Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2003

Qui Fang Cai v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket 02-1928




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                                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 02-1928




                  QUI FANG CAI,
                            Petitioner

                         v.

               JOHN ASHCROFT,
  Attorney General of the United States of America,
                                               Respondent




      On Petition for Review of an Order of the
          Board of Immigration Appeals
               (BIA No. A73 058 470)




   Submitted Pursuant to Third Circuit LAR 34.1(a)
                  January 9, 2003

Before: SCIRICA, BARRY and SMITH, Circuit Judges

               (Filed April 29, 2003 )




            OPINION OF THE COURT
SCIRICA, Circuit Judge.

       This is a petition for review of the Board of Immigration Appeals denial of a

motion to reconsider. We will grant the petition for review and remand.1

                                              I

       Qui Fang Cai is a native and citizen of China, who arrived in the United States on

November 3, 1994 and sought asylum and withholding of deportation soon thereafter.

She is married and currently has four children. The oldest two children, both daughters,

were born in China before Cai left for the United States and remained in China after Cai’s

departure.2 The youngest two children, a daughter and a son, were born in the United

   1
    During the pendency of these immigration proceedings, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No.
104-208, 110 Stat. 3009. Under the transitional rules of the IIRIRA, we have jurisdiction
under 8 U.S.C. § 1105a (1996). See IIRIRA § 309(c)(4). Aside from the transitional rules
governing judicial review, certain provisions of the IIRIRA do not apply here given that
these immigration proceedings began before the Act’s enactment.
         We note, however, that the Board has taken heed of § 601 of the IIRIRA, which
provides that forced abortion and sterilization, and persecution for resisting coercive
population control measures, are bases for grants of asylum and withholding of
deportation. See In re X-P-T-, 21 I & N Dec. 634 (B.I.A. 1996). Thus, the Board has
granted asylum and withholding of deportation based on claims regarding China’s family
planning policies even for applicants who were in immigration proceedings begun before
the enactment of the IIRIRA. See 

Prior to the IIRIRA, the Board had stated
that it could not “find that implementation of [China’s] ‘one couple, one child’ policy in
and of itself, even to the extent that involuntary sterilizations may occur, is persecution or
creates a well-founded fear of persecution.” In re Chang, 20 I & N Dec. 38, 44 (B.I.A.
1989).
   2
   According to her I-589 form, Cai’s oldest two daughters were born on January 11,
1987 and October 25, 1988. Cai’s husband left China before the birth of the second child,
coming to the United States in July 1988. Cai reunited with her husband upon her arrival
                                                                            (continued...)

                                              2
States during the pendency of these immigration proceedings. As we discuss, the births

of Cai’s youngest two children, particularly her son, play a significant role in our

decision.

       Upon arriving in the United States, Cai was charged with excludability. Cai

conceded she was inadmissible and requested asylum and withholding of deportation to

China for two reasons. Cai claimed that, under its family planning policies, the Chinese

government had persecuted and would continue to persecute her because she had two

daughters in violation of China’s “one couple, one child” rule. Cai testified and

submitted documents about coercive measures involving IUD implementation,

sterilization, and abortion.3 Cai also claimed her family was involved in a particular




   2
    (...continued)
in the United States six years later. We are not aware of the current immigration status of
Cai’s husband, nor of the current residence of Cai’s oldest two daughters.
        Cai’s claims for asylum and withholding of deportation, as well as the Immigration
Judge’s opinion, focused on incidents occurring between 1987 and 1989. In response to
these incidents, Cai apparently left her village in attempts to escape the alleged
persecution that she faced there. According to her application materials and testimony,
Cai hid in another village until 1994 when she left for the United States. Cai also cited
some additional problems she encountered during this time from 1990 to 1994.
   3
     Cai claimed that, after the birth of her first daughter, she was notified to have an IUD
fitted and that, after the birth of her second daughter, she was notified to undergo
sterilization. Cai testified in support of these claims and submitted government notices
delivered to her that corroborated her account. Cai further asserted that, due to certain
circumstances, these procedures were never performed on her.
        Cai also submitted general documentary evidence about China’s family planning
policies.

