UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1853

XUE YAN LIN,

Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Argued:

January 29, 2009

Decided:

May 6, 2009

Before MICHAEL, KING, and AGEE, Circuit Judges.

Petition for review denied by unpublished per curiam opinion.

ARGUED: Gary Jay Yerman, YERMAN & ASSOCIATES, L.L.C., New York,
New York, for Petitioner.
Jem Colleen Sponzo, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF: Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Civil Division, M. Jocelyn Lopez Wright, Assistant Director,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Petitioner

Xue

Yan

Lin,

native

and

citizen

of

the

Peoples Republic of China, petitions for review of the August

14,

2007

decision

of

the

Board

of

Immigration

Appeals

(the

BIA), denying his motion to reopen immigration proceedings.

Lin maintains that changed country conditions in China, combined
with

the

birth

of

his

two

children

in

the

United

States,

justified a reopening after approximately nine years of his

application for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture (the CAT).
As explained below, we deny the petition for review.

I.
A.
After illegally entering the United States on October 27,
1991, Lin filed an application for asylum and withholding of
deportation, 1 asserting that he had experienced past persecution
and

had

predicated

well-founded
on

his

fear

of

resistance

future
to

the

persecution
countrys

in

China,

communist

leadership and his participation in the 1989 demonstrations at

Tiananmen Square.

Lin was issued a notice to appear on February

After Lin filed his 1992 application for withholding of

deportation, applicable statutory changes replaced the term
deportation with a procedure designated as removal.

23,

1994,

alleging

that

he

was

deportable

United States without inspection.

for

entering

the

An immigration judge (the

IJ), in a decision issued on February 21, 1997, denied Lins

application

for

Decision). 2

relief

and

found

him

deportable

(the

IJ

The IJ Decision granted Lins request to depart

voluntarily from the United States, however, and ordered that he

do so by May 21, 1997.
Lin appealed the IJ Decision to the BIA, which summarily
dismissed his appeal on February 17, 1998.
judicial

review

of

the

BIAs

rejection

Lin failed to seek

of

his

instead remained unlawfully in the United States.

25,

2003,

Lin

married

lawful

permanent

appeal,

and

On February

resident

of

this

country, and the couple now has two children (both United States
citizens):

son

born

in

January

1997

(prior

to

the

IJs

Decision), and a daughter born in August 2005.

B.
On March 16, 2007, more than nine years after the BIAs
February 1998 dismissal of his appeal of the IJ Decision, Lin
submitted

proceedings,

motion
seeking

to
to

the

BIA

file

to

reopen

successive

his

deportation

application

for

asylum, withholding of removal, and protection under the CAT

2

The IJ Decision is found at J.A. 7-15. (Citations herein

to J.A. ___ refer to the contents of the Joint Appendix filed
by the parties in this appeal.)

(the

Motion

to

Reopen).

Lin

asserted

therein

that

his

immigration proceedings should be reopened by the BIA because

previously unavailable evidence established a change in country
conditions in China particularly the increased enforcement of
family

planning

asserted

he

has

policies
a

in

the

well-founded

Fujian
fear

of

Province.

Lin

also

persecution

in

China

because of the births of his two children, in violation of that

countrys family planning policies, and that, if he returns to
China, he will be subjected to involuntary sterilization.
In support of his Motion to Reopen, Lin submitted to the
BIA his affidavit; an affidavit from his father, who lives in
Fujian

Province;

an

amended

application

for

asylum

and

for

withholding of removal, and supporting affidavit; Lins and his

wifes

birth

certificates;

their

marriage

certificate;

his

wifes green card; birth certificates of their two children; and

family

photographs.

In

addition

to

the

foregoing

personal

evidence, Lin submitted other materials in support of the Motion

to Reopen. 3

The supporting materials filed with the Motion to Reopen,

in addition to personal evidence spelled out above, included a
Policy Statement from Chinas Administrative Office of the
National Population and Family Planning Committee; a 1999
question and answer sheet issued by the Changle City Family
Planning Office, addressing Chinas family planning policy;
demographer John Aird's September 2002 testimony before the
Congressional-Executive Commission on China; the May 2003
Consular Information Sheet on China; the 2004, 2005, and 2006
(Continued)
4

By its decision of August 14, 2007, the BIA denied the

Motion to Reopen (the BIA Decision). 4

In so ruling, the BIA

decided that the Motion to Reopen was untimely because it was

filed

more

dismissal

than

of

ninety

Lins

days

appeal

of

after
the

the

IJ

BIAs

February

Decision,

and

that

1998
the

motion did not otherwise fall under the statutory exception for
changed country conditions.

