Gen Lin v. Attorney Gen. U.S.

• Decision Date: 15 November 2012
• Docket Number: No. 12–1668.,12–1668.
• Citation: 700 F.3d 683
• Parties: GEN LIN, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

700 F.3d 683

GEN LIN, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent.

No. 12–1668.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit

LAR 34.1(a) Nov. 15, 2012.

Opinion Filed: Nov. 27, 2012.

Zhou Wang, New York, NY, for Petitioner.

Eric H. Holder, Jr., Stuart F. Delery, Ernesto H. Molina, Jr., Kate D. Balaban, Jamie M. Dowd, Thomas W. Hussey, Office of Immigration Litigation, Civil Division, U.S. Dept. of Justice, Washington, DC, for Respondent.

Before: SCIRICA, FISHER, and JORDAN, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Gen Lin petitions for review of a February 23, 2012 decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings. For the following reasons, we will deny the petition.

I. Background

Lin is a native and citizen of the People's Republic of China. He entered the United States illegally on or about May 15, 2004, across the Mexico–Texas border. On December 12, 2008, he was served with a Notice to Appear (“NTA”) before an Immigration Judge (“IJ”), and he has conceded removability under 8 U.S.C. § 1182(a)(6)(A)(i). To avoid removal, Lin petitioned for asylum, for withholding of removal, and for protection under the Convention Against Torture (“CAT”).

In support of his petition, Lin asserted that he fled China to escape religious persecution he suffered because of his Christianity. Lin claims that he joined a Christian church in China and was baptized there on June 22, 2003. He says that on October 18, 2003, he was detained for five days in a Chinese detention center for practicing his religion, and that he was interrogated about his church, severely beaten, and deprived of water and sleep. According to Lin, after his family paid a fine and he was released from detention, he continued to fear persecution and decided to leave the country. He chose to come to the United States because it “is a country... [where] you have freedom to believe and practice your religion.” (J.A. at 181.) He testified that he still practices Christianity and would continue to practice if removed to China.

On August 23, 2010, the IJ denied Lin relief and ordered him removed to China. That decision was based on Lin's failure to file his petition for asylum within one year of his arrival, and on an adverse credibility determination. The IJ found Lin's testimony unworthy of belief largely because Lin had failed to provide corroborating witness testimony, despite having relatives in the United States, fellow congregants at his church, and an eight month delay in removal proceedings in which to collect evidence. Lin's appeal of the IJ's decision was denied by the BIA on August 25, 2011.

Lin filed a timely motion asking the BIA to reopen proceedings in his case. He claimed to have previously unavailable evidence showing that he is now wanted for arrest in China for his religious practices. Lin submitted a copy of a summons for his arrest allegedly issued on September 5, 2011, by the “Public Security Bureau” of his hometown, after both the IJ's August 2010 order and the BIA's August 2011 denial of appeal. (J.A. at 23.) He also provided documentation of a friend's arrest in China for practicing Christianity, and letters from that same friend and from Lin's sister corroborating that Lin is currently wanted for arrest. Finally, he provided a document allegedly from government authorities in his hometown warning students and teachers against “involvement in illegal religious activities” ( Id. at 62–63), and a number of photographs purportedly showing that he continues to practice Christianity. Lin did not, however, explain how he obtained this new documentation, nor did he note any efforts to authenticate it. Lin also failed to file a new application for asylum.

The BIA held that Lin did not satisfy his burden of showing prima facie eligibility for relief, and it denied his motion to reopen. In particular, it noted that there was no indication of how Lin had acquired the new documents from Chinese sources, nor had Lin made any attempt to authenticate them. The BIA's denial was ultimately based on the totality of the circumstances, which included Lin's failure to file a new application for asylum, his reliance on unauthenticated evidence, and the IJ's prior adverse credibility determination.

This timely petition for review followed.

II. Discussion¹

We review for abuse of discretion a decision declining to reopen removal proceedings. INS v. Doherty, 502 U.S. 314, 323–24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). Under that standard, we give the BIA's decision broad deference and generally do not disturb it unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and internal quotation marks omitted). We also note at the outset that “[m]otions for reopening of immigration proceedings are disfavored,” Doherty, 502 U.S. at 323, 112 S.Ct. 719, and that “[g]ranting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case,” INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (internal quotation marks omitted).

