Filed: May 12, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-12-2008 Dong v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2772 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Dong v. Atty Gen USA" (2008). 2008 Decisions. Paper 1236. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1236 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-12-2008 Dong v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2772 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Dong v. Atty Gen USA" (2008). 2008 Decisions. Paper 1236. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1236 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-12-2008
Dong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2772
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Dong v. Atty Gen USA" (2008). 2008 Decisions. Paper 1236.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1236
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
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2772
___________
XIU YAN DONG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A 73-477-966)
Immigration Judge: Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 1, 2008
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: May 12, 2008)
___________
OPINION
___________
PER CURIAM
Xiu Yan Dong, a native and citizen of China, petitions for review of a final order
of the Board of Immigration Appeals (“BIA”), denying Dong’s motion to reopen as
untimely.
The Board issued the final administrative order in Dong’s case on April 28, 1998,
and subsequently denied her motion to reconsider. Dong did not seek review of either
decision before the Court of Appeals. Seven years later, Dong moved to reopen her case,
arguing that she could be forcibly sterilized if she is returned to China because she has
two children. She also fears that she could be placed in a labor camp and tortured
because she left China illegally. The BIA denied Dong’s motion to reopen as untimely
because it was not filed within 90 days after the BIA’s decision denying her appeal. The
motion to reopen was not received by the BIA until April of 2007, more than eight years
too late.
Because the denial of a motion to reopen is a final order, we have jurisdiction to
review the decision under 8 U.S.C. § 1252(a). See Sevioan v. Ashcroft, 290 F.3d 166,
171 (3d Cir. 2002). We review the denial of a motion to reopen immigration proceedings
for abuse of discretion, Guo v. Ashcroft,
386 F.3d 556, 562 (3d Cir. 2004), and we will
reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.”
Id.
A petitioner must file a motion to reopen within 90-days of the BIA’s final
administrative order. 8 C.F.R. § 1003.2(c). An exception to the 90-day bar for filing a
motion to reopen may be granted only if there are changed country conditions as
demonstrated by evidence that “is material and was not available and could not have been
discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); Filja v.
Gonzales,
447 F.3d 241, 253 (3d Cir. 2006). The BIA concluded that Dong’s evidence
2
did not demonstrate a material change in circumstances in China for purposes of meeting
the exception to the statutory time limit. The BIA considered Dong’s evidence of the
birth of a child in the U.S. to be evidence of changed personal circumstances, rather than
of changed conditions in China. We agree that Dong’s changed personal circumstances
are distinct from changed circumstances arising in China. See Wei Guang Wang v. BIA,
437 F.3d 270, 273 (2d Cir. 2006) (finding that the birth of the petitioner’s two children in
this country was evidence of changed personal circumstances, rather than of changed
conditions in China); Zhao v. Gonzales,
440 F.3d 405, 407 (7th Cir. 2005) (per curiam).
Dong argues that her motion to reopen is subject to the changed country conditions
exception and should have been granted based on documents contained in Shou Yung
Guo v. Gonazales, 463 F.3d 109 (2d Cir. 2006); see also Lin v. Attorney General,
468
F.3d 167 (2d Cir. 2006) (ordering remand to the BIA to consider documents submitted in
Shou Yung Guo), reh’g granted, Lin v. U.S. Dep’t. of Justice,
473 F.3d 48 (2d Cir. 2007)
(holding there is no procedure by which a petitioner can move in the court of appeals to
remand a case for consideration of new evidence; remanding instead based on the court’s
equitable powers).1 In Shou Yung Guo , the Second Circuit vacated the BIA’s denial of
the petitioner’s motion to reopen based on documents reflecting a 2003 decision by the
1
But see Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007) (holding that
remand for agency consideration of documents not in the record is inappropriate in the
absence of government consent because “agency regulations set forth procedures to
reopen a case before the BIA for the taking of additional evidence.”)
3
Changle City Family-Planning Administration and the Fujian Province Department of
Family-Planning Administration, the province where the petitioner in Guo lived and to
which she would be deported.2 Id. at 113-14. Under the 2003 decision, foreign-born
children would be counted in determining violations of the one-child policy.
Id. The
Court concluded that the locally issued documentation lent “powerful potential support to
a finding of changed circumstances because it states that a parent of two children such as
Guo would, on her return, be subject to forced sterilization, even if one were born outside
of China.”
Id. at 115.
