Lin v. U.S. Dept. of Justice

• Decision Date: 30 October 2006
• Docket Number: Docket No. 06-2356-AG.
• Parties: Tian Ming LIN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Alberto R. Gonzales,<SMALL><SUP>1</SUP></SMALL> Respondents.
• Court: U.S. Court of Appeals — Second Circuit

473 F.3d 48

Tian Ming LIN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Alberto R. Gonzales,¹ Respondents.

Docket No. 06-2356-AG.

United States Court of Appeals, Second Circuit.

Submitted and Decided: October 30, 2006.

Rehearing Granted: January 5, 2007.

Yee Ling Poon, Robert Duk-Hwan Kim, Law Offices of Yee Ling Poon, New York, NY, for petitioner.

Alison R. Drucker, Senior Litigation Counsel (Peter D. Keisler, Assistant Attorney General Civil Division; Donald E. Keener, Deputy Director, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondents.

Before: POOLER, SOTOMAYOR and KATZMANN, Circuit Judges.

PER CURIAM:

Tian Ming Lin, a citizen of the People's Republic of China, recently petitioned for review of an April 20, 2006 order of the Board of Immigration Appeals ("BIA") denying his motion to reopen removal proceedings on the basis of changed personal circumstances. In re Tian Ming Lin, No. A 79 084 460 (B.I.A. Apr. 20, 2006). Lin also moved in this Court to remand his case to the BIA to consider previously unavailable evidence suggesting that forced sterilzation is part of the official family-planning policy in Fujian Province, China, and that this policy is applied to the repatriated parents of foreign-born children. Lin, the father of two United States-born children, contended that this new evidence established that he would face forced sterilization if returned to Fujian Province. We granted Lin's motion to remand. See Tian Ming Lin v. U.S. Dep't of Justice, 468 F.3d 167 (2d Cir.2006) (per curiam). We now grant the government's petition for rehearing and revisit the basis for our earlier decision. Because, as the government correctly observes, there is no procedure by which a petitioner can make a motion in the court of appeals to remand a case for consideration of new evidence, we deny Lin's motion to remand. Nonetheless, given the gravity of Lin's claim of future persecution and the potentially farreaching implications for similarly situated petitioners if the new evidence Lin presents is authentic, we remand this case to the BIA. Although the government concurs in our decision to remand, it asserts that we have authority to remand only when it requests that we do so. It also can be argued, however, that it would be within our inherent equitable power to remand Lin's claim of future persecution in light of the new evidence. Without choosing between these grounds, we remand this case to the BIA for further proceedings consistent with this opinion.

BACKGROUND

Lin entered the United States on November 30, 2000, and shortly thereafter was detained by immigration authorities. He applied for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"),² claiming past persecution on the basis of his mother's forcible sterilization and fear of future persecution on the basis of, among other things, the possibility that he would be subjected to forcible sterilization himself if he returned to his home in Fujian Province, China. On February 25, 2002, Immigration Judge ("IJ") John Opaciuch denied Lin's application. The IJ concluded that Lin could not claim refugee status on the basis of his mother's past persecution and that he had failed to carry his burden of proof regarding his claim of future persecution, given that a State Department report on China stated that forcible sterilization is uncommon and does not "continue to systematically occur." The IJ therefore rejected Lin's claims for asylum and withholding of removal. He also rejected Lin's claim under the CAT for lack of corroboration. On August 29, 2003, the BIA affirmed the IJ's decision without opinion. Because of a BIA processing error, Lin did not receive the BIA's order, and the BIA reissued the order on March 28, 2005, treating it as having been entered on this later date. Lin initially sought judicial review of the BIA's order in this Court, but ultimately declined to pursue his appeal.

On January 31, 2006, Lin filed a motion to reopen with the BIA on the basis of his marriage to another Chinese citizen after the BIA's order. He stated that he and his wife had one child, she was pregnant with a second, and he would take his family with him to China if he were removed from the United States. He contended that although he and his wife had been living outside China, they would be subject to China's one-child policy upon their return, and that, as a result, his wife would be forced to abort her pregnancy or one or the other of them would be forcibly sterilized. In support of these contentions, Lin submitted a number of exhibits discussing China's family-planning policies, including an affidavit from John Shields Aird (the "Aird Affidavit"), a retired government demographer and China scholar, which included Aird's conclusion that China's family-planning policy requires forcible sterilization of parents of two or more children.

