                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2006

Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4509




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-4509


                                     BI YING LIN,

                                                             Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                             Respondent


                           On Petition for Review from the
                          United States Department of Justice
                            Board of Immigration Appeals
                               (BIA No. A 95-862-281)


                                 Argued: June 29, 2006

         Before: BARRY, VAN ANTWERPEN and GIBSON,* Circuit Judges.

                               (Filed: September 21, 2006)

For Petitioner:
Law Office of Richard Tarzia
Richard Tarzia
Gregory Marotta (ARGUED)
99 Millers Grove Road
Belle Mead, NJ 08502


   *
    The Honorable John R. Gibson, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit.
For Respondent:
Christopher J. Christie, United States Attorney
Leah A. Bynon, Assistant United States Attorney (ARGUED)
Office of the United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102

Lyle D. Jentzer, United States Attorney
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044




                               OPINION OF THE COURT


                            JOHN R. GIBSON, Circuit Judge.

       Petitioner Bi Ying Lin, a native and citizen of China, petitions for review of the

order of the Board of Immigration Appeals denying her application for asylum and

withholding of removal, in which she contended that if she returned to China with her

three American-born children, the government would have her sterilized against her will

because she had more children than allowed under China's one-child population-control

policy. Because we conclude that the Board's analysis in the order is too abbreviated for

us to review it, we remand for further proceedings.

       Lin came to this country without documentation, and once here, she married and

gave birth to three children who are all United States citizens. (Although it is outside the

record, we understand from oral argument that Lin now has a fourth child.) Removal



                                             -2-
proceedings were commenced against Lin; she concedes removability but claims asylum

and withholding of removal on the ground that she fears that if she takes her children with

her, she will be sterilized against her will, which would constitute persecution under 8

U.S.C. § 1101(a)(42).

       The Immigration Judge who heard Lin's case denied her application on two

grounds. First, he held that Lin could avoid persecution in China by leaving her children

in the United States and that whether Lin would be persecuted thus rested within her

control. Second, he held that Lin had not shown a well-founded fear of persecution.

       The Board adopted and affirmed the IJ's decision in an equivocal opinion. While

the Board did not explicitly endorse the IJ's reasoning that Lin could be required to chose

between taking her American-born children with her to China and avoiding sterilization,

the Board did say: "[W]e have previously held in the context of suspension of

deportation, that an alien illegally in the United States does not gain a favored status by

the birth of a child in this country." In re Bi Ying Lin, A95-862-281 (B.I.A. Sept. 19,

2005) (per curiam). The Board cited Matter of Pilch, 21 I&N Dec. 627, 632 (B.I.A.

1996), a suspension of deportation case on which the IJ had relied in concluding that Lin's

option of leaving the children could negate the reasonable fear of persecution. The

government does not urge us to uphold the Board's decision on this theory.

       The Board also held that Lin had not borne her burden of proof that she was

reasonably likely to be sterilized:

       [T]he Board cannot conclude based upon the evidence of record that the
       respondent has a well-founded fear of sterilization or persecution because


                                             -3-
       she may now be considered in violation of the population control law.
       Indeed, it is speculative at best as to whether the respondent will be subject
       to any coercive family planning program upon her return to China as a
       consequence of the birth of her three minor children who are natives and
       citizens of the United States. . . . There is also insufficient documentary
       evidence of record to convince the Board that there is any likelihood that
       the respondent will be sterilized by the Chinese authorities for the birth of
       the subject minor children.

Lin, slip op. at 1.

       We review the Board's findings of fact under the substantial evidence standard,

meaning that they are conclusive unless any reasonable adjudicator would be compelled

to find to the contrary. 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478,

481 n.1 (1992). We must decide the petition only on the administrative record before us.

8 U.S.C. § 1252(b)(4)(A).

       Lin's evidence that she would be likely to undergo sterilization included anecdotal

evidence of a friend and two relatives who were sterilized after giving birth to more than

one child; evidence of local birth control regulations from Fujian province according to

which Lin herself would be out of compliance; and the affidavit of a retired demographer,

John Shields Aird, that the Chinese birth control policy is likely to be applied to Chinese

nationals returning home from abroad with children born while they were away. The

government contends that Lin's evidence is out of date or has other defects. Perhaps all

this evidence could be explained away or shown to be insubstantial. However, taken at

face value, the evidence makes a prima facie case for asylum. See Guo v. Ashcroft, 386

F.3d 556, 566 (3d Cir. 2004). The Board did not discuss the evidence or give any reason

why it had rejected it. "When an agency makes a finding of fact without mentioning or


                                             -4-
analyzing significant evidence, its decision should be reconsidered." Zheng v. Gonzales,

415 F.3d 955, 963 (8th Cir. 2005) (internal quotation marks omitted); accord Chen v.

Gonzales, 417 F.3d 268, 272-73 (2d Cir. 2005) (cited with approval in Cham v. Attorney

Gen., 445 F.3d 683, 693 (3d Cir. 2006)).

      Moreover, the Board did not rely on competing evidence such as the State

Department Profile of Asylum Claims and Country Conditions, for the very good reason

that no such evidence was in the record. This absence of countervailing evidence

distinguishes Lin's case from In re C-C-, 23 I&N Dec. 899, 903 (BIA 2006), in which the

Board concluded that Aird's affidavit (which has been widely used in such cases) was less

persuasive than countervailing evidence.

      Accordingly, we will grant the petition for review and remand for further

proceedings consistent with this opinion.
