Hong Jing Lin v. JOHN ASHCROFT, Attorney General of United States of America

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 01-2831
HONG JING LIN,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of United States of America,
Respondent
On Appeal from the Immigration and Naturalization Service
(No. A70659098)
Submitted Under Third Circuit LAR 34.1(a)
December 16, 2002
Before: SLOVITER, RENDELL, and GREENBERG, Circuit Judges
(Filed: December 18, 2002)
OPINION OF THE COURT

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SLOVITER, Circuit Judge.
Hong Jing Lin petitions for review of the final order of the Board of Immigration
Appeals (“BIA”) denying his motion to reopen his removal proceedings. The BIA upheld
the Immigration Judge’s decision to deny Lin’s motion to reopen finding that Lin failed to
establish ineffective assistance of counsel under Matter of Lozada, 19 I&N Dec. 637 (BIA
1988), and that he waived the argument that the Immigration Judge coerced him into
withdrawing his asylum application by not raising it as a direct appeal or as part of his
motion to reopen before the Immigration Judge. App. at 2.
Inasmuch as the parties are familiar with the factual and procedural background of
this case, we refer only to those facts as are pertinent to the issues under consideration.
Lin is a native and citizen of the People’s Republic of China. He and his wife have a
son who was born in China. Lin filed a request for asylum in the United States on
December 31, 1992. On April 6, 2000, he attended an asylum hearing before Immigration
Judge Henry Dogin. Lin sought asylum based on persecution on account of his political
opinion because of China’s population control program. He testified that the Chinese
Government forced his wife to have a late-term abortion. However, at the hearing, after
giving a significant amount of testimony with the aid of his counsel, Lin withdrew his
applications for asylum and withholding of removal. He requested and received a grant of
voluntary departure.
On July 3, 2000, Lin filed a motion to reopen his asylum application and removal
proceedings with the Immigration Judge. The Immigration Judge denied his motion. Lin

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then appealed the Immigration Judge’s decision to the BIA. 8 C.F.R. § 3.2. On June 11,
2001, the BIA denied his motion to reopen. The Petitioner timely filed an appeal of the
BIA’s order with this court.
I.
This court has jurisdiction to review a final order of removal by the BIA pursuant to
8 U.S.C. § 1252. We review the denial of a motion to reopen under an abuse of discretion
standard. INS v. Doherty, 502 U.S. 314, 323 (1992). The Supreme Court has stated that
“[m]otions for reopening of immigration proceedings are disfavored,” noting that “as a
general matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States.” Id. We will not disturb the BIA’s discretionary
decision unless it was “arbitrary, irrational or contrary to law.” Tipu v. INS, 20 F.3d 580,
582 (3d Cir. 1994)(citation omitted).
In Doherty, the Supreme Court reaffirmed that there are:
‘at least’ three independent grounds on which the BIA might deny a motion to reopen
– failure to establish a prima facie case for the relief sought, failure to introduce
previously unavailable, material evidence, and a determination that even if these
requirements were satisfied, the movant would not be entitled to the discretionary
grant of relief which he sought.
502 U.S. at 323 (emphasis added). Relying on this language in Doherty, Lin argues that the
BIA’s denial of his motion to reopen does not fall in any of the three categories. He
contends that he did establish a prima facie case for asylum based on China’s family
planning policy as persecution on account of political opinion. See Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, H.R. 3610, 104th Cong. § 601(a)(1)

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(1996). In addition, he argues that he sought to introduce previously unavailable, material
evidence.
Lin’s argument is not persuasive. First, the grounds set out in Doherty are
illustrative but nothing in the opinion suggests they are meant to be exhaustive. In fact, the
third independent ground listed by the Court so states, making explicit that even if the
petitioner satisfied either or both of the first two grounds, reopening is discretionary.
Doherty, 502 U.S. at 323. Therefore, even had Lin established a prima facie case for
asylum and introduced previously unavailable, material evidence, the BIA still maintained
the authority and discretion to deny his motion to reopen on other grounds.
Second, the BIA considered the issue of whether Lin introduced previously
unavailable, material evidence and accepted the Immigration Judge’s decision on the issue.
Although the Immigration Judge acknowledged that Lin presented some previously
mistranslated documents for consideration with his motion to reopen, the Immigration
Judge determined, and the BIA affirmed, that it was not material evidence because “a proper
translation would not have been any more probative” and the mistranslation was
“inconsequential.” App. at 41. Moreover, the Immigration Judge held that the evidence was
not previously unavailable because Lin had “ample time” to review the documents prior to
his asylum hearing. App. at 41. We will not disturb the BIA’s findings because they are not
arbitrary, irrational or contrary to law. Therefore, the BIA did not err by denying Lin’s
motion to reopen due to his failure to introduce previously unavailable, material evidence.
The Petitioner also argues that he was prejudiced by his attorney’s negligence and

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should be granted a new hearing based on ineffective assistance of counsel. The BIA
affirmed the dismissal of this claim because Lin failed to establish that he was prejudiced
by his attorney’s negligence and failed to satisfy the Lozada requirements on appeal. To
establish ineffective assistance of counsel, Lin had the burden to show that he filed a
complaint with a disciplinary authority. Lozada, 19 I&N at 639. However, prior to his BIA
appeal, Lin dismissed his complaint, filed with the Bar Association of New York, against
the attorney who represented him at his asylum hearing without providing an explanation for
the dismissal. App. at 4. Consequently, the BIA did not err by denying his motion to
reopen his asylum proceedings based on an ineffective assistance of counsel claim.
Finally, Lin argues that the BIA erred because it failed to consider his coercion
claim. He contends that he did not voluntarily withdraw his requests for asylum and
withholding of removal. Rather, Lin states that the Immigration Judge coerced him to
withdraw his asylum application by making threats that if he did not abandon the claim the
Judge would have Lin immediately handcuffed, detained and deported. Lin argues that the
BIA failed to consider this evidence because it deemed that he had waived the claim.
The BIA held that Lin waived the coercion claim by raising it for the first time
before the BIA. App. at 2. It ruled that Lin’s “contention should have been raised as either a
direct appeal of the Immigration Judge’s April 6, 2000 [order in Lin’s removal proceeding]
or part of the motion to reopen.” App. at 2. Lin had failed to include his coercion claim in
his motion to reopen before the Immigration Judge where he limited his motion to
ineffective assistance of counsel. App. at 47. Although Lin argues that the BIA cannot find

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that a claim has been waived if a party fails to raise it before the Immigration Judge, he fails
to provide any support for that argument.
In any event, Lin’s coercion claim is without merit. Lin’s own counsel initiated the
withdrawal of his asylum application and withholding of removal request. Moreover, the
Immigration Judge repeatedly asked Lin whether the withdrawal of his claims was voluntary
to which Lin responded in the affirmative. App. at 40-41. Thus, the BIA’s decision was not
arbitrary, irrational, or contrary to law.
II.
For the reasons discussed above, we will affirm the BIA’s order of June 11, 2001
denying Lin’s motion to reopen his removal proceedings.
________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/Dolores K. Sloviter
Circuit Judge

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