Xing Lin v. U.S. Attorney General

298 F. App'x 865
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 31, 2008
Docket08-10388
StatusUnpublished

This text of 298 F. App'x 865 (Xing Lin v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Xing Lin v. U.S. Attorney General, 298 F. App'x 865 (11th Cir. 2008).

Opinion

PER CURIAM:

Xing Lin, a native and citizen of China, petitions us for review of the Board of Immigrations Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) removal order and denial of asylum, withholding of removal under the Immigration and Nationality Act (“INA”) 1 and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). The BIA concluded that Lin’s testimony was not credible and that he had failed to establish eligibility for the requested forms of relief. Because Lin’s only claims before the BIA concerned the IJ’s denial of his asylum application and a motion to remand, we lack jurisdiction to consider his arguments for withholding of removal and CAT relief. Accordingly, we DISMISS Lin’s petitions for withholding of removal and CAT relief and DENY Lin’s petition for asylum.

I. BACKGROUND

A. Lin’s 2001 Asylum Application

Lin is a native and citizen of the People’s Republic of China who entered the United States through Los Angeles in 1990. Administrative Record at 817. Because he lacked a valid entry document, he was briefly detained and ordered to appear at a hearing before an IJ to determine his immigration status. Id. at 1509-10. Lin failed to appear for the hearing and was ordered removed in absentia in 1991. Id. at 1394-95. In 2000, Lin filed a motion to reopen the proceedings, alleging that he did not receive notice of the 1991 hearing. Id. at 1386-87. The IJ granted the motion to reopen, and a new hearing date was set. Id. at 1380.

In February 2001, Lin filed an application for cancellation of removal, seeking asylum, withholding of removal, and relief under CAT. Id. at 1117-34. He claimed that he would be persecuted in China under the country’s birth control policy. Id. at 1130. Lin attached an affidavit to his application in which he provided a brief *867 personal narrative. Id. at 1137. Lin stated that he was born and previously resided in Fujian Province, China, and that he married his wife, Bi Xian Zheng (“Zheng”), in 1988. He registered his marriage with the government in 1989. After her first child was born, Zheng was forced to have an intrauterine device (“IUD”) implanted by Chinese family planning officials. She later had the device removed by a private physician due to pain and discomfort. Soon thereafter, Zheng became pregnant with the couple’s second child. Lin stated that he left China for the United States in October 1990, shortly after his wife became pregnant. Id.

Mindful that her second pregnancy was in violation of China’s birth control policy, Zheng went into hiding from family planning officials. Government officials soon learned of the pregnancy and arrested Lin’s mother when she refused to divulge Zheng’s location. Zheng gave birth to the child in secret and a large fine was imposed on her for violating China’s family planning laws. Id.

Lin stated that he divorced Zheng in 1994. Four years later, he reconciled with her after she arrived in the United States with her son. Lin and Zheng then had a third child together in the United States. Lin stated that, if forced to return to China, he or his wife would be sterilized, and they wanted to have more children. Id.

Lin attached a copy of an article by Dr. John Aird, an expert on China’s family planning laws, to his February 2001 affidavit. Id. at 1232-48. The article described the coercive aspects of China’s one-child policy and concluded that China maintained its coercive birth control tactics despite stories to the contrary. Id. at 1235-48. Also attached was a transcript from a 1998 Nightline television broadcast in which former Chinese officials and China experts discussed forced sterilizations and abortions in the country. Id. at 1249-57.

1. Lin’s 2003 Supplement

In May 2003, Lin supplemented his application and included the asylum applications of his wife and son. Id. at 817-37. He also filed a supplemental affidavit in which he largely reiterated his previous statements. Id. at 840-43. Lin did state for the first time in his supplemental affidavit that his wife was forced to undergo an abortion in China when she became pregnant after the couple’s first child. Id. at 840. Lin also explained that his wife was forced to pay three separate fines after their second child was born: one to obtain her mother-in-law’s release from custody, one to pay for the second child’s registration with the government, and one for her refusal to identify the doctor who delivered their second child. Id. at 842.

Lin’s supplemental asylum application also included an affidavit from Zheng which largely matched Lin’s statements regarding their dealings with family planning officials in China. Id. at 848-51. In addition, Lin included a note from his son that stated that he would experience hardships if he and his family were forced to return to China as he does not read or write Chinese characters. Id. at 858-60. Finally, Lin attached several documents to his supplemental affidavit, including a “Planned Birth Control Operation Certificate” from a Chinese hospital which indicated that Zheng had a midterm induced abortion. Id. at 910.

2. Department of Homeland Security (“DHS”) Documents

In response, DHS filed the following documents related to Zheng’s immigration proceedings: (1) Zheng’s asylum application; (2) the transcript from Zheng’s asylum hearing; (3) a DHS forensic report; *868 and (4) the 2004 State Department Country Report. Id. at 696-1434.

a. IJ’s Decision Regarding Zheng’s Asylum Application

In her asylum application, Zheng contended that she was forced to have an abortion and was forced to submit a bond to ensure her return for sterilization in the future. Id. at 706-07. The IJ denied Zheng’s application for asylum, withholding of removal, and CAT relief, finding that her testimony was not credible because her claim to a forced abortion was contradicted by a State Department Report that indicated certificates of abortion were only issued if the abortion was voluntary. Id. at 724-25. The IJ also noted that the State Department indicated that there were no forced abortions in the Fuji-an province and that birth control laws were not aggressively enforced there. Id. at 725-26. The IJ also questioned the authenticity of the documentary evidence submitted. Id. at 728-29. The IJ further found that Zheng failed to establish past persecution or a well-founded fear of future persecution. Id. at 728-30.

b. Zheng’s Asylum Hearing Transcript

Also included in the government documentation was the transcript from Zheng’s January 2000 asylum hearing. Id. at 738-814.

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Bluebook (online)
298 F. App'x 865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xing-lin-v-us-attorney-general-ca11-2008.