The BIA Decision also concluded

that Lin had failed to make a prima facie showing of a wellfounded fear of persecution if he returned to China, because he
has not shown a reasonable likelihood that he would be subject
to

more

than

Decision 2.

fines

and

loss

of

any

government

job.

BIA

Lin thereafter filed his petition for review with

this Court, and we possess jurisdiction pursuant to 8 U.S.C.

1252.

Department of State Country Reports on China; a 1997 policy

letter issued by Chinas Department of Public Security; the 2005
and
2006
annual
reports
of
the
Congressional-Executive
Commission on China; the December 2004 testimony of Harry Wu,
Executive Director of the Laogai Research Foundation, before the
House of Representatives Committee on International Relations;
and two newspaper articles reporting human rights violations
arising from enforcement of Chinas family planning policy.
4

The BIA Decision is found at J.A. 162-63.

II.
We review for abuse of discretion the BIAs denial of a
motion to reopen, but assess de novo the legal rulings made by
the BIA in connection therewith.

INS v. Doherty, 502 U.S. 314,

323-24 (1992); Barry v. Gonzales, 445 F.3d 741, 744 (4th Cir.
2006).

We may only reverse the BIAs denial of a motion to

reopen if its ruling was arbitrary, capricious, or contrary to

law.

Afanwi v. Mukasey, 526 F.3d 788, 794 (4th Cir. 2008)

(citing Doherty, 502 U.S. at 323-24).

A BIA decision on such a

motion is reviewed with extreme deference, given that motions

to reopen are disfavored . . . [because] every delay works to
the

advantage

remain

in

of

the

the

deportable

United

States.

alien

who

Barry,

wishes

445

F.3d

merely
at

to

744-45

(quoting Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999)).

III.
A.
In this proceeding, Lin seeks review of the BIA Decision
denying

his

withholding

Motion
of

to

removal,

Reopen
and

his

application

protection

under

the

for

asylum,

CAT. 5

The

Lin does not seek review of the BIAs 1998 dismissal of

his appeal of the IJ Decision. Indeed, we lack jurisdiction to
assess the propriety of that dismissal because Lin failed to
timely petition for review.
See 8 U.S.C. 1252(b)(1)
(providing that petition for review be filed within thirty
(Continued)
6

provisions of 240(c)(7) of the Immigration and Nationality Act

(the INA), 8 U.S.C. 1229a(c)(7), apply to an alien who has
been ordered removed from this country and thereafter seeks to
reopen his removal proceedings.

Generally, such an alien may

file a single motion to reopen and that motion must be filed

within ninety days of the entry of the final order of removal.
See 8 U.S.C. 1229a(c)(7)(A), (C)(i); 8 C.F.R. 1003.2(c)(2).
These statutory time and numerical limitations are inapplicable,
however, and no time limit is imposed on a motion to reopen
based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered.
8

U.S.C.

1229a(c)(7)(C)(ii);

1003.2(c)(3)(ii). 6

To

proceed

see
under

also
the

C.F.R.

changed-country

conditions exception to the statutory time limit, an applicant

days); Stone v. INS, 514 U.S. 386, 405 (1995) (explaining such
thirty-day period is jurisdictional in nature and must be
construed with strict fidelity).
6

The changed-country conditions exception provided for in 8

U.S.C. 1229a(c)(7)(C)(ii), and which, if applicable, results
in no time limit being applicable to a motion to reopen, states:
There is no time limit on the filing of a motion to
reopen if the basis of the motion is to apply for
[asylum] and is based on changed country conditions
arising in the country of nationality or the country
to which removal has been ordered, if [the supporting]
evidence is material and was not available and would
not have been discovered or presented at the previous
proceeding.

must present evidence of changed country conditions that is

material

and

was

not

available

and

would

not

discovered or presented at the previous proceeding.

1229a(c)(7)(C)(ii);

see

also

C.F.R.

have

been

8 U.S.C.

1003.2(c)(3)(ii).

