[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 4, 2012
No. 11-13719
Non-Argument Calendar JOHN LEY
CLERK
________________________
Agency No. A099-936-386
XING CHEN,
YU CHAI LIN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 4, 2012)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Xing Chen and Yu Chai Lin, natives and citizens of China, seek review of
the Board of Immigration Appeals’s (“BIA”) order denying their motion to reopen
their proceedings following the Immigration Judge’s (“IJ”) denial of asylum
pursuant to the Immigration and Nationality Act (“INA”) § 208(a), 8 U.S.C.
§ 1158(a), and withholding of removal under INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). After review, we affirm.
I. BACKGROUND
A. Asylum Applications
On January 5, 1999, Chen entered the United States at the Canadian border.
In 2000, Lin entered the United States. In October 2006, Chen married Lin, and
their first son, Kevin, was born on September 1, 2006. Lin soon became pregnant
with the couple’s second child.
In March 2007, Chen and Lin applied for asylum. In his application, Chen
stated that he feared returning to China because the Chinese government would
force Lin to abort their second child. If they returned to China after their second
child was born, they would be fined and either Chen or Lin would be forcibly
sterilized by the government. In her application, Lin likewise sought asylum
based on political opinion because she feared being forced to abort her second
child or being forcibly sterilized by the government.
In support of their applications, Chen and Lin submitted many news articles
and transcripts of congressional hearings regarding China’s one-child policy;
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affidavits from other Chinese citizens who had been forcibly sterilized; fine
schedules for violating the one-child policy in various regions; certificates from a
number of villages in China indicating that their family planning policies required
insertion of an intrauterine device after one child and sterilization of one parent
after a second child; letters and identification documents from family and friends
regarding forced sterilizations in China; and personal documents such as birth
certificates, travel documents, passports, and family photos.
They also submitted several State Department reports on China and its
human-rights practices, including one report titled, “China: Profile of Asylum
Claims and Country Conditions” (“2007 Profile”). The 2007 Profile stated that
China’s birth planning policies retained “harshly coercive elements.” Although
the central government prohibited physical coercion to undergo sterilization, there
were “continuing reports of physical coercion to meet birth targets in some areas.”
Further, “U.S. officials in China are not aware of the alleged official policy, at the
national or provincial levels, mandating the sterilization of one partner of couples
that have given birth to two children, at least one of whom was born abroad.”
According to the 2007 Profile, the Fujian Provincial Birth Planning Committee
(“FPBPC”) claimed there were no forced sterilizations in the province within the
last ten years, but it was “impossible to confirm this claim, and, in 2006,
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reportedly, there were forced sterilizations in Fujian.” Finally, the 2007 Profile
noted that documents from China, and particularly from Fujian Province, were
“subject to widespread fabrication and fraud.”
At the merits hearing, Lin testified that she was born in Kefu Village, Tan
Tou Town, Fujian Province, China. Lin filed for asylum in 2007 because she had
violated China’s one-child policy by having two children. She and her husband
came from agricultural families. If they returned to China, they would live with
her husband’s family in Kuei Qi Village, Ma Wei District, in Fujian Province and
would register their children in the household registry system. If they did not
register the children, they would pay a fine and face criminal charges. Lin learned
about China’s one-child policy because some of her relatives and some of Chen’s
relatives were sterilized. Lin testified that, if she and her family returned to China,
either Lin or Chen would be forcibly sterilized and they would be arrested if they
did not pay the fine for having a second child. Lin did not want to be sterilized.
