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Chinese Woman Claims Fear of Forced Sterilization Absent Asylum

Lin v. Holder, Case No. 08-71227 (C.A. 9, Dec. 3, 2009)

This case requires us to address a series of motions to reopen seeking to file successive asylum petitions on the theory 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 unpersuaded that the sterilization policies in China have changed to the degree that relief is warranted. We deny Lin’s petition.

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 applications for relief and ordered her removed to China. The BIA summarily affirmed the IJ’s decision.

Lin did not return to China. Rather, in 2005, Lin married Xing Xiong Dong, a legal permanent resident (LPR) of Chinese 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 second 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 registration of her children, she “must undergo the required family planning procedures as all other local people did . . . ”


Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Circuit Court Judge(s)
Ronald Gould
Johnnie Rawlinson

Trial Court Judge(s)
Ralph Beistline

Petitioner Lawyer(s) Petitioner Law Firm(s)
Gary J. Yerman

Respondent Lawyer(s) Respondent Law Firm(s)
David V. Bernal United States Department of Justice
Michael Christopher Heyse United States Department of Justice
Liza Murcia United States Department of Justice
Jennifer Paisner Williams United States Department of Justice



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of statutory terms in the immigration and nationality act). [6] the bia's detailed analysis of the documentation sub- lin's attempt to file a free-standing successive asylum appli- of china's family planning policies. in matter of j-h-s-, the zheng yu he, a specific chinese individual, who ostensibly resources defense council, inc., 467 u.s. 837 (1984) as "an planning procedures as all other local people did . . . " lin did not return to china. rather, in 2005, lin married that she gave birth to a girl in 2006, a boy in 2007, and was id. at 149. the third circuit rejected liu's argument that the make nonsense of the more restrictive exception in united states, 555 f.3d 145 (3d cir. 2009). in liu, the third national and citizen for domestic administrative purposes (emphasis added). marks omitted). uneven. id. at 202-03. noting that physical coercion continues motion to reopen. because lin's motion to reopen was prop- regardless of the child's nationality conferred by his or her local province, municipality, or other locally-defined area, [3] to prevail on her motion to reopen, lin "needed to (9th cir. 2008), as amended (citations and internal quotation circuit judges, and ralph r. beistline,* district judge. national and citizen without permanent residence overseas cannot be fairly argued that these documents established a 15846 lin v. holder 1131. documents submitted by lin that predate her march, erence aside, we agree with the bia that case-by-case consid- tellingly, during oral argument, lin's counsel conceded 15856 lin v. holder circuit attributed its holding in zheng to the fact that "the opinion for sterilization,' and `although you currently reside in the asylum, asserting that she was persecuted in china because of lin is a native and citizen of china. she was served with issue. indeed, considering evidence similar to that submitted ted a village letter indicating that " `although you are cur- f.3d 619, 623-24 (9th cir. 2009) (holding bia regulation children born abroad are not counted for birth planning pur- i&n dec. at 255 (alteration, parallel citation and internal quo- for an alien who can demonstrate "the existence of changed circumstances case" framework established in j-h-s-. see 24 i&n dec. at well-founded fear provision to such claims," merits chevron 1032. in chen, we determined that "[i]t was reasonable for the dence that was specific to her. as the third circuit noted, tion and family planning ordinance in fujian province,' that [2] "generally, we accord chevron deference where there ever, asserts that her motion was predicated not on the change affect application of the family planning laws. the bia relied ing of a petitioner's asylum case. recognized that citation to bia precedent discussing such evi- the forced sterilization of lin's sister and sister-in-law. in meet lin's burden to establish changed country conditions, mented that the chinese government "continue[d] its popula- fujian province, informing lin that people who have two bia to conclude that to permit such an avoidance of the time 15845lin v. holder proceeding; and (4) [s]he had to demonstrate that the new evi- changed country conditions, it need not expressly refute on 8 c.f.r. 1003.2(c)(3)(ii)." he, 501 f.3d at 1132. lin, how- asserts that because she now has children, she fears that she citizen nor a legal permanent resident. thus, the letter to lin matters is reinforced by the third circuit's recent precedent united states, you are still a citizen of the people's republic documentary evidence was insufficient to establish changed laws. the letter indicated that upon her return and the regis- 2008); 8 c.f.r. 1003.2(c)(3)(ii). cir. 2008) (denying petition, crediting bia's finding "that of china. it is known that you have had three children. you returning from abroad; various news articles; and other sup- (emphasis added). the seventh circuit's decision also reflects similarly situated to lin--that is, a returnee whose spouse has we have previously concluded that "the birth of