Song Lin v. Jefferson Sessions
701 F. App'x 630
| 9th Cir. | 2017Background
- Song Lin, a Chinese national, filed an untimely motion to reopen removal proceedings alleging ineffective assistance of two prior attorneys: one at the merits hearing and a second who failed to timely file a reopening motion.
- Lin sought to reopen to apply for asylum based on political opinion arising from "other resistance" to China’s coercive population-control policies.
- Lin submitted a new, detailed declaration recounting early/illegal marriage, two births in violation of policy, removal of an IUD, his wife’s use of a cousin to avoid prenatal checks, his wife’s forcible sterilization, fines, threats to his father’s home, and relocation to avoid harassment.
- Multiple family declarations (in Chinese) and U.S. State Department country reports accompanied Lin’s motion to reopen, corroborating his account.
- The BIA denied reopening as untimely and on the merits, finding no prejudice from counsel’s performance and concluding Lin had not shown detention or physical harm constituting persecution.
- The Ninth Circuit reviewed the BIA’s denial for abuse of discretion (with de novo review for purely legal questions) and granted the petition to reopen, remanding for further proceedings.
Issues
| Issue | Lin's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Lin merits equitable tolling for an untimely motion to reopen based on ineffective assistance of counsel | Prior counsel’s incompetence prevented timely filing; Lin exercised due diligence and complied with Matter of Lozada | Motion was untimely and BIA permissibly denied reopening | Court remanded: BIA did not address prejudice adequately; Lin demonstrated prejudice and plausible entitlement to relief |
| Whether counsel’s inadequate performance prejudiced Lin’s asylum claim | Counsel’s poor preparation/presentation may have affected outcome; new evidence shows a plausible asylum claim based on "other resistance" | BIA found no prejudice because Lin was not detained or physically harmed | Court held prejudice shown: counsel’s failures may have affected outcome; Lin has plausible grounds for relief |
| Whether resistance to China’s population-control policies qualifies for asylum absent forced sterilization/abortion to the applicant personally | "Other resistance" can support asylum; Lin’s family’s experiences (wife’s forced sterilization, fines, threats, relocation) show resistance and persecution | BIA required detention/physical harm and rejected persecution finding without such evidence | Court held prior precedent allows asylum for "other resistance" and that persecution can be nonphysical; Lin showed a plausible claim of past persecution |
| Whether the BIA properly evaluated evidence of persecution (fines, economic threats, forced sterilization of spouse, harassment) | These measures constitute persecution or form part of broader reprisals for resistance | BIA erred by focusing on absence of detention/physical harm and not considering economic/psychological harms | Court held BIA abused discretion by failing to consider nonphysical forms of persecution and corroborating evidence |
Key Cases Cited
- Cano-Merida v. INS, 311 F.3d 960 (9th Cir. 2002) (standard of review for BIA denial of motion to reopen and legal questions reviewed de novo)
- Singh v. Holder, 658 F.3d 879 (9th Cir. 2011) (elements for equitable tolling based on ineffective assistance; BIA’s merits framework for counsel-based reopening)
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (prejudice standard: counsel’s performance may have affected outcome suffices)
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (equitable tolling principles for untimely motions to reopen)
- Nai Yuan Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010) (asylum may be granted for "other resistance" to China’s coercive population-control program)
- Ming Xin He v. Holder, 749 F.3d 792 (9th Cir. 2014) (applying "other resistance" and asylum principles in the China family-planning context)
- Kovac v. INS, 407 F.2d 102 (9th Cir. 1969) (persecution need not include physical harm)
- Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004) (persecution can be emotional or psychological)
- Baballah v. Ashcroft, 367 F.3d 1067 (9th Cir. 2004) (substantial economic deprivation threatening life or freedom may constitute persecution)
- Tadevosyan v. Holder, 743 F.3d 1250 (9th Cir. 2014) (abuse of discretion standard for BIA reopening decisions)