Filed: Jun. 24, 2011
Latest Update: Feb. 21, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-1082 _ JUN CHEN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On a Petition For Review of an Order of the Board of Immigration Appeals (Agency No. A077-994-087) Immigration Judge: Charles M. Honeyman _ Submitted Pursuant to Third Circuit LAR 34.1(a) June 22, 2011 Before: SLOVITER, CHAGARES and WEIS, Circuit Judges (Opinion filed: June 24, 2011) _ OPINION _ PER CURIAM. Jun Chen (“Chen”) petitions f
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-1082 _ JUN CHEN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On a Petition For Review of an Order of the Board of Immigration Appeals (Agency No. A077-994-087) Immigration Judge: Charles M. Honeyman _ Submitted Pursuant to Third Circuit LAR 34.1(a) June 22, 2011 Before: SLOVITER, CHAGARES and WEIS, Circuit Judges (Opinion filed: June 24, 2011) _ OPINION _ PER CURIAM. Jun Chen (“Chen”) petitions fo..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-1082
____________
JUN CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A077-994-087)
Immigration Judge: Charles M. Honeyman
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 22, 2011
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: June 24, 2011)
____________
OPINION
____________
PER CURIAM.
Jun Chen (“Chen”) petitions for review of the Board of Immigration
Appeals’ final order of removal. For the reasons that follow, we will deny the petition for
review.
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Chen, a native and citizen of China, arrived at Los Angeles International
Airport on November 11, 2001 without a valid entry document. Thereafter, the
Department of Homeland Security issued a Notice to Appear, charging that she was
removable under Immigration & Nationality Act (“INA”) § 212(a)(7)(A)(i)(1), 8 U.S.C.
§ 1182(a)(7)(A)(i)(1), as an alien who was inadmissible at the time of entry. Chen
applied for asylum and withholding of removal under the INA, and protection under the
Convention Against Torture, claiming persecution by the Chinese government on account
of her practice of, and participation in, Falun Gong.
At her merits hearing on January 15, 2003, Chen testified that she lost her
job in a shoe factory, and was sought by police in China for distributing Falun Gong
material and practicing Falun Gong. She feared that she would be arrested, fined, and
imprisoned if she returns to China. On that same day, the Immigration Judge denied
relief, finding that Chen’s claim of persecution was not credible. The IJ relied upon
certain inconsistencies between Chen’s asylum application and her testimony in finding
her claim not credible. The IJ ordered Chen removed to China. On January 8, 2004, the
Board of Immigration Appeals affirmed without opinion, 8 C.F.R. § 1003.1(e)(4). Chen
did not petition for review of this decision.
On April 19, 2010, more than six years later, Chen filed a motion to reopen
and an amended asylum application, arguing that her motion should not be barred by the
90-day deadline because she could demonstrate changed country conditions in China
with respect to its treatment of Falun Gong practitioners. She asserted that she had begun
to practice Falun Gong in the United States in March, 2008. She distributed Falun Gong
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materials in Flushing, New York, and participated in demonstrations there opposing the
Chinese government. Certain Chinese residents in America, who came from her home
town, discovered her involvement in Falun Gong, and, when they returned to China,
spread word of her activities. Chen claimed that, on March 10, 2010, government cadres
confronted her parents about her Falun Gong activities in the United States. The cadres
told Chen’s parents that she must renounce Falun Gong and return to China to “accept
stringent punishment.” A.R. 65. Chen also sought reconsideration of the IJ’s adverse
credibility determination.
Chen submitted evidence in support of her motion to reopen, including an
affidavit from her father, in which he explained his and his wife’s participation in Falun
Gong in China and Chen’s participation in distributing flyers; a statement from the
village committee that it is aware that Chen has continued to practice Falun Gong in the
United States and urging her to come back to China for severe punishment; the May 2007
Profile of Asylum Claims and Country Conditions for China; articles relating to assaults
on Falun Gong practitioners by Chinese immigrants in Flushing, New York; and
photographs of her in the United States in which she is striking Falun Gong poses and
participating in a demonstration in Flushing. The Department of Homeland Security
opposed Chen’s motion to reopen.
On December 22, 2010, the Board denied the motion to reopen as untimely
filed. First, to the extent that Chen sought reconsideration of the IJ’s adverse credibility
determination, the Board held that her motion was untimely because it was not filed
within 30 days of the Board’s January 8, 2004 decision. 8 C.F.R. § 1003.2(b)(2) (“A
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motion to reconsider a decision must be filed with the Board within 30 days after the
mailing of the Board decision....”). Accordingly, the Board declined to revisit the
credibility finding. The Board then noted that Chen was advancing a claim that was
related to her prior claim for asylum, making that prior adverse credibility finding
relevant to her motion to reopen. But, the Board concluded, even without consideration
of the prior adverse credibility finding, that Chen’s evidence did not establish worsened
conditions in China such that she merited reopening outside of the 90-day deadline for
filing motions to reopen, 8 U.S.C. § 1229a(c)(7)(C)(ii). The 2007 Profile did not show
that Chen will face more severe sanctions for practicing Falun Gong now than she would
have faced at the time of her merits hearing in 2003. “Further, even accepting at face
value the village notice and her father’s affidavit showing that her activities in the United
States have been discovered, neither document establishes that her village has recently
instituted or increased penalties for practicing Falun Gong so that the threatened ‘severe
penalties’ are any different from those faced by Falun Gong practitioners in the past.”