The BIA denied Lin's motion to reopen on April 20, 2006, citing its decision in In re C-C-, 23 I. & N. Dec. 899, 2006 WL 805042 (B.I.A.2006), in which it held that a Chinese parent of two children could not establish prima facie eligibility for asylum, for purposes of a motion to reopen, on the basis of the Aird Affidavit. Id. at 901-04. In Lin's case, the BIA concluded that none of the evidence he submitted with his motion to reopen "demonstrates that citizens with two United States-born children who return to China will be forced to undergo sterilization." It therefore found that, like the petitioner in In re C-C-, Lin had failed to establish prima facie eligibility, and it denied his motion to reopen.

Lin sought review of the BIA's order in this Court. He also moved to remand his case to the BIA, citing our recent decision in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), in which we discussed documents that may constitute evidence of an official policy of forcible sterilization in Fujian Province. Id. at 112-13. We granted Lin's motion in a brief opinion. See Tian Ming Lin, 468 F.3d at 169. We explained that "[b]ecause the Shou Yung Guo documents are too important to ignore, we remand this case to the BIA so that it may determine whether they establish the existence of an official policy, in Changle City or Fujian Province generally, of forced sterilization of parents of two or more children, including parents whose children were born abroad, and so that the BIA may reassess, in light of these documents, Lin's claim that he risks forced sterilization if returned to his home province in China." Id. The government now petitions for rehearing, concurring in our decision to remand but claiming that we lacked authority to remand on Lin's motion.

DISCUSSION

Lin is correct that the documents recently presented to this Court for the first time in Shou Yung Guo suggest that there may in fact be an official policy of forced sterilization in Fujian Province, or at least in its city of Changle. Shou Yung Guo discussed documents reflecting 2003 decisions of the Changle City Family-Planning Administration and the Fujian Province Department of Family-Planning Administration, both indicating that parents of children born abroad are subject to the same family-planning policies as parents of native-born children, as well as a 1999 document entitled "Q & A for Changle City Family-Planning Information Handbook" issued by Changle City family-planning authorities, which states that forced sterilization is mandated for parents of two or more children. 463 F.3d at 112-13. Unlike the documents presented with Lin's motion to reopen, the Shou Yung Guo documents, if authentic, appear to be official statements that the family-planning policy in Changle City, or Fujian Province generally, requires forcible sterilization of parents of two or more children and that this policy applies to parents whose children were born abroad. These documents potentially undermine our continued reliance, and the BIA's, on the State Department reports, which may have been prepared without the benefit of these documents. In Shou Yung Guo, we remanded for the BIA to reconsider the petitioner's claim in light of these documents. Id. at 115.

In its petition for rehearing, the government argues that we may not take judicial notice of the Shou Yung Guo documents in adjudicating Lin's petition for review and motion to remand. Yet notwithstanding the statutory injunction to "decide the petition [for review] only on the administrative record on which the order of removal is based," 8 U.S.C. § 1252(b)(4)(A), we have previously taken judicial notice of facts outside the record, particularly regarding country conditions. See Hoxhallari v. Gonzales, 468 F.3d 179, 186 n. 5 (2d Cir.2006) (per curiam) ("Of course, we may always exercise independent discretion to take judicial notice of any further changes in a country's politics that occurred between the time of the BIA's determination decision [sic] and our review."); see also Latifi v. Gonzales, 430 F.3d 103, 106 n. 1 (2d Cir.2005) (per curiam) ("[W]e take judicial notice of the fact that the Democratic Party returned to power in Albania through general elections in July."). Moreover, were we to take judicial notice of the Shou Yung Guo documents, we would not be taking judicial notice of an official policy of forcible sterilization in Fujian Province, the existence of which clearly is not a fact "not subject to reasonable dispute" as required for taking judicial notice. Fed.R.Evid. 201(b). Rather, we would be taking notice only that another panel of our Court remanded a case to the BIA for reconsideration of previously unexamined evidence that, in the opinion of that panel, "apparently reflects governmental policy in the province in China where [the petitioner] lived," and which the government conceded appeared to support the petitioner's assertion of changed country conditions. Shou Yung Guo, 463 F.3d...