                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2231




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IMG-063                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-2231
                                       ___________

                                          QIN LIN
                                     a/k/a KUMN LUM
                                                             Petitioner

                                              v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A77-174-598)
                  Immigration Judge: Honorable Charles M. Honeyman
                     ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      May 1, 2008

      Before:     SCIRICA, Chief Judge, FUENTES AND GARTH, Circuit Judges

                               (Opinion filed May 19, 2008)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Qin Lin petitions for review of a final order of the Board of Immigration Appeals

(“BIA”). For the reasons that follow, we will grant the petition in part, deny it in part,
and dismiss it in part.1

                                    I. Background

       Lin is a native of the Fujian province of China. She arrived unlawfully in the

United States in April 1999 and shortly thereafter submitted a first application for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”),

claiming that she had been married in China, had an unauthorized child there, and feared

forced sterilization if she returned. In May 2000, an Immigration Judge (“IJ”) in New

York found her incredible, denied her application, and ordered her removal. On appeal,

the BIA affirmed the decision.

       In May 2003, Lin moved to reopen and remand her removal proceedings. Among

other things, she sought derivative adjustment of status based on a new marriage to Yun

Ming Lee, who was potentially eligible for adjustment of status due to an approved I-140

labor certification. She also applied a second time for asylum, withholding of removal,

and protection under the CAT, this time based on the births of two daughters in the

United States.

       During the remanded proceedings, in order to prove the validity of her current

marriage, Lin initially testified that her first marriage in China ended in divorce.

However, she later admitted in an I-601 affidavit seeking waiver of inadmissibility that


   1
     The BIA consolidated her proceeding with that of her husband, Yung Ming Lee. Her
husband’s proceeding was remanded by the BIA for the IJ’s clarification of the
discretionary denial of relief and for an on-the-record adjudication for those applications
for relief. A.R. 0005.

                                              2
she had never been married in China and that previously submitted divorce papers were

fraudulent. IJ Honeyman denied her applications and found her removable as charged.

She appealed to the BIA, and during her appeal, filed a motion to remand based on the

birth of a third child. On March 23, 2007, the BIA affirmed the IJ’s decision and denied

the motion to remand. Lin then petitioned to this Court.

                                   II. Asylum

       The BIA affirmed the IJ’s pretermission of Lin’s second asylum application for

failure to apply within the statutory deadline. A.R. 0004, 0006; see INA § 208(a)(2)(B)

[8 U.S.C. § 1158(a)(2)(B)]. Lin now argues that she made her new application for

asylum while she was pregnant with her third child. Thus, she claims this constitutes a

“change in circumstances” sufficient to excuse her delay in filing. However, the record

reflects that she based her application on the birth of her second child, not her pregnancy

with her third child. The BIA recites that the second child was born on October 20, 2003,

but that her new application for asylum was not signed or submitted until January 2005.

The BIA did not consider this to be a “reasonable” amount of time after the alleged

changed circumstance. A.R. 004.

       The INA provides that “[n]o court shall have jurisdiction to review any

determination of the Attorney General” regarding the timeliness of an asylum application

or the existence vel non of changed or extraordinary circumstances justifying late filing.

8 U.S.C. § 1158(a)(2), (3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).

Although the subsequently enacted REAL ID Act amended the INA to allow

                                             3
constitutional claims or questions of law to survive its jurisdiction-stripping provisions,

see REAL ID Act § 106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D), this court has held that

claims of changed or extraordinary circumstances to justify an untimely asylum

application fall within the Attorney General’s discretion and therefore do not present a

constitutional claim or question of law covered by the REAL ID Act’s judicial review

provision. Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). We lack

jurisdiction to entertain Lin’s challenge to the BIA’s timeliness determination.

Accordingly, we dismiss Lin’s petition for review to the extent it presents this argument.

                               III. Withholding of Removal

       To qualify for withholding of removal pursuant to INA § 241(b)(3)(A) [8 U.S.C.

§ 1231(b)(3)(A)],2 Lin bore the burden of demonstrating a “clear probability” of future

persecution – that “it is more likely than not” that she would be persecuted. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 449-50 (1987). The IJ held that Lin’s evidence was

“too speculative,” A.R. 0226, 29, and the BIA affirmed the decision. A.R. 0004. We

review the BIA’s determination under the deferential substantial evidence standard. Chen

v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). Thus, “[t]o reverse the BIA finding we

must find that the evidence not only supports that conclusion [that Lin would be more



   2
     In addition, Lin applied for protection under the CAT. The BIA affirmed the IJ’s
decision that the record lacked evidence proving Lin would more likely than not be
tortured if she were to return to China. In her opening brief, Lin did not raise any issue
concerning the CAT claim, so we need not address it because it is waived. See Voci v.
Gonzales, 409 F.3d 607, 610 n.1 (3d Cir.2005).

