                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               APRIL 4, 2012
                               No. 11-13719
                           Non-Argument Calendar                JOHN LEY
                                                                 CLERK
                         ________________________

                           Agency No. A099-936-386


XING CHEN,
YU CHAI LIN,
                                                                     Petitioners,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.
                         ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          ________________________
                                  (April 4, 2012)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

      Xing Chen and Yu Chai Lin, natives and citizens of China, seek review of

the Board of Immigration Appeals’s (“BIA”) order denying their motion to reopen
their proceedings following the Immigration Judge’s (“IJ”) denial of asylum

pursuant to the Immigration and Nationality Act (“INA”) § 208(a), 8 U.S.C.

§ 1158(a), and withholding of removal under INA § 241(b)(3), 8 U.S.C.

§ 1231(b)(3). After review, we affirm.

                                  I. BACKGROUND

A. Asylum Applications

      On January 5, 1999, Chen entered the United States at the Canadian border.

In 2000, Lin entered the United States. In October 2006, Chen married Lin, and

their first son, Kevin, was born on September 1, 2006. Lin soon became pregnant

with the couple’s second child.

      In March 2007, Chen and Lin applied for asylum. In his application, Chen

stated that he feared returning to China because the Chinese government would

force Lin to abort their second child. If they returned to China after their second

child was born, they would be fined and either Chen or Lin would be forcibly

sterilized by the government. In her application, Lin likewise sought asylum

based on political opinion because she feared being forced to abort her second

child or being forcibly sterilized by the government.

      In support of their applications, Chen and Lin submitted many news articles

and transcripts of congressional hearings regarding China’s one-child policy;

                                          2
affidavits from other Chinese citizens who had been forcibly sterilized; fine

schedules for violating the one-child policy in various regions; certificates from a

number of villages in China indicating that their family planning policies required

insertion of an intrauterine device after one child and sterilization of one parent

after a second child; letters and identification documents from family and friends

regarding forced sterilizations in China; and personal documents such as birth

certificates, travel documents, passports, and family photos.

      They also submitted several State Department reports on China and its

human-rights practices, including one report titled, “China: Profile of Asylum

Claims and Country Conditions” (“2007 Profile”). The 2007 Profile stated that

China’s birth planning policies retained “harshly coercive elements.” Although

the central government prohibited physical coercion to undergo sterilization, there

were “continuing reports of physical coercion to meet birth targets in some areas.”

Further, “U.S. officials in China are not aware of the alleged official policy, at the

national or provincial levels, mandating the sterilization of one partner of couples

that have given birth to two children, at least one of whom was born abroad.”

According to the 2007 Profile, the Fujian Provincial Birth Planning Committee

(“FPBPC”) claimed there were no forced sterilizations in the province within the

last ten years, but it was “impossible to confirm this claim, and, in 2006,

                                           3
reportedly, there were forced sterilizations in Fujian.” Finally, the 2007 Profile

noted that documents from China, and particularly from Fujian Province, were

“subject to widespread fabrication and fraud.”

      At the merits hearing, Lin testified that she was born in Kefu Village, Tan

Tou Town, Fujian Province, China. Lin filed for asylum in 2007 because she had

violated China’s one-child policy by having two children. She and her husband

came from agricultural families. If they returned to China, they would live with

her husband’s family in Kuei Qi Village, Ma Wei District, in Fujian Province and

would register their children in the household registry system. If they did not

register the children, they would pay a fine and face criminal charges. Lin learned

about China’s one-child policy because some of her relatives and some of Chen’s

relatives were sterilized. Lin testified that, if she and her family returned to China,

either Lin or Chen would be forcibly sterilized and they would be arrested if they

did not pay the fine for having a second child. Lin did not want to be sterilized.

