Immigration — No Relief for ‘One-Child’ Policy Claimant

Lin v. Holder (Lawyers Weekly No. 001-194-14, 28 pp.) (Duncan, J.) No. 13-1016, Nov. 14, 2014; On Petition for Review; 4^th Cir.

Holding: The 4^th Circuit says the Board of Immigration Appeals did not abuse its discretion in refusing to reopen removal proceedings for a Chinese citizen married to a U.S. citizen, who argues he will be persecuted under China’s one-child policy if removed to China because he has three children born in the U.S.

Petitioner Wanrong Lin presses two arguments on appeal. First, he argues his petition should be granted in light of our decision in Chen v. Holder, 742 F.3d 171 (4^th Cir. 2014), in which we held that it was improper for the BIA to rely on the May 2007 State Department Profile of Asylum Claims and Country Conditions on China without accounting for strong contradictory evidence that petitioners would be forcibly sterilized if returned to China. On the merits, Lin argues that the BIA abused its discretion by failing to properly consider what Lin characterizes as new, previously unavailable, and material evidence establishing changed country conditions in China related to the enforcement of the one-child policy.

We conclude Chen is materially distinguishable from the petition here. The BIA’s decision here to rely on the 2007 Profile was considered and reasoned. The BIA catalogued the contents of Lin’s evidentiary submissions in detail and discussed its reasons for continuing to find the 2007 Profile valid.

The procedural posture of Lin’s petition also distinguishes it from Chen, as Lin seeks review of the denial of a second motion to reopen. The BIA reviewed Lin’s submissions, both old and new, evaluated the evidence of record, and explained why the evidence did not meet Lin’s heavy burden. Such diligence falls far short of arbitrariness.

The BIA did not abuse its discretion for four reasons: Many of Lin’s documents were unauthenticated. Much of his evidence was neither new nor previously unavailable. To the extent Lin’s evidence was new, it was not relevant to his circumstances or his home province in China. Finally, Lin’s evidence was not sufficient to discredit the findings in the 2007 Profile.

Lin submitted the affidavit of Dr. Flora Sapio as “countervailing” evidence of country conditions and flaws in the 2007 Profile. The BIA rejected the Sapio view because it speculated about the State Department’s motivations in drafting the 2007 Profile and was not based upon personal knowledge. As has every other circuit to consider the Sapio Affidavit, we too find the BIA did not err in finding it incredible.

Petition denied.