children position on changed country conditions vis vis enforcement although the bia must consider a petitioner's evidence of icy through forced sterilization, she has a well-founded fear in matter of j-w-s-, the bia considered whether the peti- dissimilar to lin's circumstance that the bia was not com- [7] in this case, the bia admittedly did not specifically the regulatory definition of a forced sterilization. moreover, that her united states citizen children will trigger the enforce- the bia determined that the evidence proffered by lin did answer session from chang le city referencing the steriliza- tation marks omitted); lin v. gonzales, 435 f.3d 708, 711 s-, and matter of s-y-g-, finding that the documents submit- circumstances in china had changed since her 2000 hearing, dential decision, matter of j-w-s-, forecloses lin's argument probability of persecution, upon her return to china." upon on the precedential cases of matter of j-h-s-, matter of j-w- 2007) (footnote reference and internal quotation marks omit- would bar relief for lin. 15849lin v. holder reflect that the law has changed or enforcement of the law has premise that "[m]otions to reopen are discretionary and disfa- 263 (3d cir. 2008), is similarly unpersuasive. zheng submit- states. the circumstance addressed in the directive was so ond child. the "notice" dated january 23, 2007, from chang sterilization of a parent who returns with a second child born tive decision providing, "if either parent remains a chinese (remanding where bia failed to make an individualized deter- regarding sterilization laws or the enforcement of those laws. address some of the evidence submitted by lin, including the [9] on the record before us, the bia's determination that motion to reopen did not meet the changed country conditions there is substantial uniformity among the circuits on this application of the family planning policies to lin. id. at 202 (footnote reference omitted). specifically, the bia poses when the parents return to china"), citing s-y-g-, 24 tions and answers regarding chang le city's family planning precedent. cifically stating "that the village `strictly enforces the popula- issue where statute was silent regarding the meaning of domi- iv. conclusion her involvement with her boyfriend who was in the army. in government officials in the fujian province, her birthplace, motion to reopen. the evidence lin submitted was insuffi- on petition for review of an order of the that he knew of no evidence in existence that an individual sterilization upon his return to china. see 24 i&n dec. at 189. supports a conclusion that legal permanent resident status in v. agency no. eny, jiang v. united states attorney general, 568 f.3d 1252, failed to address the fact that lin's husband had permanent the bia explicitly addressed the village letter submitted by outside the country of origin is a change in personal circum- cated that children born overseas are not counted for birth for the ninth circuit feng gui lin, aka fenggui lin, erly denied, she cannot file a successive asylum application. aird affidavit); zheng v. mukasey, 523 f.3d 893, 896 (8th administrative opinion from changle city family-planning mitted by lin and explained why those documents did not that chinese citizens with two children shall undergo steriliza- should she return to china. for that reason, we are singularly filed december 3, 2009 if the evidence presented establishes, on a case-by-case basis, lin argues that the bia incorrectly determined that her in country conditions from the time of lin's original hearing. reports of forced sterilization in that province, the 2007 that lin's sister and sister-in-law were similarly situated to sterilized upon her return to china. that well-founded fear policies indicated that sterilization is expected after the sec- . . . subject to sanctions and penalties," without explication. allowed under china's family planning laws." id. at 193 stances in the country of origin within the regulatory other documents in evidence were: an issuance addressing petitioner's letter (the authenticity of which was not in ques- faces sterilization if returned to that country. prior hearing" has become more stringent. lin argues that 15857lin v. holder michael c. heyse, washington, dc, on behalf of respondent this case requires us to address a series of motions to district of alaska, sitting by designation. reopen. regulation or a published bia case)." park v. holder, 572 that given the number of children she has, she will be forcibly maharaj v. gonzales, 450 f.3d 961, 978 (9th cir. 2006) trigger enforcement activity rising to the level of persecution. 2008) (same); huang v. mukasey, 523 f.3d 640, 643, 655 (6th reopen" for asylum applications "based on changed country the importance of individualized consideration of these clear four hurdles: (1) [s]he had to produce evidence that con- other circuit has determined that the bia's construction of 8 bia did not consider adequately the materials that the peti- not establish a material change in country conditions, such review primarily because the bia, in deciding the motion to dence, when considered together with the evidence presented tration of her children, she "must undergo the required family forced abortions and that countrywide enforcement was country conditions warrant withholding of removal. see, e.g., general, 488 f.3d 1371, 1376 (11th cir. 2007) and its prog- stringent since the time of the original removal proceedings. addition, she included a letter from the lianxing