2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-3-2014

Ai Lin v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4012

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-4012

_____________

AI MIN LIN,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

______________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A073-577-407)

Immigration Judge: Honorable Annie S. Garcy

______________

Submitted Under Third Circuit LAR 34.1(a)

On November 8, 2013

______________

Before: GREENAWAY, JR., VANASKIE, and ROTH, Circuit Judges.

(Opinion Filed: July 3, 2014)

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

Ai Min Lin (“Lin”) seeks review of the September 26, 2012 final order rendered 

by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ
2

Garcy”) order that Lin be removed to China, and denying Lin’s application for asylum, 

withholding of removal, and protection under the United Nations Convention Against 

Torture (“CAT”). For the reasons that follow, we will deny her petition for review.

I. Factual Background

Lin is a native and citizen of the People’s Republic of China, whose home village 

is Gongyu, located in Guantou Township in the Fujian Province. Lin entered the United 

States in 1992 without proper documentation. During her extended and unlawful stay, 

she married Zheng Yong Hua, a Chinese citizen, in New York in 2007. Lin and her 

husband have three children, two girls and one boy, all of whom were born in the United 

States.

In 1997, Lin was placed into removal proceedings before the Newark Immigration 

Court. Seeking relief from removal, Lin sought asylum, withholding of removal, and 

CAT protection. She withdrew her application in 1998 upon accepting a grant of 

voluntary departure. However, Lin did not voluntarily depart the United States, as was 

required by the grant of voluntary departure. Instead, in 2006, she filed a motion to 

reopen requesting yet another opportunity to seek asylum based on a claim of past 

persecution and a fear of future persecution in China for having violated China’s family 

planning policy. An immigration judge (“IJ Dogin”) granted Lin’s motion to reopen in 

2007. Lin filed an amended application seeking asylum, withholding of removal, and 

CAT protection with the immigration court on March 29, 2007. 

On June 27, 2007, IJ Dogin denied Lin’s applications seeking relief and 
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protection. Specifically, IJ Dogin found her claim of past persecution to be 

unsubstantiated by the record and her claim of fear of future persecution to be

contradicted by determinations made in prior BIA decisions. On appeal, the BIA 

sustained IJ Dogin’s determination regarding the past persecution claim, but remanded 

for reconsideration of Lin’s fear of future persecution claim. The BIA also found that IJ 

Dogin “failed to adequately consider [Lin’s] objective evidence . . . in light of the Third 

Circuit’s recent decision,” Zheng v. Att’y Gen., 549 F.3d 260, 265-69 (3d Cir. 2008) 

(recognizing that the BIA has a duty to explicitly consider all evidence of country 

conditions in the record that materially bear on an asylum applicant’s claim). (App. 

1868.) While not believing that the documents Lin submitted necessarily spoke to the 

current country conditions (which would thereby implicate Zheng), the BIA found,

nonetheless, that “remand of proceedings [was] warranted.” Id.

On remand, Lin filed additional documentation and testified in support of her 

claim of fear of future persecution. Lin testified that she fears forcible sterilization 

because of her violation of the family planning policy requiring a person with one son to 

be sterilized. 

Following a hearing, IJ Garcy denied all relief, finding that Lin failed to 

demonstrate that she held a well-founded fear of future persecution. While IJ Garcy 

found Lin to be credible, and applauded her efforts to authenticate documents from 

China, she ruled that Lin failed to show that her fear of sterilization was objectively 

reasonable because the documentary evidence of record was insufficient to meet her 
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burden. (App. 18.) Specifically, IJ Garcy found Lin’s evidence regarding the family 

planning policy in her local township not to be entitled to much weight in considering a 

change in country conditions. The documents from the village committee and township 

family planning office had not been authenticated, nor were there other traditional 

markers of credibility, such as signatures of officials who might speak to their 

authenticity. All Lin provided was an affidavit from her mother certifying that she had 

collected those documents from the town officials.

