Xue Mie Lin v. Attorney General of the United States
Xue Mie Lin v. Attorney General of the United States
Opinion of the Court
OPINION OF THE COURT
Xue Mei Lin petitions for review of an order of the Board of Immigration Appeals (BIA or Board), which denied her motion to reopen her asylum case. We will deny the petition.
I.
Lin, a native and citizen of China, originally applied for asylum and other relief on the grounds of political opinion relating to her participation in the student democratic movement in her home country.
Years later, on April 27, 2007, Lin filed a motion to reopen and to file a successive asylum application, claiming that she was an unwed mother of two children born in the United States. She asserted that the motion was exempt from the ninety-day time restriction on motions to reopen because her motion was based on changed country conditions in China and based on facts not previously available to her. Specifically, Lin contended that she would likely be persecuted as a violator of the one-child rule of the family planning law, because enforcement of the law by forcible sterilization or abortion was becoming more frequent in Fujian Province, her home province. Lin argued in her motion to reopen that the United States Court of Appeals for the Second Circuit had recognized new evidence showing a change in country conditions — that is, a new policy in Fujian Province with regard to enforcement of birth control laws on couples whose children were born abroad. Lin noted that reports had earlier shown that special privileges were extended to returning overseas couples with children born abroad, A.R. 376-77 (1998 U.S. State Department Profile of Asylum Claims for China); but that such was no longer the
On August 21, 2007, the BIA denied the motion. The Board found that Lin’s motion lacked sufficient relevant material evidence to show changed country conditions, and thus the motion was time-barred because it did not fall within any exceptions to the time limitation.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for an abuse of discretion. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir. 2009). In addition, we uphold the BIA’s factual determinations if they are supported by substantial evidence. Id.
We reject Lin’s argument that her case is similar to Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2008), where we vacated the denial of motions to reopen based on the BIA’s failure to discuss the evidentiary record. Here, the BIA discussed most of the documentary evidence provided by Lin. Although Lin is correct that the BIA did not specifically mention some of her submissions, this is not a case like Zheng where the BIA did little more than quote passages from an earlier decision without addressing the evidence contained in the record before it. Id. at 268-69.
First, the Board found that it had previously rejected some of the evidence Lin provided with her motion; specifically, the Aird affidavit and other documentation cited in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006). In Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), which was the Board’s decision after the Second Circuit’s remand in Shou Yung G‘iio, the
Lin argues that the Board “completely ignored the State Department Consular Information Sheet that returning children born in the U.S. with Chinese national parents are to be treated equally as Chinese national children,”
Finally, to the extent Lin’s motion to reopen included an alternative request to file a successive asylum application, which the BIA did not address, we find that no remand is necessary, as we held in Liu v. Attorney General, 555 F.3d 145 (3d Cir. 2009) that, after completion of removal proceedings, any asylum application the alien files must be filed in conjunction with a motion to reopen and must meet the time and numerical limitations on motions to reopen. Id. at 152.
Accordingly, we will deny the petition for review.
. Lin's affidavit in support of her first asylum petition stated that she had one daughter and that she was pregnant with a second child and feared that she would be forced to have an abortion and possibly be sterilized if returned to China. A.R. 399. Her brief to the BIA on direct appeal contains a similar claim. A.R. 179. However, the IJ apparently heard no testimony concerning this claim, and did not comment on the claim.
. We note that this piece of evidence predates the IJ's decision in Lin's case, and that Lin did not assert that this piece of evidence was unavailable at her previous hearing.
. Lin did not raise the issue of relief under the CAT in her opening brief in this Court; the issue is thus waived. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
. In general, a motion to reopen must be filed no later than ninety days after the date of the final administrative decision. See .8 C.F.R. § 1003.2(c)(2). The general rule is subject to some exceptions, such as for changed country conditions, if proffered evidence is material, was not available, and could not have been discovered or presented at the earlier hearing. 8 C.F.R. § 1003.2(c)(3)(ii).
.The petition for review was stayed pending the Court’s decisions in several similar cases. Those cases have been decided, and the parties have filed supplemental briefs addressing those decisions.
. The Government mistakenly states that Lin did not include this evidence with her motion to reopen. Resp. Supp. Br. at 7.
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