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Lin v. Mukasey: IMMIGRATION - changed country conditions not shown; no abuse not reopening removal

United States Court of Appeals
No. 07-2627
Li Yun Lin, *
Petitioner, *
v. * Petition for Review of an Order
* of the Board of Immigration Appeals.
Michael B. Mukasey, Attorney *
General of the United States, * [PUBLISHED]
Respondent. *
Submitted: May 16, 2008
Filed: May 23, 2008
Before LOKEN, Chief Judge, BEAM and BYE, Circuit Judges.
Li Yun Lin, a native and citizen of the Peoples Republic of China, entered the
United States with fraudulent documents, conceded removability, and applied for
asylum, withholding of removal, and relief under the Convention Against Torture,
claiming past and a well-founded fear of future persecution under Chinas one-child
policy. At the asylum hearing, Lin testified that Fujian Province family planning
officials forced her to have an abortion when four months pregnant, and she
subsequently fled her home rather than submitting to insertion of a contraceptive intrauterine
device. Lin testified that she would be forcibly sterilized if removed to China.
The immigration judge (IJ) denied all claims for relief in May 2003, finding Lin
completely not credible. Lin filed a timely administrative appeal. In November
2004, the Board of Immigration Appeals (BIA) affirmed the IJ's adverse credibility
finding and the denial of all relief. Lin did not petition for judicial review.
In January 2007, Lin filed with the BIA an untimely motion to reopen the
removal proceedings based on changed country conditions, relying on the evidence
referenced in recent Second Circuit decisions and the birth of two children in the
United States in May 2002 and May 2004. The BIA denied the motion to reopen. Lin
petitions for judicial review of that order. Concluding that this appeal is governed by
our recent decision in Zhong Qin Zheng v. Mukasey, --- F.3d ---, 2008 WL 1867079
(8th Cir. 2008), we deny the petition for review.
Lins motion to reopen was untimely. See 8 U.S.C. 1229a(c)(7)(C)(I); 8
C.F.R. 1003.2(c)(2). Therefore, the motion was time-barred unless she made a
sufficient showing of changed country conditions in China with evidence that is
material and was not available and could not have been discovered or presented at the
previous hearing. 8 C.F.R. 1003.2(c)(3)(ii); see 8 U.S.C. 1229a(c)(7)(C)(ii). The
birth of children in the United States is a change of personal circumstance, not a
change in country conditions. See Wen Ying Zheng v. Mukasey, 509 F.3d 869, 871
(8th Cir. 2007). Because motions to reopen are disfavored, particularly untimely
motions to reopen, we review the BIAs decision regarding changed country
conditions under a highly deferential abuse of discretion standard. Zhong Qin Zheng,
2008 WL 1867079 at *1.
Lin argues that the BIA abused its discretion by refusing to reopen and remand
to the IJ for consideration of newly discovered evidence demonstrating there is a
policy in Fujian Province of sterilizing all persons with two or more children,
including those with foreign born children. The argument is based upon documents
that caused the Second Circuit to remand for further consideration of the changed-
country-circumstances issue in Shou Yung Gou, 463 F.3d 109, 114-15 (2d Cir. 2006);
cf. Tian Ming Lin v. U.S. Dep't of Justice, 473 F.3d 48 (2d Cir. 2007), which also
remanded on the basis of the Shou Yung Guo documents, but not on the issue of
changed country conditions. In a lengthy decision issued twelve days before its
decision in this case, the BIA considered the Shou Yung Guo documents in the
context of a direct appeal, rather than an untimely motion to reopen, and concluded
they did not establish that Fujian Province has a policy of abortions and sterilizations
implemented through physical force or other means that would amount to
persecution. Matter of J-W-S-, 24 I&N Dec. 185, 192 (BIA 2007); see also Matter
of C-C-, 23 I&N Dec. 899 (BIA 2006). In the subsequent decision in this case, the
BIA not surprisingly concluded that Lin had not demonstrated changed country
conditions, citing its decision in Matter of J-W-S and noting that Lin did not submit
the Shou Yung Guo documents with her motion to reopen. A few months later, in
another lengthy opinion, the BIA denied the untimely motion to reopen in Shou Yung
Guo on remand from the Second Circuit, concluding that the evidence relating to
Fujian Province does not indicate that conditions in China have changed materially
since the last hearing such that the applicant would have an objective well-founded
fear of persecution upon return to China. Matter of S-Y-G-, 24 I&N Dec. 247, 258
(BIA 2007).
In Zhong Qin Zheng, 2008 WL 1867079 at *3-4, we cited the BIAs decisions
in Matter of J-W-S-, Matter of C-C-, and Matter of S-Y-G- in affirming the BIA's
denial of an untimely motion to reopen based upon an alleged increased use of forced
abortions and sterilizations in Fujian Province. Lin's appeal is even weaker than the
petitioners in Zhong Qin Zheng because Lin did not place any of the Shou Yung Guo
documents in the administrative record, see 8 U.S.C. 1252(b)(4)(A), and because her
supporting affidavits from family members in China alleged forced sterilizations in
1980 and 2003, evidence that, even if credible and material, clearly could have been
presented at the asylum hearing or to the BIA on direct appeal.
The BIA abuses its discretion if its decision is without rational explanation,
departs from established policies, invidiously discriminates against a particular race
or group, or where the agency fails to consider all factors presented by the alien or
distorts important aspects of the claim. Isse v. Mukasey, --- F.3d ---, 2008 WL
1969736, *1 (8th Cir. 2008) (quotations omitted). In her brief, Lin asserts that the
BIA turned a blind eye to the evidence she offered and denied her motion in
conclusory and boilerplate terms, going so far as to suggest agency bad faith and a
violation of due process. To the contrary, the agencys decisions since the Second
Circuits remand in Shou Yung Guo demonstrate careful consideration of these issues
and a rational explanation of its decisions. It is Lin who has submitted a boilerplate,
untimely motion to reopen and a carelessly argued petition for judicial review, no
doubt for the reasons of delay that have caused these motions to be viewed with
disfavor, by Congress as well as by the courts.
We deny the petition for review.


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