B. IJ’s and BIA’s Decisions
The IJ denied Chen’s and Lin’s asylum applications. After considering the
background evidence and Lin’s testimony, the IJ determined that Chen and Lin
had not provided sufficient evidence to show that they had a well-founded fear of
future persecution. The IJ considered the 2007 Profile, noting that it contradicted
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some of Chen’s and Lin’s assertions. For example, although local enforcement
and regulations varied, the policies were more strictly adhered to in cities than in
rural areas, and Chen and Lin were from a rural area. The IJ also cited to the 2007
Profile in concluding that forced sterilizations and forced abortions were
prohibited, and according to the FPBPC, there had not been a forced sterilization
in Fujian Province in the past ten years. The IJ found the State Department reports
more persuasive than the evidence Chen and Lin provided. Accordingly, the IJ
denied asylum and withholding of removal and ordered Chen and Lin removed to
China.
Chen and Lin appealed to the BIA, which dismissed the appeal. The BIA
concluded that the IJ properly considered the evidence, as shown by the “lengthy
discussion of the evidence in his decision.” The BIA agreed with the IJ that Chen
and Lin had not shown that they were eligible for asylum because they did not
show that the one-child policy was being enforced in their home region “or that
such enforcement efforts would give rise to a well-founded fear of future
persecution due to a violation.” The BIA considered Chen’s and Lin’s
evidence—including two of the villagers’ committee certificates, as well as the
evidence discussed in the BIA’s published cases—determining that there was “no
uniform policy regarding the implementation of the population control law with
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respect to children born outside of China.” The BIA also affirmed the IJ’s
conclusion that “while some individuals may be subject to economic penalties or
sanctions for such births, the [evidence in this case did] not establish penalties or
sanctions rising to the level of persecution.”
Chen and Lin petitioned for review. Denying the petition, this Court held
that substantial evidence supported the IJ’s and BIA’s determination that Chen and
Lin did not have an objectively reasonable well-founded fear of forced
sterilization or persecutory fines. Chen v. U.S. Att’y Gen., 426 F. App’x 717
(11th Cir. 2011).
C. Motion to Reopen
On December 23, 2010, while their petition was pending before this Court,
Chen and Lin timely moved before the BIA to reopen the proceedings to submit
new evidence on their one-child-policy claim and to present a new claim for relief
based on Lin’s practice of Falun Gong. They requested that the case be remanded
to an IJ for reconsideration.
In support of their motion, Chen and Lin submitted an affidavit in which Lin
attested that, in March 2010, Lin began practicing Falun Gong due to her health.
Lin always felt tired after long hours of working in a restaurant and had leg pain
due to standing all day at work. Lin mostly practiced Falun Gong at home, but
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sometimes she practiced at the park “to get a better result.” After having practiced
Falun Gong for a few months, Lin felt less tired, suffered less pain in her legs, and
decided to continue practicing Falun Gong in the future. Lin attested that she
would be detained, beaten, interrogated, and fined by the Chinese government,
which prohibited the practice of Falun Gong. Lin and Chen also feared that one of
them would be sterilized if they returned to China, because they had two children
(although both children were born in the United States). They feared being fined
for their second child. Because they had no means to pay a fine, they feared their
home would be destroyed or they would face other severe punishment.
Chen and Lin also submitted, inter alia: (1) the State Department’s
“International Religious Freedom Report 2007,” which stated that the Chinese
government designated Falun Gong as a “cult” and repressed the practice of Falun
Gong through arrest, detention, imprisonment, and sometimes torture and abuse,
although leaders typically received harsher punishment than practitioners;
(2) several news articles, a book chapter, and a 2006 congressional report on Falun
Gong; (3) a review and evaluation of the 2007 Profile by Dr. Flora Sapio, a guest
lecturer of Contemporary Chinese Studies at a German university, which review
purported to assess the thoroughness, accuracy, and reliability of the 2007 Profile
that Chen and Lin submitted with their original asylum application; (4) documents
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from a hearing before Congress’s Tom Lantos Human Rights Commission (“Tom
Lantos Commission Report”) in November 2009, during which several
organizations and witnesses provided testimony regarding 16 cases of coercive
family planning, such as Chinese officials forcing women to have abortions and
even forcibly inducing labor and killing the baby upon delivery; (5) a portion of
the 2009 Annual Report of the Congressional-Executive Commission on China
(“2009 Congressional-Executive Commission Report”), which indicated that
China “continued” to enforce a policy that interfered with women’s reproductive
rights, that forced abortion was an “official policy instrument” in Fujian Province,
and that, in February 2009, officials within Fujian Province initiated a five-week
campaign of heightened enforcement, using forced abortions; (6) a copy of Zheng
v. Holder, 361 F. App’x 184 (2d Cir. 2010), an unpublished Second Circuit
decision involving an asylum claim for a Chinese petitioner that, like Chen and
Lin, also gave birth to two children while in the United States; (7) an affidavit
from Renzun Yuan, a resident of Qinchuan Village in Fujian, who stated that,
upon his return to China in 2008, he was forcibly sterilized because he had two
American-born children; and (8) five news articles published in 2009 and 2010
documenting sterilization campaigns in Guangdong Province, during which
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government officials detained elderly relatives to persuade their family members
to be sterilized.
