                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-1853


XUE YAN LIN,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   January 29, 2009                  Decided:   May 6, 2009


Before MICHAEL, KING, and AGEE, Circuit Judges.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Gary Jay Yerman, YERMAN & ASSOCIATES, L.L.C., New York,
New York, for Petitioner.     Jem Colleen Sponzo, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.     ON
BRIEF: Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Civil Division, M. Jocelyn Lopez Wright, Assistant Director,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Petitioner            Xue    Yan    Lin,    a    native       and    citizen    of    the

People’s Republic of China, petitions for review of the August

14,    2007          decision      of   the   Board    of    Immigration       Appeals      (the

“BIA”), denying his motion to reopen immigration proceedings.

Lin maintains that changed country conditions in China, combined

with       the       birth   of     his   two     children      in    the    United    States,

justified a reopening — after approximately nine years — of his

application for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture (the “CAT”).

As explained below, we deny the petition for review.



                                                  I.

                                                  A.

       After illegally entering the United States on October 27,

1991, Lin filed an application for asylum and withholding of

deportation, 1 asserting that he had experienced past persecution

and    had       a    well-founded        fear    of   future     persecution     in    China,

predicated            on     his    resistance         to   the      country’s    communist

leadership and his participation in the 1989 demonstrations at

Tiananmen Square.               Lin was issued a notice to appear on February

       1
       After Lin filed his 1992 application for withholding of
deportation, applicable statutory changes replaced the term
“deportation” with a procedure designated as “removal.”



                                                  2
23,   1994,    alleging        that       he   was        deportable        for    entering    the

United States without inspection.                           An immigration judge (the

“IJ”), in a decision issued on February 21, 1997, denied Lin’s

application        for     relief     and        found      him        deportable       (the   “IJ

Decision”). 2          The IJ Decision granted Lin’s request to depart

voluntarily from the United States, however, and ordered that he

do so by May 21, 1997.

      Lin appealed the IJ Decision to the BIA, which summarily

dismissed his appeal on February 17, 1998.                               Lin failed to seek

judicial      review      of   the        BIA’s       rejection        of    his   appeal,      and

instead remained unlawfully in the United States.                                   On February

25,   2003,     Lin      married      a    lawful         permanent         resident     of    this

country, and the couple now has two children (both United States

citizens):         a     son   born       in   January          1997    (prior     to   the    IJ’s

Decision), and a daughter born in August 2005.

                                                 B.

      On March 16, 2007, more than nine years after the BIA’s

February 1998 dismissal of his appeal of the IJ Decision, Lin

submitted      a    motion      to    the        BIA       to    reopen      his    deportation

proceedings,        seeking      to       file        a    successive        application       for

asylum, withholding of removal, and protection under the CAT

      2
       The IJ Decision is found at J.A. 7-15. (Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed
by the parties in this appeal.)



                                                  3
(the       “Motion    to    Reopen”).       Lin     asserted      therein       that    his

immigration proceedings should be reopened by the BIA because

previously unavailable evidence established a change in country

conditions in China — particularly the increased enforcement of

family      planning       policies   in   the     Fujian     Province.         Lin    also

asserted      he     has   a   well-founded      fear    of   persecution       in     China

because of the births of his two children, in violation of that

country’s family planning policies, and that, if he returns to

China, he will be subjected to involuntary sterilization.

       In support of his Motion to Reopen, Lin submitted to the

BIA his affidavit; an affidavit from his father, who lives in

Fujian      Province;       an   amended    application         for    asylum    and    for

withholding of removal, and supporting affidavit; Lin’s and his

wife’s       birth    certificates;        their    marriage          certificate;      his

wife’s green card; birth certificates of their two children; and

family      photographs.         In   addition      to    the    foregoing       personal

evidence, Lin submitted other materials in support of the Motion

to Reopen. 3


       3
       The supporting materials filed with the Motion to Reopen,
in addition to personal evidence spelled out above, included a
Policy Statement from China’s Administrative Office of the
National Population and Family Planning Committee; a 1999
question and answer sheet issued by the Changle City Family
Planning Office, addressing China’s family planning policy;
demographer John Aird's September 2002 testimony before the
Congressional-Executive Commission on China; the May 2003
Consular Information Sheet on China; the 2004, 2005, and 2006
(Continued)
                                            4
        By its decision of August 14, 2007, the BIA denied the

Motion to Reopen (the “BIA Decision”). 4                      In so ruling, the BIA

decided that the Motion to Reopen was untimely because it was

filed       more     than   ninety    days   after      the    BIA’s   February     1998

dismissal       of    Lin’s    appeal   of   the   IJ    Decision,     and   that   the

motion did not otherwise fall under the statutory exception for

changed country conditions.                  The BIA Decision also concluded

that Lin had failed to make a prima facie showing of a well-

founded fear of persecution if he returned to China, because “he

has not shown a reasonable likelihood that he would be subject

to   more     than     fines    and   loss    of   any    government     job.”       BIA

Decision 2.           Lin thereafter filed his petition for review with

this Court, and we possess jurisdiction pursuant to 8 U.S.C.