A.R. 4. Nor did the articles about the events in New York support her claim of a change
in conditions in China.
Chen has timely petitioned for review of the Board’s decision denying her
motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). In her brief,
she contends that the Board abused its discretion with respect to its finding that she did
not show changed country conditions, because it failed to take into consideration that she
has engaged in more serious anti-government activity since her 2003 hearing; she is thus
facing a greater risk of harm than at the time of her 2003 hearing. See Petitioners’ Brief,
4
at 11-12. Moreover, she offered evidence that she personally would face punishment for
her Falun Gong activities in the United States which the Board did not sufficiently credit.
See Petitioners’ Brief, at 14. 1
We will deny the petition for review. We review the Board’s denial of a
motion to reopen for an abuse of discretion. Immigration & Naturalization Serv. v.
Doherty, 502 U.S. 314, 323 (1992). Under this deferential standard, we will reverse the
Board’s decision only if it is arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002). We uphold the Board’s factual determinations
underlying the denial of the motion to reopen if they are "supported by reasonable,
substantial, and probative evidence on the record considered as a whole." Zheng v. Att’y
Gen. of U.S.,
549 F.3d 260, 266 (quoting Immigration & Naturalization Serv. v. Elias-
Zacarias,
502 U.S. 478, 481 (1992)).
A motion to reopen before the Board must be filed “no later than 90 days
after the date on which the final administrative decision was rendered in the proceeding
sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). An exception to the timeliness
requirement exists to apply for asylum based on “changed conditions arising in the
country of nationality or the country to which removal has been ordered, if such evidence
1
Chen also argues that the Board’s decision should be reversed because it did not include
a threshold finding of “materialness and previous unavailability” of her documents. See
Petitioner’s Brief, at 13-14. This argument is completely lacking in merit. The Board
evaluated the substance of Chen’s documents, accepting them at face value and reaching
the issue of whether the documents showed that conditions had changed in China. The
Board was not further obligated to discuss bases on which it did not rely in denying
Chen’s motion to reopen.
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is material and was not available and would not have been discovered or presented at the
previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Because Chen’s motion to reopen was not filed within the required 90 days,
it had to be based on changed country conditions in China with respect to the Chinese
government’s treatment of Falun Gong practitioners. The Board did not abuse its
discretion in denying her untimely motion to reopen. The Board fully considered Chen’s
evidence, and its determination that she failed to show changed country conditions is
supported by substantial evidence in the record. Zheng, 549 F.3d at 266. Chen argued in
her motion that she would be arrested and punished if she returns to China, but her
evidence failed to show a material change in conditions in China since 2003, just as the
Board concluded. The 2007 Profile does not show that Chen will face more severe
sanctions for practicing Falun Gong now than she would have faced at the time of her
merits hearing in 2003. The Chinese government labeled Falun Gong a cult in 1999, and,
in 2001, launched a massive campaign against it. The punishment and detention of Falun
Gong practitioners continued in 2005 and 2006, but the report does not state that it
worsened. A.R. 143-45. Instead, China’s response to Falun Gong has remained constant.
In addition, Chen’s father’s affidavit and the village committee’s statement
concern a threatened punishment – arrest and imprisonment -- that is not worse than what
Chen would have faced at the time of her merits hearing in 2003. The news articles about
activities in the United States do not demonstrate worsened conditions in China for Falun
Gong practitioners, and Chen’s new activities in Flushing do not constitute evidence of
changed conditions in China, see Liu v. Att’y Gen. of U.S., 555 F.3d 145, 150-51 (3d Cir.
6
2009). A change in personal circumstances is insufficient to excuse an alien from the
time limit on a motion to reopen. See id. An alien may file a successive asylum
application based on changed personal circumstances under 8 U.S.C. § 1158(a)(2)(D) or
changed country conditions at any time during proceedings before the entry of a final
order of removal, or within the 90-day deadline for a motion to reopen. Outside of those
circumstances, changed country conditions under 8 U.S.C. § 1229a(c)(7)(C)(ii) must be
shown.
Liu, 555 F.3d at 150-52.
For the foregoing reasons, we will deny the petition for review.
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