The BIA denied the motion to reopen.1 As to Chen’s and Lin’s renewed
claim of persecution under China’s one-child policy, the BIA determined that the
majority of their evidence was new and previously unavailable. However, the BIA
determined that the evidence was insufficient to establish Chen’s and Lin’s prima
facie eligibility for asylum. The BIA considered Dr. Sapio’s critique of the 2007
Profile, but gave more weight to the reliability of the Profile because Dr. Sapio’s
article was not based on personal knowledge, only conjectured regarding the
motivations of the State Department, and speculatively challenged the validity of
the State Department’s sources. The BIA noted that (1) in their initial application
Chen and Lin relied on the 2007 Profile and (2) they had waived an opportunity to
object to the use of the 2007 Profile at the merits hearing before the IJ. The BIA
also determined that Dr. Sapio’s report exhibited an unfavorable bias against the
State Department and other government agencies.
As to the Tom Lantos Commission Report, although it contained anecdotal
evidence, this evidence did not convince the BIA that it had “erred in finding that
1
The BIA issued two separate orders on the motion to reopen, one for Chen and one for
Lin, although the text of each order is materially the same.
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there [was] no country-wide campaign by Chinese authorities to forcibly sterilize
parents returning to China with a second child born abroad.” As to the 2009
Congressional-Executive Commission Report, the BIA noted that Chen and Lin
submitted only 10 pages of the 300-page report and that the submitted portion of
the report discussed occurrences in a province other than Fujian, where Chen and
Lin would return.
The BIA also found that the Second Circuit unpublished decision, cited in
the motion to reopen, had no precedential value, and, further, was distinguishable
on the facts. As to the affidavit from Yuan, the BIA noted that the affidavit was
not notarized, such that the BIA could not be certain of Yuan’s identity or the
reliability of the affidavit. Further, the BIA noted that the affidavit may have been
prepared for the purposes of litigation, and that Chen and Lin did not explain how
they came into possession of Yuan’s affidavit. The BIA also determined that the
submitted news articles did not discuss conditions in Fujian Province, such that
the articles did not support Chen and Lin’s claim. Thus, the BIA determined that
Chen’s and Lin’s new evidence did not establish grounds to reopen their case.
As to Lin’s claim based on her recent commitment to Falun Gong, the BIA
concluded that Lin had not shown prima facie eligibility for relief. The BIA
determined that Lin had not provided any evidence to suggest that the government
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was aware or could become aware of her Falun Gong practice, or that the
government had the inclination to persecute her on account of this practice. The
BIA noted that, although Lin submitted a few news articles regarding the
mistreatment of Falun Gong practitioners in China, the most recent was dated in
2008, such that Lin did not provide information about current conditions in China
for Falun Gong practitioners. The BIA concluded that Lin had not met her heavy
burden of establishing eligibility for asylum. Thus, the BIA denied Chen and
Lin’s motion to reopen as to the Falun Gong claim.