On September 26, 2012, the BIA affirmed IJ Garcy’s decision, and issued a final 

order dismissing her appeal. The BIA found that IJ Garcy properly reviewed the 

voluminous record and duly considered the evidence particular to Lin’s case, including 

documents submitted from China. The BIA also affirmed IJ Garcy’s strong reliance on 

publications issued by the Department of State, including the 2007 United States 

Department of State Profile of Asylum Claims and Country Conditions for China (“2007 

Profile”). The BIA agreed with IJ Garcy’s conclusion, based on the record evidence, that 

Lin had failed to distinguish her case from other precedential BIA decisions concluding 

that the use of physical coercion in carrying out China’s family planning policy is 

“uncommon and unsanctioned by China’s national laws,” and that the policy is generally 

enforced through incentives and economic-based policies. Matter of J-H-S-, 24 I.&N.

Dec. 196, 203 (B.I.A. 2007).

The instant petition for review was timely filed.

II. Jurisdiction and Standard of Review
5

We have jurisdiction to review a final order of the BIA pursuant to 8 U.S.C. § 

1252(a)(1). Zhu v. Att’y Gen., 744 F.3d 268, 271 (3d Cir. 2014). Our review is of the 

BIA’s decision, although we also review the IJ’s decision to the extent that the BIA 

adopted or deferred to the IJ’s analysis. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 

2005). Where, as in this instance, an alien seeking asylum does not allege past

persecution, she must establish that she has a well-founded fear of future persecution. 

See Chavarria v. Gonzalez, 446 F.3d 508, 516 (3d Cir. 2006) (citing 8 U.S.C. § 

1101(a)(42)).

To qualify for asylum, an applicant must demonstrate a subjective fear that 

persecution will result upon her return to her home country, and that fear must be 

“objectively reasonable in light of the circumstances of the alien’s case.” Huang v. Att’y 

Gen., 620 F.3d 372, 381 (3d Cir. 2010). The term “persecution” includes “threats to life, 

confinement, torture, and economic restrictions so severe that they constitute a threat to 

life or freedom,” but “does not encompass all treatment that our society regards as unfair, 

unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 

1993). Among other things, a well-founded fear of persecution must be based on both a 

subjectively genuine fear of persecution and an objectively reasonable possibility of 

persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). To establish 

eligibility for withholding of removal, an applicant must demonstrate “a clear probability 

of persecution.” See Fatin, 12 F.3d at 1238 (quoting INS v. Stevic, 467 U.S. 407, 430 

(1984)).
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“So long as the BIA’s decision is supported by ‘reasonable, substantial, and 

probative evidence on the record considered as a whole,’ we will not disturb the BIA’s 

disposition of the case.” Chavarria, 446 F.3d at 515 (quoting INS v. Elias-Zacarias, 502 

U.S. 478, 481 (1992)).

III. Analysis

Lin argues that she met her burden by demonstrating a well-founded fear of future 

persecution, and the BIA’s denial of her applications for relief should be reversed and

remanded for a proper consideration of all of the evidence she has submitted. First, Lin 

posits that the BIA erred in affirming IJ Garcy’s assignment of minimal weight to Lin’s 

documents from China. Second, Lin contends that the BIA erred in affording greater 

weight to the 2007 Profile. Lin argues that such errors led to a mistaken finding by the 

BIA that Lin’s violations of the family planning policy do not give rise to a well-founded 

fear of persecution. In support of her position, Lin submitted many documents, including 

opinion letters from her Township, affidavits from her husband and mother, expert 

statements about documents from China, as well as personal identification documents. 

Asylum

Lin argues that several documents from her locality of Guantou Township should 

have been given greater consideration, including: 1) “Notification with regard to 

Tightening of this year’s Implementation of Birth Control Measures;” 2) a statement of 

Guantou’s family planning policy from the People’s Government of Guantou Township

called “Notification with regard to the Issues on Stepping Up the Implementation of the 
7

Population and Family Planning Policy;” and 3) a Village Committee letter specifically 

threatening Lin with “injections, induction, sterilization and monetary fines” as a 

consequence of the birth of her two children and her then third pregnancy. (Appellant Br. 

