Feng Gui Lin v. Eric H. Holder Jr.

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).