There are three substantive grounds upon which the BIA may deny a motion to reopen immigration proceedings. First, a motion may be denied when the movant fails to establish a prima facie case for the relief sought. Id. at 104, 108 S.Ct. 904. Second, it may be denied when the movant fails to introduce previously unavailable and material evidence. Id.; see also8 C.F.R. § 1003.2(c) (“A motion to reopen proceedings shall not be granted unless it appears to the [BIA] that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.”). Finally, when the ultimate relief sought is discretionary, as with asylum or withholding of removal, “the BIA may leap ahead, as it were, over ... threshold concerns ... and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief.” Abudu, 485 U.S. at 105, 108 S.Ct. 904. The BIA may also deny a motion to reopen immigration proceedings on certain procedural grounds, including failure to file an accompanying application for relief. Jiang v. Holder, 639 F.3d 751, 757 (7th Cir.2011) (holding that it is within BIA's discretion to deny a petition based on petitioner's failure to file accompanying petition for relief); see also In re Yewondwosen, 21 I. & N. Dec. 1025, 1026 (BIA 1997) (en banc) (explaining that failure to file an accompanying petition for relief will generally result in denial of petitioner's motion).

Here, the BIA's decision to deny Lin's motion to reopen his immigration proceedings was based on both substantive and procedural grounds. Substantively, the BIA concluded that the adverse credibility determination against Lin and his reliance on unauthenticated documents prevented him from establishing prima facie eligibility for relief. Procedurally, Lin failed to submit a new application for asylum, as required by 8 C.F.R. § 1003.2. Either the substantive or the procedural ground, if well-founded, is sufficient to deny Lin's motion to reopen.

A. Authentication of Documentary Evidence

To establish a prima facie case for asylum, an applicant “must produce objective evidence that, when considered together with the evidence of record, shows a reasonable likelihood that he is entitled to relief.” Huang v. Att'y Gen., 620 F.3d 372, 389 (3d Cir.2010) (citation omitted). On a motion to reopen removal proceedings, that evidence must be shown to have been unavailable and undiscoverable during the previous proceeding. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Although the alien bears the burden of proving eligibility for the requested relief, 8 C.F.R. § 1003.2.(c)(1), the BIA “must actually consider the evidence and argument that a party presents,” Zheng v. Att'y Gen., 549 F.3d 260, 266 (3d Cir.2008) (citation and internal quotation marks omitted), even though it need not expressly parse each point. Id. at 268.

Federal regulation requires that documents submitted in support of an asylum petition be properly authenticated. 8 C.F.R. § 1287.6. Specifically, 8 C.F.R. § 1287.6 requires that official records, such as the arrest warrant that Lin submitted, be “evidenced by an official publication” or “certified by an officer in the Foreign Service of the United States, stationed in the foreign country where the record is kept.” Id. None of the documents that Lin submitted met that requirement. As Lin correctly notes, however, we have held that § 1287.6 “is not an absolute rule of exclusion.” Liu v. Ashcroft, 372 F.3d 529, 532 (3d Cir.2004).² Recognizing that “asylum applicants can not always reasonably be expected to have an authenticated document from an alleged persecutor,” id., we concluded in Liu that they must sometimes be allowed to “attempt to prove the authenticity ... through other means....” Id. at 533. We emphasized that exceptions to the standard authentication requirement are especially necessary when the petitioner attempted to comply with the regulations but “failed due to lack of cooperation from government officials in the country of alleged persecution.” Id.

We have therefore previously granted petitions for review where the petitioner attempted, but failed, to authenticate documents, or otherwise demonstrated that it was not reasonable to expect the petitioner to provide authenticated documents. In Liu, the petitioner's counsel attempted to authenticate abortion records from China, but found that authentication was impossible because Chinese officials reported that they do not authenticate such documents. Id. at 530. Similarly, in Leia v. Ashcroft we remanded a BIA...