Furthermore, [a] motion to reopen proceedings shall state the

new facts that will be proven at a hearing to be held if the
motion is granted and shall be supported by affidavits or other
evidentiary material.
identifying

the

8 C.F.R. 1003.2(c)(1).

previously

unavailable

evidence,

In addition to
an

applicant

seeking to utilize the changed-country conditions exception must

demonstrate his prima facie eligibility for asylum, that is, he
must demonstrate that the new evidence would likely alter the
result of his case.

See INS v. Abudu, 485 U.S. 94, 104-05

(1998); Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998).
In this situation, we are obliged to reject Lins petition
for review if the BIA Decision denied his Motion to Reopen on
any

valid

ground.

In

that

respect,

the

Supreme

Court

has

identified at least three grounds on which the BIA is entitled

to deny such a motion to reopen:

The applicants failure to introduce previously

unavailable, material evidence;

Failure of the applicant to establish a prima

facie case for the underlying substantive relief
sought; and

A determination by the BIA that even if these two

requirements were satisfied, the movant would
8

not be entitled
relief.

See

Abudu,

independent

485

U.S.

grounds

on

at

to

the

104-05

which

discretionary

(There

the

BIA

are

may

at

deny

grant

of

least
a

three

motion

to

reopen.); see also INS v. Doherty, 502 U.S. 314, 323 (1992)
(same); Zhang v. Mukasey, 543 F.3d 851, 854 (6th Cir. 2008)
(same); Onyeme, 146 F.3d at 234 (same).
B.
As heretofore explained, the Motion to Reopen, filed by Lin
on March 16, 2007, was untimely under the applicable statute
unless it falls under the changed-country conditions exception,
where no time limit exists.

Lin has acknowledged as much, but

maintains that the ninety-day time limit was excused because the
changed country conditions in China authorized the relief he
sought.

The BIA Decision denied the Motion to Reopen by relying

on the first two of the three bases identified by the Supreme

Court first, that Lin had failed to establish a change in
country

conditions

because

he

had

only

alleged

change

in

personal conditions, and did not otherwise establish any changed

country conditions in China; and, second, that even if a change
in country conditions was shown, he had nonetheless failed to
make

prima

facie

showing

of

persecution.

well-founded

fear

of

1.
On the question of whether the country conditions in China
had

changed

since

the

earlier

proceedings,

the

BIA

Decision

first found that to the extent the motion is based on the

changes in personal circumstances the birth of Lins children
in

the

United

States

such

personal

circumstances

insufficient to support a motion to reopen.

are

BIA Decision 2.

Second, the BIA Decision ruled that Lin had not persuasively
shown that the country conditions in China had changed, because
his

evidence

policies

established

rather

Predicated

thereon,

persuasively
exception

than

to

shown
the

only

material

the

that

BIA
his

continued
change

concluded

Motion

otherwise

to

implementation

in

that

Reopen

applicable

policies.
Lin
fell

ninety-day

of
Id.

had

not

within

an

statutory

deadline.
On the issue of changed personal circumstances, the BIA and
the Attorney General have mischaracterized the Motion to Reopen
as relying on such circumstances.

In fact, the Motion to Reopen

specified to the contrary specifically seeking to reopen in

light of a change of conditions in China.

J.A. 29.

Certainly,

the birth of Lins children is a significant factor with respect

to his Motion to Reopen, because the possibility that he might
suffer

persecution

arises

therefrom.

And,

as

we

recently

recognized, changed personal circumstances arising in the United

10

States such as the birth of children do not alone authorize

a successive asylum application, and do not otherwise constitute
the changed country conditions justifying an exception to the
ninety-day statutory deadline.

See Zheng v. Holder, No. 08-

1255, ___ F.3d ___ (4th Cir. Apr. 16, 2009).

Notwithstanding

these observations, however, the BIA has not ruled that changed
personal circumstances when a change in country conditions
otherwise

exists

reopen.

Rather,

accompanied

by

precludes
changes

sufficient

it
in

from

granting

personal

evidence

motion

circumstances,

of

changed

to
if

country

conditions, may support an otherwise untimely motion to reopen.

See Chen v. Mukasey, 255 F. Appx 573, 577-78 (2d Cir. 2007)
(unpublished) (observing that whether a petitioner with both
changed personal circumstances and changed country conditions .
. . can rely on those changed country conditions to reopen his
case, despite an untimely motion, when the underlying change in
personal circumstances postdated his order to depart, is an
open question).
On the issue of changed country conditions, Lins petition
for review finds support in a recent decision of the Eleventh
Circuit, Li v. U.S. Attorney General, 488 F.3d 1371 (11th Cir.
2007).