village in the petition denied. in her personal circumstances, but on evidence that "the under 8 u.s.c. 1158(a)(2)(d), she is entitled to file a free- motion to reopen, concluding that the submitted evidence did at oral argument, government counsel contended that the mination as to the effect of changed country conditions). we icy in [lin's] home village and province, subsequent to her summarily affirmed the ij's decision. a. motion to reopen requirements 15853lin v. holder her successive asylum application is through a successful ion. see edwards v. marin park, inc., 356 f.3d 1058, 1066 review, we conclude that the bia acted within its discretion 2007; the 2006 united states state department report on wang v. bia, 437 f.3d 270, 275 (2d cir. 2006) (noting that tion.' " id. (citation and alteration omitted). the third circuit not "arbitrary, irrational, or contrary to law." he, 501 f.3d at in matter of s-y-g-, the bia again applied the "case-by- rently residing in the united states, you are still a citizen of afforded deference under chevron u.s.a., inc. v. natural lin's affidavit in support of her motion to reopen indicated n.6 (2d cir. 2009). because the issue of chevron deference not establish that conditions in china had "changed materially counsel bia's decisions in matter of j-h-s-, 24 i&n dec. 196 (bia conditions arising in the country of nationality or the country the record did "not clearly show that the birth of petitioner's petitioner, no. 08-71227 was subjected to forced sterilization upon returning to china. united states court of appeals the documents submitted by lin failed to establish a change tion in that case), the petitioner had failed to provide evidence extended to the bia's "case-by-case" formulation of a policy cation under 8 u.s.c. 1158(a)(2)(d) is foreclosed by our return. see id. at 191. the bia expressly referenced a le city's changquing village committee similarly indicated u.s.c. 1101(a)(42). occur. therefore, the 2006 report does not document a change try report); shao v. mukasey, 546 f.3d 138, 159 (2d cir. mother's description was cursory, and did not contain suffi- lin. that letter stated that lin would be subject to china's response from chinese officials in the fujian province "that 251. in doing so, the bia noted that the petitioner failed to interpretation of what it means to be a refugee." counsel spe- eric h. holder jr. eration is appropriate. we have consistently adhered to 2000, removal hearing are consistent with documents dated address evidence in the record that children born abroad were of the violation." 24 i&n dec. at 197-98. applying this bia concluded that "an alien who has established that he or exception to late-filed or successive motions to reopen under 15855lin v. holder that lin now had an objective well-founded fear of persecu- (9th cir. 2004) (declining to address issue raised by party at limits on applying for asylum (set forth in 8 u.s.c. 1158(a)(2)(b), (c)), she has had two children in china may qualify as a refugee ory that china's family planning policies have become more 1158(a)(2)(d). argument, both the 1998 and 2006 country reports reflect does not mention lin's husband's status as a legal permanent 1229a(c)(7)." id. the only avenue available for lin to file ning policies. see id. at 255. the government urges us to cir. 2008) (concluding that there was a lack of "evidence of lin's sister and sister-in-law, the bia mentioned that the gonzales, 463 f.3d 109 (2d cir. 2006), a case relied upon by rather, counsel relied on a 2003 fujian province administra- [8] we agree with the third circuit that the bia's prece- tioner feng gui lin. lin's citation to zheng v. attorney general, 549 f.3d 260, any child of such a couple shall be treated as a chinese framework to the petitioner in that case, the bia found that see no principled basis to depart from this precept when deter- at 190. it further noted that the 2005 country report did not see also chen v. mukasey, 524 f.3d 1028, 1030 (9th cir. "ha[d] not carried his burden of showing that he [had] a well- country conditions where no showing of a change in policy resident, or give any indication how his status would affect the record every single piece of evidence. see id.; see also china's human rights practices; an affidavit and other docu- vored." valeriano v. gonzales, 474 f.3d 669, 672 (9th cir. 15854 lin v. holder two children." id. at 203. by-case" approach deserves chevron deference. at least one 15850 lin v. holder u.s.c. 1101(a)(42)'s definition of refugee, favoring "case- evidence, including petitioner-specific evidence, such as would not have been discovered or presented at the previous b. availability of a successive asylum application (7th cir. 2006) (denying petition predicated on the much-cited cient to establish a material change in country conditions nese descent. in 2007, lin submitted a motion to reopen to the dence may be sufficient. see id. at 268-69. tion control policy . . . " id. the third circuit also credited 2006 country report. nevertheless, the bia explicitly con- standing claim for asylum under 1158(a)(2)(d)] would see id. country of birth." however, the specific circumstances dis- that guo should not influence the outcome of this case. 15848 lin v. holder ond child's birth, and that because lin was neither a citizen which materially affect the applicant's eligibility for asylum . . . " 8 u.s.c. and number limits on motions to reopen [by allowing a free- mitted by lin distinguishes this case from shou yung guo v. family planning laws because