                                              4
likely than not to suffer persecution], but compels it.” INS v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992) (emphasis in original).

         As evidence, Lin primarily relied upon the births of two United States citizen

children. See A.R. 0222, 0539-47. She also submitted a statement concerning family

members who had allegedly been forcibly sterilized and a social worker’s report

enumerating her fears. See A.R. 0222, 0548-62, 0566-69. Because these documents are

insufficient by themselves to compel a reasonable adjudicator to conclude Lin would

more likely than not be persecuted, the BIA’s ruling rests on substantial evidence.

                                   IV. Motion to Remand

         While her appeal was pending before the BIA, Lin filed a motion to remand based

upon the birth of a third child, claiming that a person from the Fujian province of China

with three United States citizen children would be subject to forced sterilization. In

support, she provided evidence including, inter alia, a 2005 State Department report and

an affidavit by demographer John Aird. The BIA denied Lin’s motion.

         Lin argues that the BIA “ignored” her motion and “a multitude of evidence

submitted with that motion,” which, she contends, “amply supported” a reasonable

likelihood of asylum eligibility under Guo v. Ashcroft, 286 F.3d 556 (3d Cir. 2004). We

review the BIA’s findings of fact for substantial evidence and the denial of the motion for

abuse of discretion. Vakker v. Atty. Gen’l of the United States, __ F.3d __, 2008 WL

681849, *2 (3d Cir. March 14, 2008); Korytnuk v. Ashcroft, 396 F.3d 272, 285 (3d Cir.

2005).

                                              5
       Lin misapplies Guo by arguing that it governs the merits of her underlying

application, which we addressed above. Guo addresses the prima facie showing

necessary to prevail on a motion to reopen or remand, not the substantive merits of an

asylum or withholding of removal claim. See Guo, 386 F.3d at 564. However, Lin’s

motion to remand does present a close issue under Guo. In Guo,3 we held that the

Government’s presentation of a five-year-old 1998 State Department report did not

undermine (and indeed supported) Guo’s prima facie showing of asylum eligibility. Guo,

386 F.3d at 565-66. Here, the BIA did not abuse its discretion by concluding that Lin

failed to make the required prima facie showing to prevail on her motion.

       The BIA considered Lin’s evidence and found that China applies coercive family

planning measures inconsistently and the more likely punishment for violation is

economic sanctions. A.R. 0006. Indeed, Lin herself noted that the 2005 State

Department Country Report refers to economic sanctions for violations of China’s

population control laws. In contrast to Guo, the BIA was not persuaded by the Aird

affidavit, id. at 004, relying upon its reasoning in Matter of C-C-, 23 I&N Dec. 899 (BIA

2006). In C-C-, which distinguished Guo, the BIA held that evidence precisely of the

type that Lin presented here – the Aird affidavit and the 2005 State Department reports –

was insufficient to establish prima facie eligibility for relief, because the recent State



   3
    Guo addressed a motion to reopen. We review motions to remand, motions to
reconsider, and motions to reopen under an identical standard. Vakker, 2008 WL
681849, *2.

                                               6
Department reports provided more persuasive evidence than the Aird affidavit. Id. at 903.

Indeed, we have held that State Department reports constitute substantial evidence. Yu v.

Atty. Gen’l of the United States, 513 F.3d 346, 349 (3d Cir. 2008).

       Given Lin’s reliance on the 2005 State Department reports, which the BIA found

to undermine the prima facie showing under C-C-, her case is distinguishable from Guo.

The BIA’s decision was not an abuse of discretion.

                                  V. Adjustment of Status

       Lin argues that the BIA committed “grave error” by acknowledging the IJ’s failure

to discuss countervailing equities and affirm the IJ’s negative exercise of discretion. The

Government counters that this issue is beyond our jurisdiction.

       The Government correctly observes that a challenge to the exercise of discretion in

denying adjustment of status falls outside the scope of our review. INA § 242(a)(2)(B)(i)

[8 U.S.C. § 1252(a)(2)(B)(i)]. Thus, we lack jurisdiction to review the IJ’s exercise of

discretion in denying Lin’s adjustment of status and the BIA’s adoption of that holding.