§ 1252.




Department of State Country Reports on China; a 1997 policy
letter issued by China’s Department of Public Security; the 2005
and   2006   annual   reports  of   the   Congressional-Executive
Commission on China; the December 2004 testimony of Harry Wu,
Executive Director of the Laogai Research Foundation, before the
House of Representatives Committee on International Relations;
and two newspaper articles reporting human rights violations
arising from enforcement of China’s family planning policy.
        4
            The BIA Decision is found at J.A. 162-63.



                                             5
                                             II.

       We review for abuse of discretion the BIA’s denial of a

motion to reopen, but assess de novo the legal rulings made by

the BIA in connection therewith.                    INS v. Doherty, 502 U.S. 314,

323-24 (1992); Barry v. Gonzales, 445 F.3d 741, 744 (4th Cir.

2006).      We may only reverse the BIA’s denial of a motion to

reopen if its ruling was arbitrary, capricious, or contrary to

law.       Afanwi v. Mukasey, 526 F.3d 788, 794 (4th Cir. 2008)

(citing Doherty, 502 U.S. at 323-24).                     A BIA decision on such a

motion “is reviewed with extreme deference, given that motions

to reopen ‘are disfavored . . . [because] every delay works to

the    advantage       of   the    deportable        alien   who     wishes    merely      to

remain     in   the    United      States.’”          Barry,   445    F.3d     at      744-45

(quoting Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999)).



                                             III.

                                              A.

       In this proceeding, Lin seeks review of the BIA Decision

denying     his    Motion         to   Reopen       his   application       for     asylum,

withholding       of   removal,        and   protection      under    the     CAT. 5     The


       5
       Lin does not seek review of the BIA’s 1998 dismissal of
his appeal of the IJ Decision. Indeed, we lack jurisdiction to
assess the propriety of that dismissal because Lin failed to
timely petition for review.       See 8 U.S.C. § 1252(b)(1)
(providing that petition for review be filed within thirty
(Continued)
                                              6
provisions of § 240(c)(7) of the Immigration and Nationality Act

(the “INA”), 8 U.S.C. § 1229a(c)(7), apply to an alien who has

been ordered removed from this country and thereafter seeks to

reopen his removal proceedings.     Generally, such an alien may

file a single motion to reopen and that motion must be filed

within ninety days of the entry of the final order of removal.

See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).

These statutory time and numerical limitations are inapplicable,

however, and no time limit is imposed on a motion to reopen

“based on changed country conditions arising in the country of

nationality or the country to which removal has been ordered.”

8    U.S.C.    § 1229a(c)(7)(C)(ii);    see     also     8    C.F.R.

§ 1003.2(c)(3)(ii). 6   To   proceed   under   the   changed-country

conditions exception to the statutory time limit, an applicant



days); Stone v. INS, 514 U.S. 386, 405 (1995) (explaining such
thirty-day period is “jurisdictional in nature and must be
construed with strict fidelity”).
     6
       The changed-country conditions exception provided for in 8
U.S.C. § 1229a(c)(7)(C)(ii), and which, if applicable, results
in no time limit being applicable to a motion to reopen, states:

     There is no time limit on the filing of a motion to
     reopen if the basis of the motion is to apply for
     [asylum] and is based on changed country conditions
     arising in the country of nationality or the country
     to which removal has been ordered, if [the supporting]
     evidence is material and was not available and would
     not have been discovered or presented at the previous
     proceeding.



                                7
must present evidence of changed country conditions that “is

material      and   was   not    available      and   would    not      have    been

discovered or presented at the previous proceeding.”                     8 U.S.C.

§ 1229a(c)(7)(C)(ii);       see     also    8   C.F.R.      § 1003.2(c)(3)(ii).