B. IJ’s and BIA’s Decisions

      The IJ denied Chen’s and Lin’s asylum applications. After considering the

background evidence and Lin’s testimony, the IJ determined that Chen and Lin

had not provided sufficient evidence to show that they had a well-founded fear of

future persecution. The IJ considered the 2007 Profile, noting that it contradicted

                                           4
some of Chen’s and Lin’s assertions. For example, although local enforcement

and regulations varied, the policies were more strictly adhered to in cities than in

rural areas, and Chen and Lin were from a rural area. The IJ also cited to the 2007

Profile in concluding that forced sterilizations and forced abortions were

prohibited, and according to the FPBPC, there had not been a forced sterilization

in Fujian Province in the past ten years. The IJ found the State Department reports

more persuasive than the evidence Chen and Lin provided. Accordingly, the IJ

denied asylum and withholding of removal and ordered Chen and Lin removed to

China.

      Chen and Lin appealed to the BIA, which dismissed the appeal. The BIA

concluded that the IJ properly considered the evidence, as shown by the “lengthy

discussion of the evidence in his decision.” The BIA agreed with the IJ that Chen

and Lin had not shown that they were eligible for asylum because they did not

show that the one-child policy was being enforced in their home region “or that

such enforcement efforts would give rise to a well-founded fear of future

persecution due to a violation.” The BIA considered Chen’s and Lin’s

evidence—including two of the villagers’ committee certificates, as well as the

evidence discussed in the BIA’s published cases—determining that there was “no

uniform policy regarding the implementation of the population control law with

                                          5
respect to children born outside of China.” The BIA also affirmed the IJ’s

conclusion that “while some individuals may be subject to economic penalties or

sanctions for such births, the [evidence in this case did] not establish penalties or

sanctions rising to the level of persecution.”

      Chen and Lin petitioned for review. Denying the petition, this Court held

that substantial evidence supported the IJ’s and BIA’s determination that Chen and

Lin did not have an objectively reasonable well-founded fear of forced

sterilization or persecutory fines. Chen v. U.S. Att’y Gen., 426 F. App’x 717

(11th Cir. 2011).

C. Motion to Reopen

      On December 23, 2010, while their petition was pending before this Court,

Chen and Lin timely moved before the BIA to reopen the proceedings to submit

new evidence on their one-child-policy claim and to present a new claim for relief

based on Lin’s practice of Falun Gong. They requested that the case be remanded

to an IJ for reconsideration.

      In support of their motion, Chen and Lin submitted an affidavit in which Lin

attested that, in March 2010, Lin began practicing Falun Gong due to her health.

Lin always felt tired after long hours of working in a restaurant and had leg pain

due to standing all day at work. Lin mostly practiced Falun Gong at home, but

                                           6
sometimes she practiced at the park “to get a better result.” After having practiced

Falun Gong for a few months, Lin felt less tired, suffered less pain in her legs, and

decided to continue practicing Falun Gong in the future. Lin attested that she

would be detained, beaten, interrogated, and fined by the Chinese government,

which prohibited the practice of Falun Gong. Lin and Chen also feared that one of

them would be sterilized if they returned to China, because they had two children

(although both children were born in the United States). They feared being fined

for their second child. Because they had no means to pay a fine, they feared their

home would be destroyed or they would face other severe punishment.

      Chen and Lin also submitted, inter alia: (1) the State Department’s

“International Religious Freedom Report 2007,” which stated that the Chinese

government designated Falun Gong as a “cult” and repressed the practice of Falun

Gong through arrest, detention, imprisonment, and sometimes torture and abuse,

although leaders typically received harsher punishment than practitioners;

(2) several news articles, a book chapter, and a 2006 congressional report on Falun

Gong; (3) a review and evaluation of the 2007 Profile by Dr. Flora Sapio, a guest

lecturer of Contemporary Chinese Studies at a German university, which review

purported to assess the thoroughness, accuracy, and reliability of the 2007 Profile

that Chen and Lin submitted with their original asylum application; (4) documents