In

Li,

the

Eleventh

Circuit

considered

evidence

strikingly similar to that presented in this proceeding, and

concluded that the evidence was material and clearly satisfied
11

the

criteria

for

motion

to

reopen.

488

F.3d

at

1375.

Nevertheless, whether Lins evidence was sufficient to establish

a change in country conditions is a close question.
Shao

v.

Mukasey,

distinction

546

between

F.3d

138,

changes

169

in

(2d

the

Cir.

Compare

2008)

substance

(drawing

and

in

the

enforcement of Chinas population control policy), with Li, 488

F.3d

1371.

Notably,

the

BIA

does

not

contend

that

Lins

evidence was previously available; and such evidence appears to

postdate his initial IJ hearing.
Lins

evidence

established

If we were to conclude that

change

in

country

conditions,

however, his petition for review would yet be unsuccessful if

the BIA was correct in ruling that Lin had failed to make a
prima

facie

showing

for

the

relief

sought.

Because,

as

explained below, Lin did not make a prima facie showing, we need
not decide whether the Motion to Reopen sufficiently established
a change in country conditions.
2.
As

explained

above,

Lin

seeks

asylum,

withholding

of

removal, and relief under the CAT, asserting that, if he is

returned

to

China,

he

will

face

persecution

because

he

has

violated Chinas family planning policy by having two children

in the United States.
must

establish

persecution

in

In order to be eligible for asylum, Lin

refugee
China,

or

status
a

based

well-founded
12

on

either

fear

of

his

past

persecution

there,

on

protected

ground.

See

C.F.R.

1208.13(b).

Because Lin does not assert, in support of his Motion to Reopen,

that he suffered past persecution in China, 7 he must in order
to be accorded relief establish a well-founded fear of future
persecution on one of the statutorily-enumerated grounds.
Lin-Jian

v.

Gonzales,

489

F.3d

182,

187

(4th

Cir.

See

2007);

C.F.R. 208.13(b).
A sterilization is deemed to be persecution, and a person
who has a well founded fear that he or she will be forced to
undergo such a procedure . . . shall be deemed to have a well
founded fear of persecution on account of political opinion.
U.S.C.
founded

1101(a)(42)(B).
fear

of

As

persecution

we

have

statutory

subjective and objective components.

F.3d

182,

187

(4th

Cir.

2004).

explained,
mandate

the

well-

contains

both

Ngarurih v. Ashcroft, 371

To

satisfy

its

subjective

In his initial proceedings before the IJ, Lin claimed that

he suffered past persecution in China as a result of his
political resistance and participation in the Tiananmen Square
demonstration. The IJ, however, found Lins testimony regarding
past persecution to be replete with inconsistencies and
lacking corroboration. IJ Decision 2. Because Lin did not seek
judicial review of this adverse credibility finding, it is not
now contestable.
This finding cannot, however, be used to
discredit Lins testimony on all issues.
See Lin-Jian v.
Gonzales, 489 F.3d 182, 191 (4th Cir. 2007) (explaining that
despite adverse credibility finding regarding petitioners
subjective fear of future persecution, IJ made no credibility
findings regarding petitioners past persecution, and therefore
IJ was essentially silent on petitioners credibility on that
issue).

13

component,

an

applicant

must

present

candid,

credible,

and

sincere testimony demonstrating a genuine fear of persecution.

Id.

In

order

to

prevail

on

the

objective

component,

the

applicant is obliged to offer specific, concrete facts that

would lead a reasonable person in like circumstances to fear
Id. at 187-88.

persecution.
In

support

of

his

Motion

to

personal and background evidence.

Reopen,

Lin

presented

both

Specifically, Lins affidavit

reported that friends and family in China had advised that the
government

has

increased

sterilization.

J.A. 50.

the

use

of

forced

abortions

and

Lins father, who lives in Fujian

Province, reported that, in the prior year, family planning laws

had been more strictly carried out in [Changle City, Fujian
Province].

Id. at 79.

Lins father gave two examples in which

couples having more than two children were forcibly sterilized,

concluding that [e]xamples like these are very common in my
hometown.