Furthermore, “[a] motion to reopen proceedings shall state the

new facts that will be proven at a hearing to be held if the

motion is granted and shall be supported by affidavits or other

evidentiary material.”          8 C.F.R. § 1003.2(c)(1).          In addition to

identifying     the   previously    unavailable       evidence,    an    applicant

seeking to utilize the changed-country conditions exception must

demonstrate his prima facie eligibility for asylum, that is, he

must demonstrate that the new evidence would likely alter the

result of his case.             See INS v. Abudu, 485 U.S. 94, 104-05

(1998); Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998).

      In this situation, we are obliged to reject Lin’s petition

for review if the BIA Decision denied his Motion to Reopen on

any   valid    ground.     In    that   respect,      the   Supreme     Court   has

identified “at least” three grounds on which the BIA is entitled

to deny such a motion to reopen:

      •       The applicant’s failure to introduce “previously
              unavailable, material evidence”;

      •       Failure of the applicant to establish “a prima
              facie case for the underlying substantive relief
              sought”; and

      •       A determination by the BIA that even if these two
              requirements were satisfied, “the movant would

                                        8
             not be entitled         to    the       discretionary        grant    of
             relief.”


See    Abudu,   485   U.S.      at   104-05      (“There       are   at    least        three

independent     grounds    on    which     the       BIA   may   deny      a   motion     to

reopen.”); see also INS v. Doherty, 502 U.S. 314, 323 (1992)

(same); Zhang v. Mukasey, 543 F.3d 851, 854 (6th Cir. 2008)

(same); Onyeme, 146 F.3d at 234 (same).

                                           B.

       As heretofore explained, the Motion to Reopen, filed by Lin

on March 16, 2007, was untimely under the applicable statute

unless it falls under the changed-country conditions exception,

where no time limit exists.               Lin has acknowledged as much, but

maintains that the ninety-day time limit was excused because the

changed country conditions in China authorized the relief he

sought.     The BIA Decision denied the Motion to Reopen by relying

on the first two of the three bases identified by the Supreme

Court — first, that Lin had failed to establish a change in

country     conditions    because     he       had    only    alleged      a   change      in

personal conditions, and did not otherwise establish any changed

country conditions in China; and, second, that even if a change

in country conditions was shown, he had nonetheless failed to

make    a    prima    facie      showing        of     a     well-founded         fear     of

persecution.



                                           9
                                                 1.

      On the question of whether the country conditions in China

had   changed       since   the       earlier         proceedings,      the    BIA    Decision

first found that to “the extent the motion is based on the

changes in personal circumstances” — the birth of Lin’s children

in    the    United     States         —     such       personal       circumstances          are

insufficient to support a motion to reopen.                               BIA Decision 2.

Second, the BIA Decision ruled that Lin had not persuasively

shown that the country conditions in China had changed, because

his   evidence      established         only      “a    continued       implementation        of

policies     rather     than      a    material         change    in    policies.”            Id.

Predicated      thereon,       the         BIA    concluded        that        Lin    had     not

persuasively        shown   that       his   Motion       to   Reopen     fell       within   an

exception      to    the    otherwise            applicable      ninety-day          statutory

deadline.

      On the issue of changed personal circumstances, the BIA and

the Attorney General have mischaracterized the Motion to Reopen

as relying on such circumstances.                      In fact, the Motion to Reopen

specified to the contrary — specifically seeking to reopen “in

light of a change of conditions in China.”                         J.A. 29.          Certainly,

the birth of Lin’s children is a significant factor with respect

to his Motion to Reopen, because the possibility that he might

suffer      persecution     arises         therefrom.            And,     as    we    recently

recognized, changed personal circumstances arising in the United

                                                 10
States — such as the birth of children — do not alone authorize

a successive asylum application, and do not otherwise constitute

the changed country conditions justifying an exception to the

ninety-day statutory deadline.              See Zheng v. Holder, No. 08-

1255, ___ F.3d ___ (4th Cir. Apr. 16, 2009).                   Notwithstanding

these observations, however, the BIA has not ruled that changed

personal circumstances — when a change in country conditions

otherwise   exists     —   precludes    it    from     granting   a    motion   to

reopen.       Rather,      changes     in    personal       circumstances,      if

accompanied      by    sufficient      evidence        of    changed     country

conditions, may support an otherwise untimely motion to reopen.

See Chen v. Mukasey, 255 F. App’x 573, 577-78 (2d Cir. 2007)

(unpublished) (observing that “whether a petitioner with both

changed personal circumstances and changed country conditions .

. . can rely on those changed country conditions to reopen his

case, despite an untimely motion, when the underlying change in

personal circumstances postdated his order to depart,” is an

open question).