                                          7
from a hearing before Congress’s Tom Lantos Human Rights Commission (“Tom

Lantos Commission Report”) in November 2009, during which several

organizations and witnesses provided testimony regarding 16 cases of coercive

family planning, such as Chinese officials forcing women to have abortions and

even forcibly inducing labor and killing the baby upon delivery; (5) a portion of

the 2009 Annual Report of the Congressional-Executive Commission on China

(“2009 Congressional-Executive Commission Report”), which indicated that

China “continued” to enforce a policy that interfered with women’s reproductive

rights, that forced abortion was an “official policy instrument” in Fujian Province,

and that, in February 2009, officials within Fujian Province initiated a five-week

campaign of heightened enforcement, using forced abortions; (6) a copy of Zheng

v. Holder, 361 F. App’x 184 (2d Cir. 2010), an unpublished Second Circuit

decision involving an asylum claim for a Chinese petitioner that, like Chen and

Lin, also gave birth to two children while in the United States; (7) an affidavit

from Renzun Yuan, a resident of Qinchuan Village in Fujian, who stated that,

upon his return to China in 2008, he was forcibly sterilized because he had two

American-born children; and (8) five news articles published in 2009 and 2010

documenting sterilization campaigns in Guangdong Province, during which




                                          8
government officials detained elderly relatives to persuade their family members

to be sterilized.

       The BIA denied the motion to reopen.1 As to Chen’s and Lin’s renewed

claim of persecution under China’s one-child policy, the BIA determined that the

majority of their evidence was new and previously unavailable. However, the BIA

determined that the evidence was insufficient to establish Chen’s and Lin’s prima

facie eligibility for asylum. The BIA considered Dr. Sapio’s critique of the 2007

Profile, but gave more weight to the reliability of the Profile because Dr. Sapio’s

article was not based on personal knowledge, only conjectured regarding the

motivations of the State Department, and speculatively challenged the validity of

the State Department’s sources. The BIA noted that (1) in their initial application

Chen and Lin relied on the 2007 Profile and (2) they had waived an opportunity to

object to the use of the 2007 Profile at the merits hearing before the IJ. The BIA

also determined that Dr. Sapio’s report exhibited an unfavorable bias against the

State Department and other government agencies.

       As to the Tom Lantos Commission Report, although it contained anecdotal

evidence, this evidence did not convince the BIA that it had “erred in finding that



       1
         The BIA issued two separate orders on the motion to reopen, one for Chen and one for
Lin, although the text of each order is materially the same.

                                               9
there [was] no country-wide campaign by Chinese authorities to forcibly sterilize

parents returning to China with a second child born abroad.” As to the 2009

Congressional-Executive Commission Report, the BIA noted that Chen and Lin

submitted only 10 pages of the 300-page report and that the submitted portion of

the report discussed occurrences in a province other than Fujian, where Chen and

Lin would return.

      The BIA also found that the Second Circuit unpublished decision, cited in

the motion to reopen, had no precedential value, and, further, was distinguishable

on the facts. As to the affidavit from Yuan, the BIA noted that the affidavit was

not notarized, such that the BIA could not be certain of Yuan’s identity or the

reliability of the affidavit. Further, the BIA noted that the affidavit may have been

prepared for the purposes of litigation, and that Chen and Lin did not explain how

they came into possession of Yuan’s affidavit. The BIA also determined that the

submitted news articles did not discuss conditions in Fujian Province, such that

the articles did not support Chen and Lin’s claim. Thus, the BIA determined that

Chen’s and Lin’s new evidence did not establish grounds to reopen their case.

      As to Lin’s claim based on her recent commitment to Falun Gong, the BIA

concluded that Lin had not shown prima facie eligibility for relief. The BIA

determined that Lin had not provided any evidence to suggest that the government

                                         10
was aware or could become aware of her Falun Gong practice, or that the

government had the inclination to persecute her on account of this practice. The

BIA noted that, although Lin submitted a few news articles regarding the

mistreatment of Falun Gong practitioners in China, the most recent was dated in

2008, such that Lin did not provide information about current conditions in China

for Falun Gong practitioners. The BIA concluded that Lin had not met her heavy

burden of establishing eligibility for asylum. Thus, the BIA denied Chen and

Lin’s motion to reopen as to the Falun Gong claim.