15.) 

IJ Garcy explicitly discussed these documents and noted that, while “well-satisfied 

that [Lin] has attempted, through her attorney, to authentic [sic] information about the 

local birth policy of Guantou Town,” IJ Garcy nonetheless afforded these documents 

minimal weight because they were unsigned and unsworn, obtained for the purpose of the 

hearing, failed to reference a specific local birth policy or law, and the writers were 

unavailable for cross-examination. (App. 19.) Lin argues that these documents do

reference specific birth policies or laws, and that the BIA’s and IJ’s requirements that the 

documents must be signed and sworn in order to determine credibility, are contradicted 

by submissions from the Department of Homeland Security (which also are not sworn 

and signed). (Appellant Br. 17.) 

“The BIA must provide sufficient analysis to demonstrate that it has truly 

performed a full review of the record, including the evidence that may support the alien’s 

asylum claim.” Huang, 620 F.3d at 388. Here, the BIA reviewed the above-mentioned

documents, and concluded that “the evidence establishes no uniform policy regarding the 

implementation of the population control law with respect to children born outside 

China.” (App. 5.) Further, the BIA approved IJ Garcy’s decision to afford limited 

weight to the documents because of their unsigned and unsworn nature. IJ Garcy noted 
8

Lin’s attempts to authenticate the documents discussed above, but ultimately discounted 

them in her assessment because of the lack of indicia of credibility. 

The BIA’s and IJ’s evaluation of such documents is supported by our Circuit’s 

precedents. See Chen v. Att’y Gen., 676 F.3d at 117 (finding that the IJ “properly 

discounted” Petitioner’s “Village Committee document,” which “has not been 

authenticated”). Unlike in Huang, where the BIA “discussed none of the evidence” 

(thereby warranting vacation of the final order of removal), Huang, 620 F.3d at 388; here, 

the BIA thoroughly discussed much of Lin’s evidence and explained why the evidence 

did not support a well-founded fear of persecution. The BIA concluded that “even 

accepting a violation of the family planning policy of the respondent’s home province, 

the evidence of record does not establish that such a violation would be punished in a 

way that would give rise to a well-founded fear of persecution.” (App. 5.) 

Lin also presented an affidavit from her husband that averred that if Lin was 

removed to China, the entire family would go with her back to Fujian Province. The BIA 

properly gave no weight to that statement, because Lin’s husband was not made available 

for cross-examination. 

Lin next argues that “[t]hrough its exclusive reliance on the State Department’s 

2007 Profile . . . the Board has created an impermissibly – and impossibly – high asylum 

standard for Lin to meet . . . .” (Appellant Br. 19.) To that end, Lin questions the 

reliance on a source that she posits is a “problematic source[]” because the findings are 

“temper[ed] . . . based on diplomatic considerations” and much of the information comes 
9

from China which “has an obvious incentive to downplay [its] involvement in human 

rights violations.” (Id. at 20-21.) 

The BIA and IJ Garcy do indeed rely upon the 2007 Profile. The 2007 Profile, 

however, does not create any sort of “standard,” as Lin contends. Rather, the 2007 

Profile provides an overview on the country conditions of China, including a discussion 

of forced sterilization in China and Fujian Province in particular. Chen v. Att’y Gen., 676 

F.3d at 114-15. The BIA stated in its September 26, 2012 final order that it is appropriate 

for IJ Garcy to rely on such State Department Reports and Profiles as the “best resource 

for assessing country conditions.” (App. 5.) The BIA cited to this Circuit’s precedential 

opinions in Chen and Zubeda for the proposition that such State Department reports are 

reliable. Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) (stating that country reports are 

the “most appropriate” and perhaps the “best resource” for determining country 

conditions). 