she was neither a united states the bia observed that the most recent country reports indi- section 1158(a)(2)(d) provides an exception to the number and time a076-280-320eric h. holder jr., attorney importantly, the directive merely stated that the "violation is sterilization after the second child; a document describing exception. lin asserts that she submitted evidence demon- oral argument but not mentioned in either party's brief). def- violated the family planning laws while overseas; a 2003 material; (3) the evidence must not have been available and objective well-founded fear of persecution, or face a clear the bia did not abuse its discretion when it denied lin's matter of s-y-g-, 24 i&n dec. 247 (bia 2007), should be this argument is *the honorable ralph r. beistline, united states district judge for the march, 2000, the immigration judge (ij) denied lin's applica- to establish changed country conditions in china. to be officially condemned, the bia concluded that petitioner the bia observed that there was no indication in the statement to review the denial of a motion to reopen, we start from the bia based on changed country conditions. lin argued that decisions from other circuit courts on which lin relies are regarding family planning laws, noting that the letter does not individualized analysis when determining whether changed opinion by judge rawlinson porting documents. resident status in the united states and how that status would also distinguishable. xiu zhen lin v. mukasey, 532 f.3d 596, second child would be viewed as a violation of family plan- suaded that the sterilization policies in china have changed to reopen seeking to file successive asylum petitions on the the- 1258 (11th cir. 2009). tion. the 2007 notice in no way reflected a change in the law lin, and that lin did not mention her sister's forced steriliza- was influenced by the bia's failure to address much of the regarding zheng yu he's violation; a chart of the fees june 5, 2009--las vegas, nevada 115. because the bia "paid attention" to the documents sub- changed circumstances") (emphasis in the original); wei v. ii. standard of review tioner, who had two united states citizen children, could mukasey, 546 f.3d 70, 72-73 (1st cir. 2008) (denying petition [10] in sum, the bia's determination that the evidence lin [11] lin submits that independent of her motion to reopen, based on evidence similar to lin's, including the 2006 coun- deference. see xiao kui lin v. mukasey, 553 f.3d 217, 224 to consider "time and again") (citation omitted). sidered much of the evidence lin provided, especially the evi- ted). "we review for abuse of discretion the bia's denial of 15852 lin v. holder applicants from the fujian province yielded no evidence of not counted for the purpose of enforcing china's family plan- its dismay occasioned by the bia's statement that despite the mining whether changed country conditions warrant reopen- we also note that in contrast to the cases relied on by lin, mukasey, 545 f.3d 1248, 1254-55 (10th cir. 2008) (same). ment of coercive population control measures against her cient detail to warrant a conclusion that the sterilizations met this significant distinction between the two cases persuades us of the united states nor a permanent resident, she would be glean from these three cases a definition of "refugee" that rather, according to the third circuit, the 2006 report docu- this is particularly the case for evidence that the bia is asked would give rise to a well-founded fear of persecution because three precedential cases that were likewise found inadequate 2007), matter of j-w-s-, 24 i&n dec. 185 (bia 2007), and change in country conditions. see id. at 1133 (concluding that pelled to credit the directive as conclusive evidence. more children born abroad, if not registered as permanent residents by-case review" in lieu of a "categorical application of the qualify for asylum. specifically, the issue was whether peti- cussed were that the chinese government employee and his penalties" would include sterilization, forced or otherwise. (9th cir. 2007) (citation omitted). "the decision of the bia for publication argued and submitted try conditions was not "arbitrary, irrational, or contrary to cifically expressed that chevron deference should be family planning laws; a 2003 administrative decision from the lin. in guo, the second circuit granted the petition for the bia's conclusion in matter of j-w-s- that the "chinese reopen in that case, apparently never "really paid any atten- changed. more importantly, the bia recognized that the letter certainly will be subjected to sterilization procedures . . . ' " tion in her own affidavit. policy implementation. yet, as the bia noted, the letter to lin fujian province family planning administration department the united states has a bearing on china's family planning contrary to law." id. at 1131 (citation and internal quotation would, in turn, qualify her for asylum as a refugee. see 8 administration regarding zheng yu he's violation of the by lin, several circuits have denied relief. see, e.g., zheng v. tioner had established that he would be subjected to forced at the original hearing, would establish prima facie eligibility tioners had submitted with their applications to reopen . . . " feng gui lin (lin), the petitioner in this case, specifically zheng's affidavit and letter to him from changle city. see id. distinguishing zheng. see liu v. attorney general of the 15847lin v. holder the board of immigration appeals (bia) denied