Filed: Mar. 06, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-6-2008 Chen v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-4312 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Chen v. Atty Gen USA" (2008). 2008 Decisions. Paper 1471. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1471 This decision is brought to you for free and open access by the Opinions of th
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-6-2008 Chen v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-4312 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Chen v. Atty Gen USA" (2008). 2008 Decisions. Paper 1471. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1471 This decision is brought to you for free and open access by the Opinions of the..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-6-2008
Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4312
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Chen v. Atty Gen USA" (2008). 2008 Decisions. Paper 1471.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1471
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-4312
SAI ZHU CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from the Board of Immigration Appeals,
BIA No. A70-897-099
Immigration Judge: The Honorable Charles Honeyman
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 14, 2008
Before: SLOVITER, and SMITH, Circuit Judges,
DIAMOND, District Judge *
(Filed: March 6, 2008)
OPINION
SMITH, Circuit Judge:
*
The Honorable Gustave Diamond, Senior District Judge for the United States District
Court for the Western District of Pennsylvania, sitting by designation.
Sai Zhu Chen (“Chen”) seeks review of an order issued by the Board of
Immigration Appeals (“BIA”) on September 5, 2006, which adopted and affirmed the
decision of the Immigration Judge (“IJ”) denying Chen’s motion to reopen her
deportation proceedings and reinstate her asylum application.1 Chen entered the United
States in April 1993 and in her request for asylum, she indicated that the Chinese
government had persecuted her because she had refused to submit to sterilization
procedures after twice submitting to the insertion of an intrauterine device (“IUD”). She
claimed that she was first subjected to the insertion of an IUD in 1979 following the birth
of her second child.2 Nonetheless, she claimed the IUD fell out and that she became
pregnant again, delivering a daughter in 1981. After this delivery, Chen was subjected to
yet another procedure to have the IUD replaced. She stated in her amended asylum
application 3 that she was forced to put her third child up for adoption in 1981 because the
baby could not be placed on her household register. Prior to fleeing from China in 1993,
Chen believed the Chinese Government was preparing to have her sterilized.
1
The BIA had jurisdiction over Chen’s motion to reconsider pursuant to 8 C.F.R. §
1003.2. We have appellate jurisdiction over the BIA’s denial of the motion to reopen
because it is a final order of removal for purposes of 8 U.S.C. § 1252. Sevoian v.
Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).
2
Chen was born in Changle City, Fujian Province on March 21, 1953. She and her
first husband, who died, have three children in China; two sons were born in 1975 and
1977 respectively, and a daughter was born in 1981.
3
In her initial 1993 asylum application, Chen stated that officials had removed
furniture from her home and warned her to have surgery. Chen did not assert that an IUD
was forcibly inserted until she amended her asylum application in 1996.
2
In January 1997, Chen was served with an Order to Show Cause charging that she
was subject to deportation because she entered the United States as an alien without
inspection. 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present in the United States without
being admitted or paroled, or who arrives in the United States at any time or place other
than as designated by the Attorney General, is inadmissible.”). In August 2001, Chen
married George Chen (“George”), a United States citizen. The marriage prompted
George to file a visa petition on her behalf, which allowed Chen to proceed with a
consular process. After initially filing a motion to adjourn her deportation proceedings
which was granted in February 2004, Chen filed another motion to adjourn removal
proceedings and stated: “Even if unable to obtain third country processing prior to her
individual hearing . . . she agree[s] to accept voluntary departure before this Court due to
the likelihood of success, as she can demonstrate a bona fide marriage to a U.S. citizen.”
On April 12, 2005, the IJ withdrew Chen’s application for asylum and granted her request
for a voluntary departure within a year. However, Chen subsequently filed a motion to
reopen deportation proceedings for reinstatement of her asylum application in March
2006. She divorced her husband, a U.S. citizen, in January 2006. Chen requested that the
IJ reinstate and reopen her case to pursue asylum based on “the birth control related
persecution that she suffered in China.”
On April 17, 2006, the IJ denied Chen’s motion to reopen. The IJ determined that
her second marriage to a U.S. citizen that ended in divorce was insufficient to justify
3
reopening the proceedings and, furthermore, that Chen’s age, marital status, and three
adult children dictated that the possibility of a forced sterilization was “both remote and
speculative at this point in time.” Chen filed an appeal of the IJ’s denial to the BIA. The
BIA dismissed Chen’s appeal. It concluded that the IJ had appropriately found that she
had not demonstrated a well-founded fear of future persecution. The BIA further
explained that it was not persuaded that Chen was either “prima facie eligible for asylum
based on past forcible insertion” of an IUD, or that forcible insertion of an IUD was “in
the same category as a forcible abortion or forced sterilization.” It recognized that some
Courts of Appeals had considered the issue of whether forcible insertion of IUDs
constituted persecution under 8 C.F.R. § 1101(a)(42), but noted that the Third Circuit had
yet to address the issue.
This timely petition for review followed. Because the BIA adopted and affirmed
the IJ’s denial of the motion to reopen, and set forth its own brief rationale, we review the
decisions of both the BIA and the IJ. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
We review any findings of fact for substantial evidence and the ultimate denial for an
abuse of discretion. See Korytnyuk v. Ashcroft,
396 F.3d 272, 280 (3d Cir. 2005). An
abuse of discretion will be found if the denial of a motion to reopen “is arbitrary,
irrational, or contrary to law.” Filja v. Gonzales,
447 F.3d 241, 251 (3d Cir. 2006). We
are mindful that motions to reopen are generally disfavored. Abudu v. INS,
485 U.S. 94,
107 (1988).
4
Chen argues that the BIA abused its discretion by affirming the denial of her
motion to reopen. She asserts that the IJ’s finding that she did not establish that she had a
well founded fear of future persecution was nothing more than speculation and
conjecture. Because there is nothing of record to contradict her claim that the IUDs she
had were forcibly inserted, she contends there is no support for the BIA’s determination
that she failed to meet her burden of proof. In addition, she contends that the refusal to
grant her motion to reopen conflicts with the BIA’s decision in a case remanded by the
Seventh Circuit. See Zheng v.Gonzales, 409 F.3d 804 (7th Cir. 2005).
We find no error in the BIA’s affirmance of the IJ’s denial of the motion to reopen.
The determination that Chen did not have a well founded fear of forced sterilization was
not irrational in light of Chen’s willingness in 2005 to withdraw her application for
asylum and to voluntarily depart to China, and Chen’s age and circumstances when she
filed her motion to reopen. Although Chen relies on Zheng as authority that she has a
viable claim that warranted reopening her application, she fails to recognize that Zheng’s
persuasiveness in the case sub judice is limited for several reasons. First, the facts in
Zheng are distinguishable as the alien was only thirty six years old and the BIA assumed
that her testimony that she was repeatedly forced to have an IUD inserted, despite
suffering complications after the first procedure and having the IUD removed on three
occasions, was credible. Second, the BIA also assumed that the alien’s theory of
persecution was cognizable even though no court of appeals had yet to weigh in on
5
whether an alien can establish persecution on the basis that she was forced to submit to
the implantation of an IUD. Remand was required, the Seventh Circuit concluded,
because the denial of Zheng’s claim was unsupported and unreasoned in light of the
operative assumptions. These assumptions, however, are not present in this case.
Accordingly, we will deny Chen’s petition for review of the BIA’s order affirming
the IJ’s refusal to reopen her application for asylum.
6
