2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-27-2012

Gen Lin v.;Attorney General USA

Precedential or Non-Precedential: Precedential

Docket No. 12-1668

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1668

_____________

GEN LIN,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

_______________

On Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA 1:A087-438-534)

Immigration Judge: Honorable Roger C. Harris

_______________

Submitted Under Third Circuit LAR 34.1(a)

November 15, 2012

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

(Opinion Filed: November 27, 2012)

_______________
2

Zhou Wang

P. O. Box 130182

New York, NY 10013

 Counsel 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

P. O. Box 878, Ben Franklin Station

Washington, DC 20044

 Counsel for Respondent

_______________

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 
3

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 
4

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. 
5

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 (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, 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

(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. 

Second, it may be denied when the movant fails to introduce 

previously unavailable and material evidence. Id.; see also 8 

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 

 1 The BIA had jurisdiction under 8 C.F.R. § 1003.2. 

We have jurisdiction pursuant to 8 U.S.C. § 1252.
6

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. 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 
7

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

 2 The regulation we interpreted in Liu was 8 C.F.R. 

§ 287.6, which contained identical language to 8 C.F.R. 

§ 1287.6. The discrepancy in numbering is the result of the 

transfer of the Immigration and Naturalization Service’s 

functions to the Department of Homeland Security in March 

2003. 8 C.F.R. § 1001.1(c). There is no difference in 

substance between the two provisions. 

 Recognizing that “asylum 

applicants can not always reasonably be expected to have an 
8

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 decision when the petitioner did not follow 

authentication procedures but presented other evidence 

demonstrating that proper authentication would be 

impossible. 393 F.3d 427, 435 (3d Cir. 2005) (determining 

that it was abuse of discretion for BIA to refuse to consider 

expert testimony about political conditions in petitioner’s 

country of origin that made authentication impossible).

Lin argues that the BIA abused its discretion by failing 

to allow him to authenticate the documents in a manner other 

than that prescribed in 8 C.F.R. § 1287.6. He does not claim, 

however, that any such attempt to authenticate was actually 

made. Nor does he provide any evidence to suggest that 

authenticating those documents would have been impossible

or otherwise unreasonable, as the petitioners did in Leia and 
9

Liu. See Leia, 393 F.3d at 435; Liu, 372 F.3d at 533. In those 

cases, we did not lift the burden from the petitioner to 

establish a prima facie case for relief with authenticated 

documents. Rather, we held that, in some circumstances, 

authentication can be established through means other than 

the methods specifically delineated in § 1287.6. Leia, 393 

F.3d at 435 (allowing petitioner to “prove authentication by 

other means”); Liu, 372 F.3d at 533 (holding that the official 

methods of authentication are not the “exclusive means of 

authenticating records before an immigration judge”). Lin 

has evidently made no effort to establish the authenticity of 

his documents through any means, yet he asserts that the BIA 

has abused its discretion by denying him the opportunity to 

do so now. Essentially, he argues that he deserves a second 

bite at the apple, without providing any justification to excuse 

his failure to meet his initial burden. 

It is true that we have remanded cases to the BIA for 

further consideration of the authenticity of documents, but 

only when the BIA’s denial of a motion or appeal was based 

solely on the petitioner’s failure to follow the official 

procedures or lacked any consideration of the individual 

documents. See Huang, 620 F.3d at 391 (remanding where 

BIA rejected all newly submitted evidence as cumulative 

without considering the evidence); Sukwanputra v. Gonzales, 

434 F.3d 627, 636 (3d Cir. 2006) (vacating a BIA order on 

direct appeal in part because “the IJ refused to give any

weight to unauthenticated documentary evidence on the basis 

of [§ 1287.6] alone”); see also Liu, 372 F.3d at 533 (holding 

that it was legal error for the IJ to reject documents on the 

sole ground that they did not meet the specific authentication 

requirements in the regulation). Here, the BIA did not deny 

Lin’s motion solely on the ground that he failed to follow the 
10

authentication procedure in § 1287.6, and it did not 

summarily reject his evidence. Rather, the BIA questioned 

the authenticity of his documents because there was “no 

indication as to how the documents from Chinese sources 

came into [his] possession ... .” (J.A. at 3.) The BIA also 

noted that the photographs Lin submitted were taken at 

“undisclosed times and locations,” which prevented them 

from convincingly demonstrating that he had recently been 

engaged in church activities. (Id.) In the context of the IJ’s 

prior adverse credibility determination, the BIA considered

those deficiencies sufficient to prevent a prima facie showing 

of eligibility for relief.3

 3 Prior adverse credibility determinations are not 

always relevant on motions to reopen. In Guo v. Ashcroft, 

this Court held that when a prior credibility assessment is 

“utterly unrelated” to a later asylum claim, that assessment 

cannot justify subsequent denials of relief. 386 F.3d 556, 562 

(3d Cir. 2004). But that is not the case here. Lin’s adverse 

credibility determination was based on his failure to provide 

evidence corroborating his Christian faith and religious 

persecution. Unlike the petitioner in Guo, who incurred an 

adverse credibility determination with regard to her claim of 

religious persecution and then filed a motion to reopen based 

on China’s family planning policy, Lin’s initial application 

and motion to reopen are based on the same underlying basis 

for asylum: religious persecution. The BIA could thus rely on 

the prior credibility determination if it chose to do so. See 

Huang, 620 F.3d at 389 (explaining that the evidence of 

record is considered along with the new evidence in 

determining whether the petitioner has established a prima 

facie case for relief). 