The BIA is entitled to weigh and evaluate the evidence in the manner it deems 

appropriate. The BIA “may give whatever weight it deems appropriate to that evidence 

in light of all of the other evidence presented.” Zhu v. Att’y Gen., 744 F.3d 268, 275 (3d 

Cir. 2014). Indeed, such reliance upon the 2007 Profile is well-established in our Circuit. 

See Chen v. Att’y Gen., 676 F.3d at 114 (affirming with approval the BIA’s 

characterization of the 2007 Profile as “highly probative evidence”); see also Yu v. Att’y 

Gen., 513 F.3d 346, 349 (3d Cir. 2008) (“This Court has repeatedly recognized that State 

Department reports may constitute substantial evidence.”). 
10

As stated earlier, we review the BIA’s evidentiary rulings deferentially. Cheng v. 

Att’y Gen., 623 F.3d 175, 182 (3d Cir. 2010). Under this deferential standard, we cannot 

say that the BIA abused its discretion in affording greater weight to the 2007 Profile, 

even as it considered all the evidence in the record including support for the criticisms of 

the 2007 Profile that Lin raised. (App. 5.) (“We hold that the Profile, an official 

published document of the [Department of State], is entitled to greater evidentiary weight 

than the Sapio report.”). 

After reviewing the evidence presented, we conclude that the evidence in the 

record does not provide a sufficient basis for overturning the conclusions reached by the 

BIA. See Chen v. Ashcroft, 376 F.3d at 223 (“[A]fter reviewing the record as a whole we 

are convinced that the record evidence does not compel us to reach a conclusion contrary 

to that of the IJ and the BIA.”). In the instant case, the BIA and IJ Garcy considered all 

the evidence of country conditions presented in the record that materially bear on Lin’s 

claims. Specifically, IJ Garcy noted that “[d]ocumentary evidence . . . has been carefully 

considered in coming to a decision in this case.” (App. 20.) The BIA and IJ Garcy 

considered Lin’s village documents, even if Lin disagrees with the weight accorded to 

them. They considered the 2007 Profile and determined that it constituted reliable 

evidence undermining Lin’s position. In addition, they concluded that there was a dearth

of sufficient evidence to show that Fujian Province’s family planning policy would be 

applied to Lin despite the fact that her children were born in the United States. Cf. 

Zheng, 549 F.3d at 268-69 (finding abuse of discretion where the BIA did not mention 
11

Petitioner’s affidavits, city letters, or other documents submitted by Petitioner). 

Given that the BIA considered all of the evidence in the record, together with IJ

Garcy’s determinations and conclusions, and explained its reasons for weighing and 

balancing the evidence as it did, we are not compelled to reach a conclusion contrary to 

that of either the IJ nor BIA. Cf. Zhu, 744 F.3d at 279 (remanding where, in denying a 

motion to reopen, the BIA failed to “meaningfully consider[] the evidence and arguments 

[Petitioner] presented” and failed to explain why the BIA rejected certain evidence). 

Therefore, it was permissible for the BIA to find that Lin failed to meet her burden of 

proof. See, e.g., Yu, 513 F.3d at 349 (where “the BIA’s explanation of why it decided to 

credit [State Department] reports” over evidence set forth by Petitioner was “well 

reasoned,” it “necessarily follows that the BIA’s resolution of this matter was supported 

by substantial evidence”).

Witholding of Removal and CAT Protection

“The threshold for asylum is lower than for protection under the withholding of 

removal or CAT provisions . . . .” Id. Because Lin did not meet the standard for 

obtaining asylum, she also failed to satisfy the higher burden of proof required for CAT 

and withholding of removal under Section 241(b)(3) of the Act. Zubeda, 333 F.3d at 

463; see also Chen v. Att’y Gen., 676 F.3d at 117. Therefore, Lin’s CAT and withholding

claims were properly denied. 

III. Conclusion
12

For the foregoing reasons, we will deny the petition for review and affirm the 

decision of the BIA.