Feng Gui Lin v. Holder

• Decision Date: 03 December 2009
• Docket Number: No. 08-71227.,08-71227.
• Citation: 588 F.3d 981
• Parties: FENG GUI LIN, aka Fenggui Lin, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

588 F.3d 981

FENG GUI LIN, aka Fenggui Lin, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08-71227.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2009.

Filed December 3, 2009.

Gary J. Yerman, New York, NY, on behalf of petitioner Feng Gui Lin.

Michael C. Heyse, Washington, DC, on behalf of respondent Eric H. Holder Jr.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A076-280-320.

Before: RONALD M. GOULD and JOHNNIE B. RAWLINSON, Circuit Judges, and RALPH R. BEISTLINE,^* District Judge.

RAWLINSON, Circuit Judge:

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.

I. BACKGROUND

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 Board of Immigration Appeals 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 . . ."

Other documents in evidence were: an issuance addressing Zheng Yu He, a specific Chinese individual, who ostensibly violated the family planning laws while overseas; a 2003 administrative opinion from Changle City Family-Planning Administration regarding Zheng Yu He's violation of the family planning laws; a 2003 administrative decision from the Fujian Province family planning administration department regarding Zheng Yu He's violation; a chart of the fees assessed against Chinese parents based on different violations of the family planning laws; a July, 1999, question and answer session from Chang Le City referencing the sterilization requirement after the birth of a second child; a 2007 notice from Changquing village in Chang Le City requiring sterilization after the second child; a document describing monetary incentives for those who undergo sterilization dated 2007; the 2006 United States State Department Report on China's Human Rights Practices; an affidavit and other documents relating to an individual named Chen, Jin Fu from Changle who was subjected to forced sterilization upon returning from abroad; various news articles; and other supporting documents.

The (BIA) denied Lin's motion to reopen, concluding that the submitted evidence did not establish a material change in country conditions, such that Lin now had an objective well-founded fear of persecution or faced a clear probability of persecution. Lin filed a timely petition for review.

II. STANDARD OF REVIEW

Although we have jurisdiction under 8 U.S.C. § 1252(a) to review the denial of a motion to reopen, we start from the premise that "[m]otions to reopen are discretionary and disfavored." Valeriano v. Gonzales, 474 F.3d 669, 672(9th Cir. 2007) (footnote reference and internal quotation marks omitted). "We review for abuse of discretion the BIA's denial of a motion to reopen." He v. Gonzales, 501 F.3d 1128, 1130-31 (9th Cir.2007) (citation omitted). "The decision of the BIA should be left undisturbed unless it is arbitrary, irrational, or contrary to law." Id. at 1131(citation and internal quotation marks omitted).

At oral argument, government counsel contended that the BIA's decisions in Matter of J-H-S-, 24 I & N Dec. 196 (BIA 2007), Matter of J-W-S-, 24 I & N Dec. 185 (BIA 2007), and Matter of S-Y-G-, 24 I & N Dec. 247 (BIA 2007), should be afforded deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) as "an interpretation of what it means to be a refugee." Counsel specifically expressed that Chevron deference should be extended to the BIA's "case-by-case" formulation of a policy position on changed country conditions vis à vis enforcement of China's family planning policies. In Matter of J-H-S-, the BIA concluded that "an alien who has established that he or she has had two children in China may qualify as a refugee if the evidence presented establishes, on a case-by-case basis, that the births violated family planning policies in that alien's local province, municipality, or other locally-defined area, and that current local family planning enforcement efforts would give rise to a well-founded fear of persecution because of the violation." 24 I & N Dec. at 197-98. Applying this framework to the petitioner in that case, the BIA found that the record did "not clearly show that the birth of petitioner's second child would be viewed as a violation of family planning policies in Fujian Province," and that even if it would, the record lacked persuasive evidence that the birth would trigger enforcement activity rising to the level of persecution. Id. at 202 (footnote reference omitted). Specifically, the BIA noted that although the 2006 Country Report documented reports of forced sterilization in that province, the 2007 Report indicated that State Department interviews with visa applicants from the Fujian Province yielded no evidence of forced abortions and that countrywide enforcement was uneven. See Id. at 202-03. Noting that physical coercion continues to be officially condemned, the BIA concluded that petitioner "ha[d] not carried his burden of showing that he [had] a well-founded fear of persecution in China on account of fathering two children." Id. at 203.

In Matter of J-W-S-, the BIA considered whether the petitioner, who had two United States citizen children, could qualify for asylum. Specifically, the issue was whether Petitioner had established that he would be subjected to forced sterilization upon his return to China. See 24 I & N Dec. at 189. The BIA observed that the most recent country reports indicated that children born overseas are not counted for birth planning purposes when the parents return to China. See id. at 190. It further noted that the 2005 Country Report did not contain any instances of returnees from the United States being forced to undergo sterilization procedures on their return. See id. at 191. The BIA expressly referenced a response from Chinese officials in the Fujian Province "that children born abroad, if not registered as permanent residents of China . . . are not counted against the number of children allowed under China's family planning laws." Id. at 193 (emphasis added).

In Matter of S-Y-G-, the BIA again applied the "case-by-case" framework established in J-H-S-. See 24 I & N Dec. at 251. In doing so, the BIA noted that the petitioner failed to address evidence in the record that children born abroad were not counted for the purpose of enforcing China's family planning policies. See id. at 255. The government urges us to glean from these three cases a definition of "refugee" that would bar relief for Lin.

"Generally, we accord Chevron deference where there is binding agency precedent on-point (either in the form of a regulation or a published BIA case)." Park v. Holder, 572 F.3d 619, 623-24 (9th Cir.2009) (holding that a BIA regulation defining domicile was a reasonable interpretation of statute at issue where statute was silent regarding the meaning of domicile) (citation and alteration omitted); see also Fregozo v. Holder, 576 F.3d 1030, 1034-35 (9th Cir.2009) (recognizing that Chevron deference is applicable to the BIA's construction of statutory terms in the Immigration and Nationality Act). Here, the government appears to argue that the BIA's "case-by-case" approach deserves Chevron deference. At least one other circuit has determined that the BIA's construction of 8 U.S.C. § 1101(a)(42)'s definition of refugee, favoring "case-by-case review" in lieu of a "categorical application of the well-founded fear provision to such claims," merits Chevron deference. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 224 n. 6 (2d Cir.2009). Because the issue of Chevron deference was not briefed by the parties or fleshed out during oral argument, we elect not to resolve the Chevron issue in this opinion. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir.2004) (declining to address issue raised by party at oral argument but not mentioned in either ...