lin's outside of china." id. at 149-50. xing xiong dong, a legal permanent resident (lpr) of chi- monetary incentives for those who undergo sterilization dated to which removal has been ordered." id. 1229a(c)(7)(c)(ii); board of immigration appeals in reaching this determination. therefore you will definitely be targeted to [sic] steriliza- that forced abortion and sterilization are generally prohibited, the record lacked persuasive evidence that the birth would contain any instances of returnees from the united states before: ronald m. gould and johnnie b. rawlinson, specifically that forcible sterilizations had been mandated by gary j. yerman, new york, new york, on behalf of peti- the people's republic of china who had three children, and see id. rawlinson, circuit judge: [4] in making its ruling, the bia thoroughly considered and strating that due to changed country conditions in china she ment, we elect not to resolve the chevron issue in this opin- lpr status and whose children are united states citizens-- [1] although we have jurisdiction under 8 u.s.c. 1252(a) ever, "[t]here is no time limit on the filing of a motion to tion requirement after the birth of a second child; a 2007 and that current local family planning enforcement efforts bia need not parse every piece of evidence, and implicitly general, opinion other means that would amount to persecution.' " id. at 597. would support the bia's denial of lin's motion to reopen. in the family planning laws or enforcement of those laws was assessed against chinese parents based on different violations respondent. there was no indication whatsoever that the "sanctions and stances that is not sufficient to establish changed circum- `all citizens with two children will be designated as a target spouse had a second child on a "family visit" to the united report indicated that state department interviews with visa cile) (citation and alteration omitted); see also fregozo v. defining domicile was reasonable interpretation of statute at changle who was subjected to forced sterilization upon founded fear of persecution in china on account of fathering timely petition for review. iii. discussion but in the fujian province such practices have been known to acted within its discretion when it denied lin's motion to the degree that relief is warranted. we deny lin's petition. marks omitted). failure to meet any one of these burdens 1229a(c)(7)(c)(i); see also 8 c.f.r. 1003.2(c)(2). how- ning policies in fujian province," and that even if it would, or any intent to enforce this provision more strictly. thus, it was evident). as government counsel pointed out during oral after her removal hearing. for example, the series of ques- " `that the policy is implemented through physical force or of the family planning laws; a july, 1999, question and submitted did not establish a material change in china's coun- notice from changquing village in chang le city requiring 15841 since [lin's] last hearing such that [she] would now have an addressed the evidence presented by lin. in discussing the statement from lin's mother describing forced sterilization of a notice to appear in april, 1999. lin filed an application for the date of entry of a final order of removal. see 8 u.s.c. ted by lin were "the same or similar" to the documents in the because the fujian province enforces the family planning pol- tion or faced a clear probability of persecution. lin filed a noted that although the 2006 country report documented treated as a chinese citizen subject to the family planning for chinese citizens who had more than one child abroad. i. background ments relating to an individual named chen, jin fu from at 268-69. in doing so, however, the court recognized that the of china . . . are not counted against the number of children will be forcibly sterilized if returned to china. we are unper- 1 holder, 576 f.3d 1030, 1034-35 (9th cir. 2009) (recognizing 597 (7th cir. 2008), involved a village committee letter spe- government does not have a national policy requiring forced tion to the documents" submitted by the petitioners. id. at ditions had changed in [china]; (2) the evidence had to be is binding agency precedent on-point (either in the form of a a motion to reopen." he v. gonzales, 501 f.3d 1128, 1130-31 unpersuaded by lin's reliance on li v. united states attorney that chevron deference is applicable to the bia's construction for the relief sought." toufighi v. mukasey, 538 f.3d 988, 996 children must undergo sterilization procedures after their sec- law." id. at 1131. accordingly, we conclude that the bia [5] the bia also evaluated the letter from the village an alien must file a motion to reopen within ninety days of implementation and enforcement of the family planning pol- lin also submitted an affidavit from her mother attesting to standing successive asylum application.1 15851lin v. holder that the births violated family planning policies in that alien's being forced to undergo sterilization procedures on their here, the government appears to argue that the bia's "case- tions for relief and ordered her removed to china. the bia should be left undisturbed unless it is arbitrary, irrational, or foreclosed by our prior precedent. see chen, 524 f.3d at was not briefed by the parties or fleshed out during oral argu- 2006 country report established changed country conditions. expecting her third child to be born in may, 2008. planning purposes when the parents return to china. see id.

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