                                   II. DISCUSSION

      A party may file only one motion to reopen removal proceedings, and that

motion “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 U.S.C. § 1229a(c)(7)(A), (B); 8 C.F.R. § 1003.23(b)(3). The BIA

may deny a motion to reopen based on any of the following grounds: “1) failure to

establish a prima facie case; 2) failure to introduce evidence that was material and

previously unavailable; and 3) a determination that despite the alien’s statutory

eligibility for relief, he or she is not entitled to a favorable exercise of discretion.”

Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001); see also 8 C.F.R.




                                            11
§ 1003.2(a) (providing that the BIA may deny a motion to reopen even if the alien

establishes a prima facie case for relief).

      We review for abuse of discretion the denial of a motion to reopen removal

proceedings. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).

The moving party bears a “heavy burden,” and judicial review “is limited to

determining whether the BIA exercised its discretion in an arbitrary or capricious

manner.” Id. Because of the “heavy burden,” the movant must show that, if

proceedings were reopened, “the new evidence would likely change the result in

the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256–57 (11th Cir. 2009).

A. One-Child-Policy Claim

      Chen and Lin argue that the BIA abused its discretion in denying their

motion to reopen because they presented additional evidence to establish prima

facie eligibility for asylum based on China’s one-child policy.

      We acknowledge that evidence of a recent increased campaign of forced

sterilization in the alien’s home village may warrant reopening of immigration

proceedings. See, e.g., Jiang, 568 F.3d at 1254; Li v. U.S. Att’y Gen., 488 F.3d

1371, 1375 (11th Cir. 2007). Here, however, the BIA did not abuse its discretion

in denying Chen and Lin’s motion to reopen. Much of the evidence Chen and Lin




                                              12
submitted was unauthenticated and incomplete, and none of the evidence showed a

recent campaign of forced sterilization in their home village.

      Additionally, the BIA did not abuse its discretion by rejecting Dr. Sapio’s

critique of the 2007 Profile because the BIA was entitled to rely on the State

Department reports. See Reyes–Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243

(11th Cir. 2004). We note that Dr. Sapio concedes in her report that “[t]here is no

univocal consensus on whether forced abortions and sterilizations are still used to

implement the family planning policy. Widely different opinions exist. All of

them rest of the available evidence, which is neither conclusive nor

comprehensive.” Given the other evidence in the record, we cannot say that the

BIA abused its discretion in concluding that the new evidence was unlikely to

change the outcome of the proceedings.

B. Falun Gong Claim

      Lin argues that the BIA abused its discretion in denying her motion to

reopen as to her Falun Gong asylum claim because she presented evidence that she

practices Falun Gong and that Falun Gong practitioners are persecuted in China.

      Here, the BIA did not abuse its discretion by concluding that Lin’s new

Falun Gong evidence did not establish prima facie eligibility for asylum. Lin

presented no evidence that the Chinese government is aware that she practices

                                         13
Falun Gong. Thus, it is unclear from the record whether Lin would be singled out

for mistreatment if she returns to China.

      Furthermore, even if Chinese authorities learned of Lin’s practice of Falun

Gong, it is not clear whether any response would rise to the level of persecution.

This Court has concluded that “[i]nvolvement with Falun Gong in China by itself

does not entitle a person to asylum in the United States.” Zheng v. U.S. Att’y

Gen., 451 F.3d 1287, 1292 (11th Cir. 2006). And Lin states that she is a

practitioner of Falun Gong, not a leader, and her own evidence shows that the

government reserves the harshest punishment for the movement’s leaders. Finally,

although Lin submitted several news articles discussing mistreatment of Falun

Gong practitioners in China, the most recent of these articles was published in

2008. Thus, Lin failed to present any current evidence of persecution of Falun

Gong practitioners, and she failed to present any evidence that she would be

specifically targeted for persecution.

      PETITION DENIED.




                                            14
BARKETT, Circuit Judge, specially concurring:

      I concur in the majority opinion’s result only because I believe that the

Board of Immigration Appeals did not abuse its discretion in denying the

Petitioners’ motion to reopen.




                                         15