II. DISCUSSION
A party may file only one motion to reopen removal proceedings, and that
motion “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.” 8 U.S.C. § 1229a(c)(7)(A), (B); 8 C.F.R. § 1003.23(b)(3). The BIA
may deny a motion to reopen based on any of the following grounds: “1) failure to
establish a prima facie case; 2) failure to introduce evidence that was material and
previously unavailable; and 3) a determination that despite the alien’s statutory
eligibility for relief, he or she is not entitled to a favorable exercise of discretion.”
Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001); see also 8 C.F.R.
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§ 1003.2(a) (providing that the BIA may deny a motion to reopen even if the alien
establishes a prima facie case for relief).
We review for abuse of discretion the denial of a motion to reopen removal
proceedings. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
The moving party bears a “heavy burden,” and judicial review “is limited to
determining whether the BIA exercised its discretion in an arbitrary or capricious
manner.” Id. Because of the “heavy burden,” the movant must show that, if
proceedings were reopened, “the new evidence would likely change the result in
the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256–57 (11th Cir. 2009).
A. One-Child-Policy Claim
Chen and Lin argue that the BIA abused its discretion in denying their
motion to reopen because they presented additional evidence to establish prima
facie eligibility for asylum based on China’s one-child policy.
We acknowledge that evidence of a recent increased campaign of forced
sterilization in the alien’s home village may warrant reopening of immigration
proceedings. See, e.g., Jiang, 568 F.3d at 1254; Li v. U.S. Att’y Gen., 488 F.3d
1371, 1375 (11th Cir. 2007). Here, however, the BIA did not abuse its discretion
in denying Chen and Lin’s motion to reopen. Much of the evidence Chen and Lin
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submitted was unauthenticated and incomplete, and none of the evidence showed a
recent campaign of forced sterilization in their home village.
Additionally, the BIA did not abuse its discretion by rejecting Dr. Sapio’s
critique of the 2007 Profile because the BIA was entitled to rely on the State
Department reports. See Reyes–Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243
(11th Cir. 2004). We note that Dr. Sapio concedes in her report that “[t]here is no
univocal consensus on whether forced abortions and sterilizations are still used to
implement the family planning policy. Widely different opinions exist. All of
them rest of the available evidence, which is neither conclusive nor
comprehensive.” Given the other evidence in the record, we cannot say that the
BIA abused its discretion in concluding that the new evidence was unlikely to
change the outcome of the proceedings.
B. Falun Gong Claim
Lin argues that the BIA abused its discretion in denying her motion to
reopen as to her Falun Gong asylum claim because she presented evidence that she
practices Falun Gong and that Falun Gong practitioners are persecuted in China.
Here, the BIA did not abuse its discretion by concluding that Lin’s new
Falun Gong evidence did not establish prima facie eligibility for asylum. Lin
presented no evidence that the Chinese government is aware that she practices
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Falun Gong. Thus, it is unclear from the record whether Lin would be singled out
for mistreatment if she returns to China.
Furthermore, even if Chinese authorities learned of Lin’s practice of Falun
Gong, it is not clear whether any response would rise to the level of persecution.
This Court has concluded that “[i]nvolvement with Falun Gong in China by itself
does not entitle a person to asylum in the United States.” Zheng v. U.S. Att’y
Gen., 451 F.3d 1287, 1292 (11th Cir. 2006). And Lin states that she is a
practitioner of Falun Gong, not a leader, and her own evidence shows that the
government reserves the harshest punishment for the movement’s leaders. Finally,
although Lin submitted several news articles discussing mistreatment of Falun
Gong practitioners in China, the most recent of these articles was published in
2008. Thus, Lin failed to present any current evidence of persecution of Falun
Gong practitioners, and she failed to present any evidence that she would be
specifically targeted for persecution.
PETITION DENIED.
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BARKETT, Circuit Judge, specially concurring:
I concur in the majority opinion’s result only because I believe that the
Board of Immigration Appeals did not abuse its discretion in denying the
Petitioners’ motion to reopen.
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