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Lin v. Holder

December 3, 2009

FENG GUI LIN, AKA FENGGUI LIN, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076-280-320.

The opinion of the court was delivered by: Rawlinson, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted June 5, 2009 -- Las Vegas, Nevada

Before: Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges, and Ralph R. Beistline,*fn1 District Judge.

OPINION

This case requires us to address a series of motions to reopen seeking to file successive asylum petitions on the theory that China's family planning policies have become more stringent since the time of the original removal proceedings. Feng Gui Lin (Lin), the petitioner in this case, specifically asserts that because she now has children, she fears that she will be forcibly sterilized if returned to China. We are unpersuaded that the sterilization policies in China have changed to the degree that relief is warranted. We deny Lin's petition.

I. BACKGROUND

Lin is a native and citizen of China. She was served with a Notice to Appear in April, 1999. Lin filed an application for asylum, asserting that she was persecuted in China because of her involvement with her boyfriend who was in the army. In March, 2000, the immigration judge (IJ) denied Lin's applications for relief and ordered her removed to China. The BIA summarily affirmed the IJ's decision.

Lin did not return to China. Rather, in 2005, Lin married Xing Xiong Dong, a legal permanent resident (LPR) of Chinese descent. In 2007, Lin submitted a motion to reopen to the BIA based on changed country conditions. Lin argued that circumstances in China had changed since her 2000 hearing, specifically that forcible sterilizations had been mandated by government officials in the Fujian province, her birthplace, for Chinese citizens who had more than one child abroad. Lin's affidavit in support of her motion to reopen indicated that she gave birth to a girl in 2006, a boy in 2007, and was expecting her third child to be born in May, 2008.

Lin also submitted an affidavit from her mother attesting to the forced sterilization of Lin's sister and sister-in-law. In addition, she included a letter from the Lianxing village in the Fujian province, informing Lin that people who have two children must undergo sterilization procedures after their second child's birth, and that because Lin was neither a citizen of the United States nor a permanent resident, she would be treated as a Chinese citizen subject to the family planning laws. The letter indicated that upon her return and the registration of her children, she "must undergo the required family planning procedures as all other local people did . . . "

Other documents in evidence were: an issuance addressing Zheng Yu He, a specific Chinese individual, who ostensibly violated the family planning laws while overseas; a 2003 administrative opinion from Changle City Family-Planning Administration regarding Zheng Yu He's violation of the family planning laws; a 2003 administrative decision from the Fujian Province family planning administration department regarding Zheng Yu He's violation; a chart of the fees assessed against Chinese parents based on different violations of the family planning laws; a July, 1999, question and answer session from Chang Le City referencing the sterilization requirement after the birth of a second child; a 2007 notice from Changquing village in Chang Le City requiring sterilization after the second child; a document describing monetary incentives for those who undergo sterilization dated 2007; the 2006 United States State Department Report on China's Human Rights Practices; an affidavit and other documents relating to an individual named Chen, Jin Fu from Changle who was subjected to forced sterilization upon returning from abroad; various news articles; and other supporting documents.

The Board of Immigration Appeals (BIA) denied Lin's motion to reopen, concluding that the submitted evidence did not establish a material change in country conditions, such that Lin now had an objective well-founded fear of persecution or faced a clear ...


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