Xiu Juan Lin v. United States Department of Justice
Opinion of the Court
SUMMARY ORDER
Xiu Juan Lin, a native and citizen of Fujian Province in China, seeks review of a March 28, 2006 order of the BIA affirming the September 30, 2004 decision of immigration judge (“IJ”) Jeffrey S. Chase denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture. In re Xiu Juan Lin, No. A79-308-671 (B.I.A. March 28, 2006), aff'g A79-308-671 (Immig. Ct. N.Y. City Sept. 30, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions for the sake of completeness if doing so does not affect our ultimate conclusion. Jigme Wangchuck v. DHS, 448
Lin’s claim for relief is based on her fear of forced sterilization if she is returned to her home city in Fujian Province as a Chinese national who has given birth to a second child while living in the United States. The BIA affirmed the IJ’s conclusion that Lin had failed to submit sufficient evidence to establish that her fear of persecution in this regard was objectively reasonable. The credible evidence that Lin submitted consisted primarily of the “Aird Affidavit” prepared by retired demographer and immigration expert Dr. John S. Aird and her own testimony that she had one child in China and a second while living in the United States.
Documents recently addressed by this Court in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), however, suggest that such a policy may in fact exist. Although Lin has not submitted these documents in support of her claim, they are “too important to ignore,” and we therefore take cognizance of them here as well. See Jin Xiu Chen v. Gonzales, 468 F.3d 109, 111 (2d Cir. 2006) (quoting Tian Ming Lin v. U.S. Dep’t of Justice, 468 F.3d 167, 169 (2d Cir. 2006)). As in Jin Xiu Chen, we remand to the BIA so that it may determine whether these documents establish the existence of an official policy of sterilization in Fujian Province and whether, given that policy, Lin’s fear of persecution is objectively reasonable. See id.
The scope of this remand is narrow and encompasses only Lin’s (and her husband’s) withholding of removal claim. The BIA found that Lin and her husband did not merit asylum as a matter of discretion. Its decision was based on the facts that Lin and her husband had each previously submitted fraudulent asylum applications, that Lin obtained a fabricated abortion certificate from China, and that she and her husband had purposely under-reported their income in the United States to reduce their tax liability. This does not amount to an abuse of discretion. See Wu Zheng Huang v. INS, 436 F.3d 89, 98 (2d Cir. 2006) (listing criminal behavior and “significant violations of national immigration laws” as relevant adverse factors); see
For the foregoing reasons, the petition for review is GRANTED in part. We VACATE in part the decision of the BIA and REMAND for further proceedings consistent with this decision. The petition for review is DISMISSED in all other respects.
. Lin had also testified that her sister and one of her friends had been sterilized and that the cadres had warned her sister-in-law that Lin was in violation of the family planning policy and would be sterilized upon her return to China. The IJ found this testimony to be incredible, and the BIA agreed. This deter-ruination is supported by substantial evidence in the record and will not be set aside. The adverse credibility finding did not extend, however, to Lin's testimony regarding the number of children she had, which the IJ clearly found credible.
Reference
- Full Case Name
- XIU JUAN LIN v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General, Alberto R. Gonzales
- Status
- Published