     On the issue of changed country conditions, Lin’s petition

for review finds support in a recent decision of the Eleventh

Circuit, Li v. U.S. Attorney General, 488 F.3d 1371 (11th Cir.

2007).      In   Li,    the   Eleventh       Circuit     considered     evidence

strikingly similar to that presented in this proceeding, and

concluded that the evidence was material and “clearly satisfied

                                       11
the    criteria      for    a     motion        to       reopen.”         488   F.3d       at    1375.

Nevertheless, whether Lin’s evidence was sufficient to establish

a change in country conditions is a close question.                                         Compare

Shao    v.    Mukasey,      546      F.3d       138,      169     (2d   Cir.    2008)      (drawing

“distinction         between      changes            in     the    substance         and    in        the

enforcement of China’s population control policy”), with Li, 488

F.3d    1371.        Notably,         the       BIA       does    not     contend     that       Lin’s

evidence was previously available; and such evidence appears to

postdate his initial IJ hearing.                           If we were to conclude that

Lin’s    evidence        established            a     change       in     country     conditions,

however, his petition for review would yet be unsuccessful if

the BIA was correct in ruling that Lin had failed to make a

prima       facie    showing         for    the          relief    sought.           Because,          as

explained below, Lin did not make a prima facie showing, we need

not decide whether the Motion to Reopen sufficiently established

a change in country conditions.

                                                    2.

       As     explained      above,         Lin          seeks     asylum,      withholding           of

removal, and relief under the CAT, asserting that, if he is

returned      to    China,      he    will       face       persecution         because         he   has

violated China’s family planning policy by having two children

in the United States.                In order to be eligible for asylum, Lin

must    establish          refugee         status          based     on     either      his          past

persecution         in   China,      or     a    well-founded           fear    of    persecution

                                                    12
there,       on    a    protected    ground.         See     8    C.F.R.    § 1208.13(b).

Because Lin does not assert, in support of his Motion to Reopen,

that he suffered past persecution in China, 7 he must — in order

to be accorded relief — establish a well-founded fear of future

persecution on one of the statutorily-enumerated grounds.                                See

Lin-Jian      v.       Gonzales,    489   F.3d      182,    187    (4th    Cir.    2007);   8

C.F.R. § 208.13(b).

       A sterilization is deemed to be persecution, and “a person

who has a well founded fear that he or she will be forced to

undergo such a procedure . . . shall be deemed to have a well

founded fear of persecution on account of political opinion.”                               8

U.S.C.       § 1101(a)(42)(B).            As   we    have        explained,      the   “well-

founded      fear       of   persecution”      statutory         mandate    contains     both

subjective and objective components.                       Ngarurih v. Ashcroft, 371

F.3d       182,   187     (4th   Cir.     2004).       To    satisfy       its    subjective

       7
       In his initial proceedings before the IJ, Lin claimed that
he suffered past persecution in China as a result of his
political resistance and participation in the Tiananmen Square
demonstration. The IJ, however, found Lin’s testimony regarding
past persecution to be “replete with inconsistencies” and
lacking corroboration. IJ Decision 2. Because Lin did not seek
judicial review of this adverse credibility finding, it is not
now contestable.     This finding cannot, however, be used to
discredit Lin’s testimony on all issues.        See Lin-Jian v.
Gonzales, 489 F.3d 182, 191 (4th Cir. 2007) (explaining that
despite adverse credibility finding regarding petitioner’s
subjective fear of future persecution, IJ made no credibility
findings regarding petitioner’s past persecution, and therefore
IJ was “essentially silent” on petitioner’s credibility on that
issue).



                                               13
component,      an     applicant      must     present       “candid,     credible,     and

sincere testimony demonstrating a genuine fear of persecution.”

Id.      In    order    to     prevail    on      the   objective        component,     the

applicant is obliged to offer “specific, concrete facts that

would lead a reasonable person in like circumstances to fear

persecution.”         Id. at 187-88.