However, we have jurisdiction to review questions of law. INA § 242(a)(2)(D) [8 U.S.C.

§ 1252(a)(2)(D)]; Kamara v. Atty. Gen’l, 420 F.3d 202, 211 (3d Cir. 2005). To the extent

Lin argues that the BIA and IJ failed to apply the appropriate legal standard by neglecting

Lin’s favorable evidence, this is a legal question within our jurisdiction.

       However, the BIA and IJ considered Lin’s favorable evidence. The BIA affirmed

and adopted the IJ’s analysis, and in turn, the IJ recognized the necessary balancing of

both favorable and adverse factors. See A.R. 0224-25. The IJ referred to Lin’s favorable

                                              7
evidence, including, for example, the births of her two United States citizen daughters.

See A.R. 0222. However, the IJ also recognized that “[w]here adverse factors are

present, it may be necessary for the applicant to offset these by showing unusual or

outstanding equities for adjustment of status.” Id. at 0225 (citing Matter of Arai, 13 I&N

Dec. 494 (BIA 1970)). Indeed, as the negative factors weighing against the exercise of

discretion grow more serious, the alien must provide additional offsetting favorable

evidence. Matter of Edwards, 20 I&N Dec. 191, 195 (BIA 1990). As the BIA noted,

“[t]here are cases in which the adverse considerations are so serious that a favorable

exercise of discretion is not warranted even in the face of unusual or outstanding

equities.” Id. at 196.

       In denying her application, the BIA agreed with the IJ’s conclusion that Lin’s

fraudulent misrepresentations in support of her first asylum application provided “a

compelling adverse factor mitigating heavily against a favorable exercise of discretion in

her case.” A.R. 0004. In sum, the record reflects that the BIA and IJ acknowledged and

weighed Lin’s favorable evidence and did not find it sufficiently strong to overcome the

serious nature of her past fraud. Lin has not convincingly demonstrated legal error.

                             VI. Frivolous Asylum Application

       The IJ held that Lin’s admittedly fraudulent first asylum application qualified as

frivolous under INA § 208(d)(6) [8 U.S.C. § 1158(d)(6)]. Lin argued that when she filed

her first application, she did not receive adequate notice of the penalties for filing a

frivolous application as required by statute. See id. Specifically, she claimed no oral

                                               8
warnings were provided and the written warnings appearing on the application were not

translated for her. The IJ determined the written warnings were sufficient, subjecting her

to the “lifetime bar” of INA § 208(d)(6) [8 U.S.C. § 1158(d)(6)]. See A.R. 0233-34.

         On appeal to the BIA, Lin argued that the IJ erred by failing to consider that the

written warnings appeared exclusively in English and were never translated. The BIA

declined to address the argument, see A.R. 0004 n.3, and did not consider or adopt–either

explicitly or implicitly–the IJ’s holding. Lin seeks remand for adjudication of the issue.

In response, the Government argues that this Court should simply decline to consider it

because the holding has no effect on the outcome of her claims.

         The Government fails to acknowledge the severe and permanent consequences that

attach to the IJ’s unreviewed finding that Lin filed a frivolous asylum application. INA

§ 208(d)(6) [8 U.S.C. § 1158(d)(6)]; see, e.g., Muhanna v. Ashcroft, 399 F.3d 582, 588

(3d Cir. 2005). However, the Government correctly observes that we cannot review an

issue the BIA did not consider. Gonzales v. Thomas, 547 U.S. 183, 186 (2006); INS v.

Ventura, 537 U.S. 12, 17 (2002). Therefore, without expressing an opinion as to whether

the IJ properly found that Lin’s first asylum application was frivolous under INA

§ 208(d)(6) [8 U.S.C. § 1158(d)(6)], we will grant the petition for review and remand to

the BIA for consideration of the issue. See Gonzales v. Thomas, 547 U.S. 183, 186

(2006); Ventura, 537 U.S. at 16; Gabuniya v. Atty. Gen’l, 463 F.3d 316, 324 (3d Cir.

2006).



                                               9
                                      VII. Conclusion

       For the foregoing reasons, we will grant the petition for review as to whether the

Lin’s first asylum application was frivolous under INA § 208(d)(6) [8 U.S.C.

§ 1158(d)(6)] and remand to the BIA for further proceedings on that issue. We will deny

in part and dismiss in part the remainder of the petition.




                                              10