                                              3
conflict with local officials in her province, which led to her being treated harshly by the

officials and caused her to fear future harsh treatment.

       Hearings before the Immigration Judge began on March 28, 1995 and, after a

series of delays, concluded on September 18, 1996 when an oral decision was given.4 In

re Cai, No. A73 058 470 (Imm. Ct. Sept. 18, 1996). The IJ denied Cai’s applications for

asylum and withholding of deportation. The IJ found that Cai lacked credibility because

of what the IJ believed were inconsistencies, omissions, and exaggerations in her

testimony and the documents submitted. The IJ doubted the claims of past and future

persecution based on China’s family planning policies because the IJ did not believe the

“one couple, one child” rule was strictly enforced in Cai’s province. The IJ stated “[e]ven

[Cai] agrees that one can have children until a son is actually born,” and because “both of

the children born in China . . . were daughters, . . . clearly additional births would have

been permitted until a child who would be a male might be born.” 

see also 

10 (similar statements).5

       Cai appealed the decision of the IJ and filed a brief with the Board on April 17,

1997. On September 13, 1997, while still in the United States, Cai gave birth to a son,



   4
    Cai gave birth to her third daughter on May 28, 1996. While Cai testified as to the
birth of her third child, the IJ did not mention the new daughter in the oral decision.
   5
    The IJ also discounted Cai’s assertions about the conflict with local officials as a
family “squabble with someone who happens to be a security officer” and held the
conflict did not involve persecution against her. In re Cai, No. A73 058 470, at 12, 14,
16.

                                              4
her fourth child. In a letter dated February 2, 1998, Cai notified the Board of her son’s

birth and enclosed her son’s birth certificate. The February 2 letter asked the Board to

“amend the appeal accordingly.”

       On June 23, 1998, the Board dismissed Cai’s appeal. In re Cai, No. A73 058 470

(B.I.A. June 23, 1998). The Board agreed with the IJ that Cai’s account lacked credibility

and focused on her assertions involving the family squabble, which could not rise to the

level of persecution. The Board, however, gave little attention to Cai’s claim based on

China’s family planning policies. Moreover, the Board did not address the fact that Cai

had recently given birth to a son.

       Cai filed a motion to reconsider, explaining that, after coming to the United States,

she gave “birth to two more children, making her the mother of four children, two of

whom are U.S. citizens.” Her motion pointed out that “the Board did not take into

consideration the new facts of this case, i.e., [Cai] now has four, not two children,” and

included additional materials on China’s family planning policies. Her motion asked the

Board to reconsider its prior decision because the youngest two children were not

considered in the Board’s original decision and because the additional materials added

strength to Cai’s claim.6




   6
    Cai’s motion also noted “the coercive family planning is a national policy. The fact
that [Cai] was able to avoid certain enforcement measures for a few years while she was
in China does not mean that she could do so for the rest of her life especially in light of
the fact that she has twice the number of children now than when she was in China.”

                                             5
       On March 6, 2002, the Board denied Cai’s motion to reconsider, noting the motion

did not explain “when the children were born relative” to the Board’s original decision or

to the motion itself. In re Cai, No. A73 058 470, at 1 (B.I.A. Mar. 6, 2002). Based on

this omission, the Board believed it could not place the children’s births in the context of

Cai’s immigration proceedings and thus it did not address the matter further. The Board

concluded that Cai failed to show error in its original decision.

       Cai now contests the Board’s denial of her motion to reconsider.

                                             II

       “A motion to reconsider asserts that at the time of the Board’s previous decision an

error was made.” In re Cerna, 20 I & N Dec. 399, 402 (B.I.A. 1991). The motion

“questions the Board’s decision for alleged errors in appraising the facts and the law.” 

