754 F.3d 9
1st Cir.2014Background
- Yong Xiu Lin, a Chinese national, entered the U.S. without a visa in June 2000 and applied for asylum, withholding, and CAT relief in September 2000 alleging forced family‑planning measures (IUD/abortion) and property damage in China.
- At the 2001 merits hearing the IJ found Lin not credible, questioned several documents (including an "abortion certificate"), and denied relief; the BIA affirmed in 2005 and this court denied review.
- Lin filed a first motion to reopen in 2006 based on an immigrant-petition development; the BIA denied it as untimely.
- In May 2013 she filed a second motion to reopen (filed >7 years after the first motion and ~12 years after the removal order) asserting materially changed country conditions in China—particularly increased coercive sterilizations—and submitted unauthenticated documents, letters from others, and media reports.
- The BIA denied the second motion as untimely and number‑barred without meeting the changed‑circumstances exception, finding the evidence unauthenticated, insufficiently probative of likely persecution in Lin’s home province, and inadequate to show economic persecution; it also declined to reopen sua sponte.
Issues
| Issue | Lin's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the second motion is exempt from the timeliness/number restrictions because of "materially changed country conditions" | Reports of coercive sterilizations (e.g., Puning County 2010) and other documents show China now uses force in family‑planning enforcement, creating a new risk for Lin | Evidence shows isolated local incidents, not a national or province‑wide change; Lin’s motion remains untimely and number‑barred | BIA did not err: incidents in other counties/provinces do not establish materially changed conditions for Lin in Fujian; motion stayed barred |
| Whether Lin’s country‑condition evidence was sufficiently authenticated and reliable | Unsworn letters, an unsigned local office letter, and media reports are adequate to show changed conditions | Documents were unauthenticated, unsworn, and contradicted by Lin’s prior adverse credibility finding; thus they lack evidentiary weight | BIA permissibly discounted unauthenticated and self‑serving documents given prior credibility findings |
| Whether anecdotal declarations from other asylum applicants are probative (similar‑situs) | Declarations from women who said they were sterilized in Fujian after childbirth abroad show a pattern relevant to Lin | Declarants are not similarly situated, statements are unsworn and unauthenticated, and incidents occurred during periods of lax enforcement | BIA reasonably found the anecdotal declarations insufficient to show changed conditions or individualized risk |
| Whether fines/fees and other economic measures constitute persecution | Lin relies on State Dept./Human Rights reports showing large fines for unauthorized children (possibly up to multiples of income) | Reports are general; Lin provided no evidence that she individually would face ruinous fines or deliberate economic persecution | BIA did not err: general evidence of fines insufficient to show severe, deliberate economic persecution |
Key Cases Cited
- Perez v. Holder, 740 F.3d 57 (1st Cir. 2014) (motions to reopen reviewed for abuse of discretion)
- Roberts v. Gonzales, 422 F.3d 33 (1st Cir. 2005) (standard of review for BIA discretionary decisions)
- Liu v. Holder, 727 F.3d 53 (1st Cir. 2013) (deference to BIA on motions to reopen)
- Gasparian v. Holder, 700 F.3d 611 (1st Cir. 2012) (changed‑circumstances exception to timeliness/number bars)
- Zhu v. Holder, 622 F.3d 87 (1st Cir. 2010) (applicant bears heavy burden to prove materially changed circumstances)
- Wu v. Holder, 741 F.3d 211 (1st Cir. 2014) (economic disadvantage must be severe and deliberate to amount to persecution)
- Chen v. Holder, 675 F.3d 100 (1st Cir. 2012) (BIA may discount unauthenticated or non‑similarly situated declarations)
- Zheng v. Mukasey, 546 F.3d 70 (1st Cir. 2008) (self‑serving affidavits of interested witnesses have limited weight after adverse credibility findings)