602 F. App'x 789
11th Cir.2015Background
- Lin, a Chinese national, was ordered excluded in absentia in 1994 after failing to appear at an exclusion hearing; he remained in the U.S. for ~20 years.
- In 2007 Lin filed a pro se motion to reopen based on China's family‑planning policy (two U.S.‑born children) asserting risk of forced sterilization and fines; IJ denied as untimely and not prima facie eligible.
- In 2013 Lin filed a second motion to reopen alleging changed country conditions (increased coercive family‑planning enforcement) and submitted affidavits, reports (State Department, Congressional testimony), local notices, and expert commentary.
- The IJ denied the second motion; the BIA affirmed, finding Lin’s evidence showed some changed conditions (so time/number bars did not apply) but failed to establish prima facie eligibility for asylum, withholding, or CAT relief.
- The BIA concluded the record did not show a pattern of forced sterilizations in Fujian Province, that U.S.‑born children might not be counted for family‑planning purposes, and that fines alleged would not amount to persecution; it also denied reopening as a discretionary matter given Lin’s long delay and failure to timely challenge the 1994 order.
Issues
| Issue | Lin's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion in denying motion to reopen | Evidence of changed country conditions and affidavits establish prima facie eligibility for asylum, withholding, and CAT | Evidence insufficient to show forced sterilization, economic persecution, or likelihood of torture; denial discretionary | Denied — no abuse of discretion; evidence insufficient for prima facie showing and denial proper in discretion |
| Whether time/number bars excused by changed country conditions | Changed conditions excuse time/number limits | Changed conditions claimed, but even if excused, merits fail | Time/number bars inapplicable given some changed evidence, but merits still fail |
| Whether evidence demonstrates risk of forced sterilization (persecution) | Affidavits and reports show forced sterilizations upon return to China | Record shows forced sterilization not common in Fujian; local rules and expert reports undermine claim | Substantial evidence supports BIA that forced sterilization risk not established |
| Whether alleged fines constitute economic persecution | Fines would be severe and cause impoverishment | No evidence of net worth, income, or local economy to show fines would cause persecution | Held insufficient to show economic persecution; general assertion of heavy fines inadequate |
Key Cases Cited
- Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir.) (standard of review for motions to reopen)
- Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir.) (BIA may deny reopenings for lack of prima facie case or as discretionary)
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir.) (standard for reversing factual findings)
- Tan v. U.S. Att’y Gen., 446 F.3d 1369 (11th Cir.) (BIA not required to discuss every piece of evidence if decision is reasoned)
- Ali v. U.S. Att’y Gen., 443 F.3d 804 (11th Cir.) (heavy burden to show new evidence would likely change outcome)
- Wu v. U.S. Att’y Gen., 745 F.3d 1140 (11th Cir.) (economic persecution standard requires severe economic disadvantage)