NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4589

___________

MEI MEI LIN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A073 575 835)

Immigration Judge: Honorable Donald V. Ferlise

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 20, 2012

Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges

(Opinion filed June 26, 2012)

___________

OPINION

___________

PER CURIAM

Mei Mei Lin, a native and citizen of China, petitions for review of an order of the 

Board of Immigration Appeals (“BIA” or “Board”), which denied her motion to reopen 

removal proceedings. We will deny the petition for review.
2

Lin entered the United States illegally in 1994. She applied for asylum and related 

relief, pursuing a claim that she had been subject to a forced abortion. The Immigration 

Judge found her incredible, found that her application was frivolous, and denied relief. 

The BIA affirmed on December 10, 2002. In January 2003, Lin filed a motion to reopen, 

asking that proceedings be reopened because she was pregnant with a second U.S.-citizen 

child. In a decision dated July 15, 2003, the BIA denied the motion, finding that the 

submitted documentation was “insufficient to establish that a Chinese national becomes 

subject to punitive birth control measures such as coerced sterilization if returning with 

children born outside of China.”

Lin filed a second motion to reopen on May 16, 2011, stating that she would be 

persecuted if she returned to China because she now practices Falun Gong. Lin argued 

that her motion was not subject to numerical and time limits because it was based on 

changed country conditions. With her motion, Lin included a new asylum application, 

her affidavit, a marriage certificate, birth certificates for her children, photographs 

purporting to show her practicing Falun Gong, a letter from her mother, a Resident 

Committee notice, a 2007 asylum profile report from the State Department, and various 

media reports from 2011 concerning the failed “Jasmine Revolution.” The BIA found 

that: (1) her affidavit was speculative and not based on personal knowledge; (2) the letter 

from her mother was unsworn, speculative, and did not establish that the treatment Lin 

would face in China would amount to persecution; and (3) the notice from Changle City 

Ying Qian Jie Dao Ying Qian Community Resident Committee was unauthenticated and 
3

did not specify how Lin would be treated if she failed to comply with its summons.1 The 

BIA found that her evidence was not sufficient to show that treatment of Falun Gong 

practitioners in China had materially changed, nor that the Chinese government had or 

would become aware of her Falun Gong practice and specifically target her for 

persecution. The BIA also declined to exercise its sua sponte authority to reopen as Lin’s 

situation was not “exceptional.” Lin filed a timely, counseled petition for review.

We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). We review the BIA’s 

denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 

(3d Cir. 2004). Under this deferential standard of review, we will not disturb the Board’s 

decision unless it is arbitrary, irrational, or contrary to the law. Id.

Because Lin’s motion to reopen was a second motion and was not filed within the 

required 90 days, it had to be based on changed country conditions in China with respect 

to the Chinese government’s treatment of Falun Gong practitioners.2 Although Lin 

 

1

The notice is addressed to Lin’s mother, and states that the committee had received 

“credible information along with some photo evidence that someone in the United States 

witnessed your daughter Lin, Meimei participated [sic] in evil cult Falun Gong activities 

in the U.S. . . . .” A.R. 123. The notice orders Lin “to immediately stop participating in 

all Falun Gong activities against the Chinese government in the U.S., and return to China 

to accept serious punishment from the government.” Id. The notice goes on to indicate 

that if Lin disobeys “and refuse[s] to voluntarily return to China to accept further 

punishment, once she was caught in the future, she would be more severely punished and 

jailed.” Id.

2

“An alien may file one motion to reopen proceedings,” and such a motion “shall state 

the new facts that will be proven at a hearing to be held if the motion is granted, and shall 

be supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(A),(B). 

The “motion must be filed no later than 90 days after the date on which the final 

administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. 

§ 1003.2(c)(2), except that the time and number limitations do not apply where the alien 
4

submitted evidence that suggested changed circumstances for Falun Gong practitioners 

since the time of her January 1999 hearing, we agree with the BIA that Lin’s evidence is 

not “sufficient” and “persuasive” enough to establish a prima facie case for reopening.

She did not establish that the possible treatment she would face would amount to 

persecution. Even assuming that the government would notice her Falun Gong activity in 

China, and even assuming they would decide to follow through with the threat to 

“punish” her and “jail” her, the evidence does not specify what her punishment would be, 

nor how long she would be detained. Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir. 2005) 

(persecution denotes “extreme conduct”). Lin’s affidavit was speculative, and the vague 

references in her mother’s affidavit3and the village committee’s statement regarding

potential detention and “severe” punishment were insufficient to show that any penalty 

imposed on Lin for practicing Falun Gong would rise to the level of persecution. See

e.g., Kibinda v. Att’y Gen., 477 F.3d 113, 119-20 (3d Cir. 2007) (maltreatment by prison 

guards over five-day period did not rise to level of persecution); Dandan v. Ashcroft, 339 

F.3d 567, 573-74 (7th Cir. 2003) (single three-day detention, in which applicant was 

 

seeks to “apply or reapply for asylum or withholding of deportation based on changed 

circumstances arising in the country of nationality or in the country to which deportation 

has been ordered, if such evidence is material and was not available and could not have 

been discovered or presented at the previous hearing,” id. at 1003.2(c)(3)(ii). See also 8 

U.S.C. § 1229a(c)(7)(C)(ii).

3 Although Lin characterizes the letter from her mother as an affidavit, it does not appear 

to have been sworn to before a person authorized to administer oaths. Because we find it 

unpersuasive even if properly sworn, we need not determine if such a letter would be 

sufficient to constitute “authentication.” See Chen v. Att’y Gen., 676 F.3d 112, 117 (3d 

Cir. 2011) (Immigration Judge “properly discounted” document that “had not been 

authenticated by any means at all, such as an affidavit from [the petitioner’s] mother as to 
5

deprived of food and beaten by police, resulting in swollen face, did not constitute 

persecution).

For the foregoing reasons, we hold that the BIA did not abuse its discretion in 

denying Lin’s motion to reopen. We will therefore deny the petition for review.

 

how the document was obtained”).