Petitioner Jin Chen, a native and citizen of the People's Republic of China, seeks review of an August 12, 2010 order of the BIA denying his motion to reconsider and reopen his removal proceedings. By decision dated November 13, 2009, the BIA had affirmed the January 22, 2008 order and decision of the Immigration Judge ("IJ") denying Chen's application for asylum and withholding of removal and relief under the United Nations Convention Against Torture ("CAT"). Chen asserts that he should be granted asylum because of past persecution or a well-founded fear of future persecution on the basis that he will be subject to forced sterilization upon his return to China. We assume the parties' familiarity with the facts and procedural history of this case.
We review the BIA's denial of a motion to reconsider or reopen for abuse of discretion and will find such abuse if "the [BIA]'s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the [BIA] has acted in an arbitrary or capricious manner."
A motion to reconsider must specify errors of fact or law in the BIA's decision and be supported with pertinent authority. 8 C.F.R. § 1003.2(b)(1);
An alien applying for asylum based on a well-founded fear of future persecution must establish both an objectively and subjectively reasonable fear of future persecution.
We hold that the BIA did not abuse its discretion in denying Chen's motion to reconsider. In his original appeal to the BIA, Chen made two arguments: (1) he had suffered past persecution based on the implantation of an intrauterine device ("IUD") in his wife as well as his complaints to the Family Planning Officials about the resultant complications; and (2) he had a well-founded fear of future persecution because he believed he would be forcibly sterilized upon his return to China. The BIA rejected both arguments and dismissed Chen's appeal. In his motion to reconsider, Chen repeated the same arguments he raised in his original appeal, without raising new arguments or identifying a change in the law. Thus, we conclude that the BIA did not abuse its discretion in denying Chen's motion to reconsider.
We hold, however, that the BIA abused its discretion in denying the motion to reopen.
First, it was error for the BIA to conclude that Chen's additional documentary evidence was not "new" because the documents "predate[d] [its] decision by at least a year." In the context of a motion to reopen, the BIA must consider new evidence that was unavailable at the time of the IJ hearing.
Second, the BIA faulted Chen for "not having filed a motion to remand while the appeal was pending." The relevant regulation, however, does not impose a time limit for filing a motion to reopen proceedings to present evidence that could not have been presented at the IJ hearing.
Third, although the BIA also concluded that the additional documents, "even if considered reliable and authentic, are not new, material evidence warranting reopening," we conclude that "the BIA did not adequately engage with the facts or the political context of [Chen]'s activities."
Chen's new evidence, if credited, would establish that his wife, who had been living in hiding since the birth of their second daughter, visited his father's home on the eve of the Chinese Lunar New Year in 2008, which corresponds to February 6, 2008 on the Western calendar; that shortly after she departed, ten government officials raided his father's home, during the most important local holiday, in search of the couple; that the local family planning office issued the Birth Control Notice on March 3, 2008, which ordered Chen to appear for a "contraceptive procedure" by March 13 or be responsible for any consequences; and that, after Chen did not appear for the procedure, the Fuzhou City Public Security Bureau issued a summons on April 14, 2008, ordering Chen, without giving further reason, to appear at a local police precinct on April 28. The new evidence suggests that the government officials' pursuit of Chen intensified in the weeks after the IJ hearing.
We remand to the BIA to reopen the proceedings to give full consideration to Chen's evidence and determine whether he has presented sufficient evidence to support an objectively reasonable fear of future persecution.
Accordingly, the petition for review is