a bearing on China’s family planning
policy implementation. Yet, as the BIA noted, the letter to Lin
LIN v. HOLDER 15855
does not mention Lin’s husband’s status as a legal permanent
resident, or give any indication how his status would affect
application of the family planning policies to Lin.
There is substantial uniformity among the circuits on this
issue. Indeed, considering evidence similar to that submitted
by Lin, several circuits have denied relief. See, e.g., Zheng v.
Mukasey, 546 F.3d 70, 72-73 (1st Cir. 2008) (denying petition
based on evidence similar to Lin’s, including the 2006 Coun-
try Report); Shao v. Mukasey, 546 F.3d 138, 159 (2d Cir.
2008) (same); Huang v. Mukasey, 523 F.3d 640, 643, 655 (6th
Cir. 2008) (denying petition, crediting BIA’s finding “that
children born abroad are not counted for birth planning pur-
poses when the parents return to China”), citing S-Y-G-, 24
I&N Dec. at 255 (alteration, parallel citation and internal quo-
tation marks omitted); Lin v. Gonzales, 435 F.3d 708, 711
(7th Cir. 2006) (denying petition predicated on the much-cited
Aird affidavit); Zheng v. Mukasey, 523 F.3d 893, 896 (8th
Cir. 2008) (concluding that there was a lack of “evidence of
changed circumstances”) (emphasis in the original); Wei v.
Mukasey, 545 F.3d 1248, 1254-55 (10th Cir. 2008) (same).
[9] On the record before us, the BIA’s determination that
the documents submitted by Lin failed to establish a change
in the family planning laws or enforcement of those laws was
not “arbitrary, irrational, or contrary to law.” He, 501 F.3d at
1131. Documents submitted by Lin that predate her March,
2000, removal hearing are consistent with documents dated
after her removal hearing. For example, the series of ques-
tions and answers regarding Chang Le City’s family planning
policies indicated that sterilization is expected after the sec-
ond child. The “Notice” dated January 23, 2007, from Chang
Le City’s Changquing Village Committee similarly indicated
that Chinese citizens with two children shall undergo steriliza-
tion. The 2007 notice in no way reflected a change in the law
or any intent to enforce this provision more strictly. Thus, it
cannot be fairly argued that these documents established a
change in country conditions. See id. at 1133 (concluding that
15856 LIN v. HOLDER
documentary evidence was insufficient to establish changed
country conditions where no showing of a change in policy
was evident). As government counsel pointed out during oral
argument, both the 1998 and 2006 Country Reports reflect
that forced abortion and sterilization are generally prohibited,
but in the Fujian province such practices have been known to
occur. Therefore, the 2006 report does not document a change
in country conditions from the time of Lin’s original hearing.
Tellingly, during oral argument, Lin’s counsel conceded
that he knew of no evidence in existence that an individual
similarly situated to Lin—that is, a returnee whose spouse has
LPR status and whose children are United States citizens—
was subjected to forced sterilization upon returning to China.
Rather, counsel relied on a 2003 Fujian Province Administra-
tive Decision providing, “if either parent remains a Chinese
national and citizen without permanent residence overseas
any child of such a couple shall be treated as a Chinese
national and citizen for domestic administrative purposes
regardless of the child’s nationality conferred by his or her
country of birth.” However, the specific circumstances dis-
cussed were that the Chinese government employee and his
spouse had a second child on a “family visit” to the United
States. The circumstance addressed in the directive was so
dissimilar to Lin’s circumstance that the BIA was not com-
pelled to credit the directive as conclusive evidence. More
importantly, the directive merely stated that the “violation is
. . . subject to sanctions and penalties,” without explication.
There was no indication whatsoever that the “sanctions and
penalties” would include sterilization, forced or otherwise.
[10] In sum, the BIA’s determination that the evidence Lin
submitted did not establish a material change in China’s coun-
try conditions was not “arbitrary, irrational, or contrary to
law.” Id. at 1131. Accordingly, we conclude that the BIA
acted within its discretion when it denied Lin’s motion to
reopen.
LIN v. HOLDER 15857
B. Availability of a Successive Asylum Application
[11] Lin submits that independent of her motion to reopen,
under 8 U.S.C. § 1158(a)(2)(D), she is entitled to file a free-
standing successive asylum application.1 This argument is
foreclosed by our prior precedent. See Chen, 524 F.3d at
1032. In Chen, we determined that “[i]t was reasonable for the
BIA to conclude that to permit such an avoidance of the time
and number limits on motions to reopen [by allowing a free-
standing claim for asylum under § 1158(a)(2)(D)] would
make nonsense of the more restrictive exception in
§ 1229a(c)(7).” Id. The only avenue available for Lin to file
her successive asylum application is through a successful
motion to reopen. Because Lin’s motion to reopen was prop-
erly denied, she cannot file a successive asylum application.
See id.
IV. CONCLUSION
The BIA did not abuse its discretion when it denied Lin’s
motion to reopen. The evidence Lin submitted was insuffi-
cient to establish a material change in country conditions
regarding sterilization laws or the enforcement of those laws.
Lin’s attempt to file a free-standing successive asylum appli-
cation under 8 U.S.C. § 1158(a)(2)(D) is foreclosed by our
precedent.
PETITION DENIED.
1
Section 1158(a)(2)(D) provides an exception to the number and time
limits on applying for asylum (set forth in 8 U.S.C. § 1158(a)(2)(B), (C)),
for an alien who can demonstrate "the existence of changed circumstances
which materially affect the applicant’s eligibility for asylum . . . " 8 U.S.C.
§ 1158(a)(2)(D).