      In   support      of     his   Motion    to     Reopen,      Lin   presented     both

personal and background evidence.                   Specifically, Lin’s affidavit

reported that friends and family in China had advised that “the

government      has     increased      the      use     of    forced     abortions      and

sterilization.”          J.A. 50.        Lin’s father, who lives in Fujian

Province, reported that, in the prior year, family planning laws

had been “more strictly carried out in [Changle City, Fujian

Province].”      Id. at 79.          Lin’s father gave two examples in which

couples having more than two children were forcibly sterilized,

concluding that “[e]xamples like these are very common in my

hometown.”       Id.      Lin’s father also reported that the village

committee in Changle City was aware that Lin had two children

and that “[i]f he returned to China, he had to undergo necessary

Family Planning procedures, such as sterilizations, unless he

became     a   U.S.    citizen.”       Id.        Lin    also      submitted    objective

background      evidence        with     his      Motion      to    Reopen,     such     as

Department      of     State    Country      Reports     on     China,     in   order    to



                                             14
bolster   his    anecdotal    evidence      and    establish   an   increase   in

China’s enforcement measures.

      The BIA Decision rejected Lin’s evidence, ruling that Lin

had failed to make a prima facie case of a well-founded fear of

persecution.     The BIA recognized that “[Lin] reports he is known

to have two children,” but nevertheless concluded that “he has

not shown a reasonable likelihood that he would be subject to

more than fines and loss of any government job.”                    BIA Decision

2.    The BIA then ruled that the fact that “local officials in

some areas of China have insisted upon sterilization does not

establish that [Lin] has a reasonable fear of being forcibly

sterilized, especially if his wife and children remain here.”

Id.

      Put simply, the BIA did not err in concluding that Lin had

failed    to    carry   his   burden     on       the   well-founded   fear    of

persecution question.         The BIA did not reject Lin’s claim of

subjective fear of persecution, ruling only that Lin had failed

to satisfy the objective component of the statutory mandate.                   In

so ruling, the BIA relied on its own precedential decisions,

where it had already evaluated much of the background evidence

submitted and relied upon by Lin.                 See BIA Decision 2 (citing

Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); In re J-W-S-,

24 I. & N. Dec. 195 (BIA 2007); In re C-C-, 23 I. & N. Dec. 899

(BIA 2006)); see also Shao v. Mukasey, 546 F.3d 138 (2d Cir.

                                       15
2008)     (denying    petitioners’       petitions         for    review    in   above

cases).      Importantly,        the   BIA    has    observed      that    enforcement

efforts    in   Fujian     Province      have       been   “lax,”    “uneven,”     and

subject to “wide variation.”             In re J-W-S-, 24 I. & N. Dec. at

193-94.     Moreover, in ruling on Lin’s claim, the BIA relied on

precedent recognizing a “lack of national policy with respect to

foreign-born children,” and explaining that violators of that

policy are, at worst, subject to fines.                    BIA Decision 2 (citing

Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir. 2005)).

     The BIA, having previously considered much of the evidence

submitted and relied on by Lin, was entitled to address such

evidence in a summary fashion.                See Wang v. BIA, 437 F.3d 270,

275 (2d Cir. 2006) (observing BIA must not “expressly parse or

refute”     each     individual        argument       or    piece     of    evidence,

particularly evidence “which the BIA is asked to consider time

and again”).         Indeed, the BIA was entitled to find that the

personal evidence offered by Lin fails to satisfy his burden of

establishing the objective element of the fear of persecution

issue.      Lin’s    and   his    father’s        affidavits      provide   anecdotal

evidence only, and they are otherwise uncorroborated.                       See Zheng

v.   Mukasey,       546    F.3d    70,       72    (1st    Cir.     2008)    (“Absent

substantiation, self serving affidavits from petitioner and her

immediate family are of limited evidentiary value.”).                         In sum,

after carefully assessing this record, we cannot conclude that

                                         16
the BIA’s determination that Lin failed to establish a well-

founded fear of persecution was either arbitrary, capricious, or

contrary   to   law.     As    a   result,   the    BIA   did     not   abuse   its

discretion in denying Lin’s Motion to Reopen. 8



                                      IV.

     Pursuant    to    the    foregoing,     we    deny   Lin’s    petition     for

review of the BIA’s denial of his Motion to Reopen.



                                                  PETITION FOR REVIEW DENIED




     8
       The burden of proof for withholding of removal is greater
than for asylum. Thus if an applicant is ineligible for asylum,
he is necessarily ineligible for withholding of removal.     See
Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). Because
Lin has failed to make a prima facie showing that he is eligible
for asylum, he is also unable to establish that he is eligible
for withholding of removal.     Similarly, Lin’s claim for CAT
relief lacks merit because this claim also relies on the
probability of forcible sterilization.      To be eligible for
relief under the CAT, Lin must demonstrate “that it is more
likely than not that he . . . would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). On
this record, we cannot conclude that the BIA erred in concluding
that Lin did not meet his burden of proof on the CAT claim.


                                       17