We review the Board’s denial of a motion to reconsider for abuse

of discretion.7 See, e.g., Nocon v. INS, 

, 1029 (3d Cir. 1986).

       Recently, in reviewing the Board’s denial of a motion to reopen, we stated “[i]n

determining whether the Board abused its discretion, we must . . . ask whether the Board




   7
    We have recently stated “when the Board . . . denies reopening on prima facie case
grounds, the ultimate decision should be reviewed for an abuse of discretion, while
findings of fact should be reviewed for substantial evidence.” Sevoian v. Ashcroft, 

, 174 (3d Cir. 2002). We recognize that review of the Board’s denial of a motion
to reopen is similar to review of the Board’s denial of a motion to reconsider. But,
because here we focus on the ultimate decision to deny Cai’s motion to reconsider, and do
not address findings of fact, we need not decide whether the bifurcated standard of review
announced in Sevoian applies in reviewing denials of motions to reconsider.

                                              6
followed proper procedures and considered and appraised the material evidence.”

(quotations omitted). We have made similar statements in

deciding whether the Board abused its discretion regarding other matters. In Tipu v. INS,

we stated “a decision of the [Board] may be remanded if it fails adequately to consider the

evidence in the record which favors [the] applicant.” 

, 583 (3d Cir. 1994).

Similarly, in Sotto v. INS, we stated “[i]f the administrative record fails to reveal that

[material] evidence has been fairly considered, the proper course is to remand the case to

the INS so that the Service may evaluate such evidence and consider its effect on the

application as a whole.” 

, 837 (3d Cir. 1984). Consistent with these

observations, we believe a matter may be remanded to the Board if it fails adequately to

consider material evidence in the record when denying a motion to reconsider.

       In denying Cai’s motion to reconsider, the Board failed adequately to consider the

births of her youngest two children in the United States. Cai stated the birth date of her

third daughter during her testimony before the IJ. Moreover, the record contains the

February 2, 1998 letter informing the Board of the birth of her son. The Board erred in

overlooking this documented evidence.

       The births of her youngest two children, especially the birth of her son, may be

significant in considering Cai’s claim. While the IJ did not believe that Cai’s province

strictly enforced China’s “one couple, one child” rule, the fact that Cai now has four

children, instead of two, relates to a determination of whether she would be persecuted



                                               7
even under a relaxed enforcement of the family planning policies. Furthermore, the IJ

stated that if Cai had a son, the family planning policies might be enforced. Given the

Board’s agreement with the IJ’s findings, the Board should have addressed the birth of

Cai’s son.8

        We do not contend that Cai necessarily meets the qualifications for asylum or

withholding of deportation. But because the Board failed to adequately consider material

evidence, it must revisit the motion to reconsider. 9

                                              III

        For these reasons, we will grant the petition for review and remand for

proceedings consistent with this opinion.10




   8
    The parties do not cite, nor are we aware of, any cases that address the effect of
children born during the pendency of immigration proceedings when emigrants from
China seek asylum and withholding of deportation based on China’s family planning
policies. But we note that children born to aliens in the United States have affected other
types of immigration claims. See, e.g., Delmundo v. INS, 

(9th Cir. 1994)
(stating children born to alien after she improperly entered the United States must be
considered in alien’s claim for waiver of excludability). We take no position on what
effect the births of Cai’s youngest two children should have on her immigration claim.
   9
    The Board also did not address the other materials relating to China’s family planning
policies, which Cai submitted with her motion to reconsider. In revisiting the motion to
reconsider, the Board should also consider this evidence.
       Cai also raises a claim under the Convention Against Torture for the first time in
her petition for review. We will not address the claim.
   10
     In furtherance of our opinion and the remand to the Board, Cai will be granted a stay
of removal for sixty days in order to allow her to file a motion for further stay of removal
before the Board.

                                               8
TO THE CLERK:

         Please file the foregoing opinion.




                                     /s/ Anthony J. Scirica
                                     Circuit Judge