Id.

Lins father also reported that the village

committee in Changle City was aware that Lin had two children
and that [i]f he returned to China, he had to undergo necessary
Family Planning procedures, such as sterilizations, unless he
became

U.S.

citizen.

Id.

background

evidence

with

Department

of

Country

State

Lin

his

Motion

Reports

14

also

on

submitted

to

Reopen,

China,

in

objective
such

as

order

to

bolster

his

anecdotal

evidence

and

establish

an

increase

in

Chinas enforcement measures.

The BIA Decision rejected Lins evidence, ruling that Lin
had failed to make a prima facie case of a well-founded fear of
persecution.

The BIA recognized that [Lin] reports he is known

to have two children, but nevertheless concluded that he has

not shown a reasonable likelihood that he would be subject to
more than fines and loss of any government job.
2.

BIA Decision

The BIA then ruled that the fact that local officials in

some areas of China have insisted upon sterilization does not

establish that [Lin] has a reasonable fear of being forcibly
sterilized, especially if his wife and children remain here.
Id.
Put simply, the BIA did not err in concluding that Lin had
failed

to

carry

his

persecution question.

burden

on

the

well-founded

fear

of

The BIA did not reject Lins claim of

subjective fear of persecution, ruling only that Lin had failed

to satisfy the objective component of the statutory mandate.

In

so ruling, the BIA relied on its own precedential decisions,

where it had already evaluated much of the background evidence
submitted and relied upon by Lin.

See BIA Decision 2 (citing

Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); In re J-W-S-,

24 I. & N. Dec. 195 (BIA 2007); In re C-C-, 23 I. & N. Dec. 899
(BIA 2006)); see also Shao v. Mukasey, 546 F.3d 138 (2d Cir.
15

2008)
cases).
efforts

(denying

petitioners

Importantly,
in

Fujian

the

petitions

BIA

Province

have

subject to wide variation.

193-94.

has

for

observed
been

review
that

lax,

in

above

enforcement

uneven,

and

In re J-W-S-, 24 I. & N. Dec. at

Moreover, in ruling on Lins claim, the BIA relied on

precedent recognizing a lack of national policy with respect to

foreign-born children, and explaining that violators of that
policy are, at worst, subject to fines.

BIA Decision 2 (citing

Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir. 2005)).

The BIA, having previously considered much of the evidence
submitted and relied on by Lin, was entitled to address such
evidence in a summary fashion.

See Wang v. BIA, 437 F.3d 270,

275 (2d Cir. 2006) (observing BIA must not expressly parse or
refute

each

individual

argument

or

piece

of

evidence,

particularly evidence which the BIA is asked to consider time

and again).

Indeed, the BIA was entitled to find that the

personal evidence offered by Lin fails to satisfy his burden of

establishing the objective element of the fear of persecution
issue.

Lins

and

his

fathers

affidavits

provide

evidence only, and they are otherwise uncorroborated.

v.

Mukasey,

546

F.3d

70,

72

(1st

Cir.

2008)

anecdotal
See Zheng
(Absent

substantiation, self serving affidavits from petitioner and her

immediate family are of limited evidentiary value.).

In sum,

after carefully assessing this record, we cannot conclude that

16

the BIAs determination that Lin failed to establish a wellfounded fear of persecution was either arbitrary, capricious, or
contrary

to

law.

As

result,

the

BIA

did

not

abuse

its

petition

for

discretion in denying Lins Motion to Reopen. 8

IV.
Pursuant

to

the

foregoing,

we

deny

Lins

review of the BIAs denial of his Motion to Reopen.

PETITION FOR REVIEW DENIED

The burden of proof for withholding of removal is greater

than for asylum. Thus if an applicant is ineligible for asylum,
he is necessarily ineligible for withholding of removal.
See
Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). Because
Lin has failed to make a prima facie showing that he is eligible
for asylum, he is also unable to establish that he is eligible
for withholding of removal.
Similarly, Lins claim for CAT
relief lacks merit because this claim also relies on the
probability of forcible sterilization.
To be eligible for
relief under the CAT, Lin must demonstrate that it is more
likely than not that he . . . would be tortured if removed to
the proposed country of removal. 8 C.F.R. 208.16(c)(2). On
this record, we cannot conclude that the BIA erred in concluding
that Lin did not meet his burden of proof on the CAT claim.
17