Filed: Jan. 25, 2016
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-1859 _ XI CHEN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A076-968-325) Immigration Judge: Neil P. Miller Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 12, 2016 Before: McKEE, Chief Judge, AMBRO and SCIRICA, Circuit Judges. (Filed: January 25, 2016) _ OPINION* _ * This disposition is not a
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-1859 _ XI CHEN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A076-968-325) Immigration Judge: Neil P. Miller Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 12, 2016 Before: McKEE, Chief Judge, AMBRO and SCIRICA, Circuit Judges. (Filed: January 25, 2016) _ OPINION* _ * This disposition is not an..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1859
_____________
XI CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A076-968-325)
Immigration Judge: Neil P. Miller
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 12, 2016
Before: McKEE, Chief Judge, AMBRO and SCIRICA, Circuit Judges.
(Filed: January 25, 2016)
_________
OPINION*
_________
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Chief Judge.
Petitioner Xi Chen, a native of China, filed a petition for review of the March 9,
2015 decision of the Board of Immigration Appeals denying his motion to reopen. For
the reasons that follow, we will deny the petition for review.
I.
Because we write primarily for the parties who are familiar with this case, we need
not recite the facts or procedural history in detail.1 It is sufficient to note the following:
Chen entered the United States without inspection in 1998 and was issued an order of
removal pursuant to I.N.A. § 212(a)(6)(A)(i). In the ensuing years, Chen filed multiple
untimely motions to reopen his requests for asylum, withholding of removal, and
protection under the Convention Against Torture. He based these motions on a fear of
persecution for his sexual orientation and under China’s one-child policy. The
Immigration Judge and the BIA denied his untimely motions.
At issue here is Chen’s September 5, 2014 motion to reopen based on changed
country conditions. He alleged China has enhanced its enforcement of its one-child
policy since his initial 1998 hearing, and he fears persecution because he has three
children. The BIA concluded that Chen had not met his burden of establishing a material
1
The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.2. We have jurisdiction under
8 U.S.C. § 1252.
2
change in country conditions, and denied his request to reopen.2 Chen subsequently
sought judicial review.
II.
We review the denial of a motion to reopen for abuse of discretion.3 The BIA
abuses its discretion if it acts in a manner that is “arbitrary, irrational, or contrary to
law.”4 Although this standard of review is deferential, we must be satisfied that the BIA
“meaningfully considered” the evidence presented by the petitioner.5 Thus, “the BIA
should provide us with more than cursory, summary or conclusory statements, so that we
are able to discern its reasons for declining to afford relief to a petitioner.”6
III.
As a threshold matter, a motion to reopen must generally be filed with the BIA no
later than 90 days after the entry of the final administrative decision.7 None of Chen’s
numerous motions to reopen complied with this timeline. However, this deadline does
not apply to motions based on “changed country conditions arising in the country of
nationality . . . if such evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.”8
2
J.A. 5.
3
See Pllumi v. Att’y Gen., 642 F.3d 155, 158 (3d Cir. 2011).
4
Filja v. Gonzales,
447 F.3d 241, 251 (3d Cir. 2006) (quoting Sevoian v. Ashcroft,
290
F.3d 166, 174 (3d Cir. 2002)) (internal quotation marks omitted).
5
Zhu v. Att’y Gen.,
744 F.3d 268, 272 (3d Cir. 2014).
6
Zheng v. Att’y Gen.,
549 F.3d 260, 268 (3d Cir. 2008) (citation omitted).
7
8 U.S.C. § 1229a(c)(7)(C)(i).
8
8 U.S.C. § 1229a(c)(7)(C)(ii).
3
Considering the record as a whole, the BIA found that Chen did not overcome his
untimeliness by establishing a material change in country conditions.9 Although the BIA
acknowledged that, since Chen’s hearing in 1998, he had become the parent of three
United States citizen children, it found that, to the extent Chen based his motion on a
change in his personal circumstances, the motion did not fall within 8 C.F.R.
§ 1003.2(c)(3)(ii), which requires a change in country conditions.
The BIA also rejected the evidence Chen claimed demonstrates that increasingly
strict enforcement of China’s one-child policy constitutes changed country conditions.
For instance, the BIA found that Chen had submitted evidence of old family planning
campaigns, spanning 2007 to 2009, and “there is no indication that any campaigns are
currently taking place in the respondent’s home locale.”10 In any event, the BIA
concluded Chen’s motion failed because there is no evidence the campaigns represent a
material change, as opposed to a recurrent event that began before Chen’s hearing.
IV.
In reviewing these conclusions, we are mindful that the BIA’s findings are entitled
to substantial deference. Accordingly, we find that the record does not compel reversal
of the BIA’s determination that Chen failed to carry his burden of proof.
9
Even if the petitioner presents sufficient evidence of changed country conditions, the
BIA may still deny the motion to reopen if the petitioner fails to establish a prima facie
case for the relief sought. See Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007).
10
J.A. 5.
4
Critically, the BIA provided us with sufficient reasoning for us to discern “why the
record supports its conclusion.”11 The BIA explained why it did not credit specific pieces
of evidence, noting either unreliability or lack of the comparator necessary to establish a
“change.”12 Our review of this reasoning reveals the BIA did not abuse its discretion in
finding Chen’s submissions fell short of a change in conditions. Although Chen’s
evidence tends to show the harshness of China’s one-child policy, the BIA’s
determination that Chen did not show that this severity constituted a change from
conditions during his 1998 hearing is a viable interpretation of the record. The BIA
likewise did not act “contrary to law” in finding that the birth of Chen’s children was a
personal change in circumstances, not country conditions.13
Juxtaposition of Chen’s objections with the BIA’s reasoning further illustrates that
Chen’s protests are insufficient to overcome the substantial deference we owe the BIA’s
decision. Chen appeals on two primary grounds. First, he claims the BIA deviated from
established policy when it discounted evidence because of its age, even though it was
previously unavailable. This assertion is unavailing because the BIA reasonably
concluded that the evidence reflected then-existing circumstances. The BIA ultimately
was not persuaded because the evidence did not reflect a requisite change. Indeed, some
of this evidence describes the strict policies as “continue[d]” efforts.14 This undercuts
Chen’s claim they are departures from prior policy, and thus show a change.
11
Khan v. Att’y Gen., 691 F.3d 488, 499 (3d Cir. 2012).
12
J.A. 5-6.
13
See Liu v. Att’y Gen.,
555 F.3d 145, 151 (3d Cir.2009).
14
J.A. 147.
5
Second, Chen contends that his evidence that Fujian, his home province in China,
mandates sterilization for parents of two or more children regardless of the children’s
place of birth constitutes a change warranting reopening. Although Chen produced
evidence indicating that such a policy has existed in some areas, the BIA did not abuse its
discretion in discounting it in the face of no strong evidence by Chen that what is now
before us constitutes a change in country conditions.
V.
For the reasons set forth above, we will deny the petition for review.15
15
Because the BIA did not abuse its discretion in finding no material change in country
conditions, we need not reach the separate question of whether Chen established a prima
facie case for relief.
6