The documents that Dong attached to her motion to reopen did not contain the
documents she relies on from Shou Yung Guo, but instead referenced the Second
Circuit’s citation to those documents in Shou Yung Guo.3 Pursuant to the regulations
governing reopening, an alien’s motion must “state the new facts that will be proven at a
2
The documents introduced by the petitioner in Shou Yung Guo dealt with the
sanctions applicable to Chinese nationals who had given birth to a child while living
abroad. The Changle City decision cautioned that Chinese nationals engaging in “any
reproductive behavior in violation of family-planning enforcement in China” while
overseas will be sanctioned according to family-planning rules and regulations enforced
at the local level, subject to exceptions for those having a permanent residence overseas
or a temporary visa for at least a three year stay. The Fujian Province decision affirmed
the Changle City decision. 463 F.3d at 112.
3
Dong’s documents attached to her motion to reopen included her affidavit stating that
she had a child born in the United States in 2000, a birth certificate for a daughter born in
China in 1991, a birth certificate for a son born in the United States in 2000, a 1999
marriage certificate, two affidavits from Dong’s female relatives stating they had been
forcibly sterilized after having two children (one in 2007, the other on an unstated date),
and several undated newspaper articles. (See Administrative Record (“A.R.”) 17-30.)
4
hearing to be held if the motion is granted and shall be supported by affidavits or other
evidentiary material . . . and all supporting documentation.” 8 C.F.R. § 1003.2(c)(1)
(emphasis added). Our review of the record is confined solely to the evidence that Dong
presented to the BIA. See Berishaj v. Ashcroft, 378 F.3d 314, 328-30 (3d Cir. 2004)
(declining to take judicial notice of new country reports, and observing that “[i]t is a
salutary principle of administrative law review that the reviewing court act upon a closed
record.”); Sewak v. INS,
900 F.2d 667, 673 (3d Cir. 1990) (“Congress has expressly
limited our determination of petitions for review of orders of deportation solely to the
administrative record and the appropriately supported findings of fact made below.”).
Thus, because Dong did not provide the relevant supporting documentation regarding
changed country conditions to the BIA in her motion to reopen, remand to the BIA is not
required.
Dong contends that she, like the petitioner in Shou Yung Guo, is from Fujian
Province and, therefore, that the documents that supported the motion to reopen in that
case apply equally here. However, the BIA has since assessed the Shou Yung Guo
documents and determined that such evidence did not demonstrate that Chinese nationals
would be persecuted for having two U.S.-born children. Matter of S-Y-G-, 24 I. & N.
Dec. 247, 257-59 (BIA 2007), appeal docketed No. 07-3415 (2d Cir. Aug. 9, 2007). In
addition, Dong has not shown that the BIA’s failure to consider the documents in Shou
Yung Guo prejudiced her case. See Romanishyn v. Attorney Gen. of U.S., 455 F.3d 175,
5
185 (3d Cir. 2006) (alien must show substantial prejudice to prevail on due process
claim). In particular, Dong has not shown changed circumstances with regard to the
existence of China’s one child policy or its enforcement between 1996, the time of her
asylum hearing, and 2007, when she filed her motion to reopen. The BIA clarified in
Matter of S-Y-G that “a new report or a new law is not evidence of changed conditions
without convincing evidence that the prior version of the law was different, or was
differently enforced, in some relevant and material way.” 24 I. & N. at 257. Dong did
not provide such evidence to the BIA in her motion to reopen.
Dong also argues that her due process rights were violated by the BIA’s denial of
her motion to reopen because the BIA issued a “boilerplate” decision. Although there is
no constitutional right to asylum, aliens facing removal are entitled to due process. See
Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). In this context, the Due Process Clause
entitles an alien to “a full and fair hearing and a reasonable opportunity to present
evidence.”
Romanishyn, 455 F.3d at 185. However, “due process challenges to
deportation proceedings require an initial showing of substantial prejudice.” Khan v.
Attorney Gen.,
448 F.3d 226, 236 (3d Cir. 2006) (citation and internal quotations
omitted).
We do not agree that the BIA’s decision was “boilerplate.” The BIA explained
that Dong’s motion to reopen was denied because it was more than eight years late. The
BIA went on to analyze whether Dong qualified for an exception to the statutory time
6
limit and found that the evidence she proffered, in particular her 1999 marriage and the
2000 birth of her son in the United States, constituted a change to her personal
circumstances, rather than a changed country condition. The BIA thus concluded that
Dong had not met the statutory requirements of 8 C.F.R. § 1003.2(c)(3)(ii). Nonetheless,
even if the BIA’s decision could be considered “boilerplate,” Dong has not demonstrated
prejudice and therefore she has not sustained a due process violation.
For the foregoing reasons, we will deny the petition for review.
7