 We cannot say that that conclusion 
11

was “arbitrary, irrational, or contrary to law.” Filja, 447 F.3d 

at 251 (citation and internal quotation marks omitted). 

In sum, the BIA considered the newly presented 

evidence and found it insufficient to establish a “reasonable 

likelihood that [Lin] is entitled to relief,” Huang, 620 F.3d at 

389, because Lin failed to established its authenticity. Given 

the heavy burden on a party moving to reopen removal 

proceedings, the BIA did not abuse its discretion in denying 

Lin’s motion on that basis. 

B. Failure to Submit a New Application for Asylum

Even if Lin had established a prima facie showing of 

eligibility for relief, the BIA appropriately denied his claim 

on procedural grounds. Federal regulations require that “[a]

motion to reopen proceedings for the purpose of submitting 

an application for relief must be accompanied by the 

appropriate application for relief and all supporting 

documentation.” 8 C.F.R. § 1003.2(c)(1). The BIA has held 

that “failure to submit an application for relief ... will 

typically result in the Board’s denial of the motion.” In re

Yewondwosen, 21 I. & N. Dec. at 1026. As the Supreme 

Court has explained, the Attorney General has a “legitimate 

interest in creating official procedures for handling motions to 

reopen deportation proceedings so as readily to identify those 

cases raising new and meritorious considerations.” INS v. 

Wang, 450 U.S. 139, 145 (1981) (per curiam). In recognition 

of that interest, this Court has agreed that denying a motion 

for failure to comply with procedural requirements is not an 

abuse of the BIA’s discretion. Nocon v. INS, 789 F.2d 1028, 

1033 (3d Cir. 1986). 
12

As the BIA noted in its denial of his motion, Lin did 

not submit a new application for relief with his motion to 

reopen, as required by 8 C.F.R. § 1003.2(c)(1).

4

 (See J.A. at 

3 (“The respondent has not submitted a new asylum 

application, as required.”).)5

 Lin does not contest this 

finding, and there is no indication in the record that he 

submitted the necessary application. In light of the 

mandatory language in § 1003.2(c)(1), and in recognition of 

the BIA’s authority to enforce its procedural requirements, 

Wang, 450 U.S. at 145, we conclude that that failure alone is 

a sufficient basis to deny his petition.

6

 4 Although the BIA did not specifically base its 

conclusion on this fact, it noted the lack of the required 

application and ultimately denied the motion based on the 

“totality of the circumstances.” (J.A. at 4.)

 In re Yewondwosen, 

5 In his motion to reopen, Lin repeated his requests for 

asylum, for withholding of removal, and for protection under 

the CAT. A motion to reopen proceedings on any of those 

grounds must be accompanied by “the appropriate application 

for relief ... .” 8 C.F.R. § 1003.2(c)(1). Although the BIA 

noted only Lin’s failure to file an application for asylum, that 

observation may have implicitly recognized that Lin also 

failed to file for withholding of removal, which can be raised 

through the same application. See 8 C.F.R. § 208.3(b) (“An 

asylum application shall be deemed to constitute at the same 

time an application for withholding of removal ... .”). In any 

event, Lin did not file an accompanying application for relief 

of any kind. 6 While the BIA may rightly enforce its procedural 

requirement that a petitioner submit a new application for 

relief with his motion to reopen, that does not mean that rigid 

enforcement will always be warranted. Cf. Lu v. Ashcroft, 
13

21 I. & N. Dec. at 1026; see also Jiang, 639 F.3d at 757 

(holding that it is within the BIA’s discretion to deny a 

petition based on petitioner’s failure to file the accompanying 

petition for relief); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 

1064 (9th Cir. 2008) (concluding that the BIA “did not abuse 

its discretion in determining that Romero-Ruiz did not satisfy 

the procedural requirements” because, among other things, he 

failed to file an accompanying application for cancellation of 

removal); Palma-Mazariegos v. Keisler, 504 F.3d 144, 147 

(1st Cir. 2007) (per curiam) (concluding that failure to file an 

accompanying application for relief is “independently 

sufficient to justify the denial” of a motion to reopen);

Waggoner v. Gonzales, 488 F.3d 632, 639 (5th Cir. 2007) 

(holding that the BIA did not abuse its discretion in denying a 

motion to reopen where the petitioner did not submit an 

appropriate application for relief). Accordingly, the BIA did 

not abuse its discretion in denying Lin’s motion to reopen. 

 

259 F.3d 127, 133 (3d Cir. 2001) (cautioning against a “strict, 

formulaic interpretation” of the procedural requirements for 

supporting a motion to reopen based on ineffective assistance 

of counsel); Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124-25 

(9th Cir. 2000) (holding that the BIA abused its discretion by 

imposing the procedural requirement that a motion to reopen 

be accompanied by supporting documentation when 

petitioner’s counsel made diligent efforts to obtain the 

necessary materials and his failure was due, in part, to the 

administrative tribunal’s own failure to respond to counsel’s 

requests). Moreover, the BIA retains its “clear authority” to 

reopen proceedings “in the interests of fairness and 

administrative economy,” even when other regulatory 

requirements have not been met. In re Yewondwosen, 21 I. & 

N. Dec. at 1027. 
14

III. Conclusion

For the foregoing reasons, we will deny the petition for 

review.