Filed: May 09, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-9-2008 Cheng v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-3087 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Cheng v. Atty Gen USA" (2008). 2008 Decisions. Paper 1245. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1245 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-9-2008 Cheng v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-3087 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Cheng v. Atty Gen USA" (2008). 2008 Decisions. Paper 1245. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1245 This decision is brought to you for free and open access by the Opinions of t..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-9-2008
Cheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3087
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Cheng v. Atty Gen USA" (2008). 2008 Decisions. Paper 1245.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1245
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NOT PRECEDENTIAL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
No. 07-3087
DEN FUNG CHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A77 121 670)
Immigration Judge: Honorable Eugene Pugliese
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 1, 2008
BEFORE: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion filed May 9, 2008 )
OPINION
PER CURIAM
Den Fung Cheng has filed a petition for review of an order of the Board of
Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings.
For the reasons that follow, we will deny the petition for review.
Cheng is a native and citizen of the People’s Republic of China. In 1999, as an
unaccompanied minor, he arrived in the United States without valid travel documents.
He was placed in removal proceedings and was charged under 8 U.S.C. § 1182(a)(4)(A)
as an alien likely to become a public charge, and under § 1182(a)(7)(A)(i)(I) as an
immigrant not in possession of a valid entry document, travel document, or other
document of identity or nationality. He denied the allegation of likelihood of becoming a
public charge but admitted to the documents charge.
Cheng applied for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In support of his applications for relief, Cheng
alleged that he would be persecuted if he returned to China because he left the country
illegally, and that his family suffered hardship in China because his parents had two
children, contrary to China’s population control laws. After a hearing, on August 4,
2000, the Immigration Judge (“IJ”) denied all forms of relief and ordered his removal
from the United States. On November 30, 2001, the BIA affirmed the IJ’s denial of relief
and dismissed Cheng’s appeal. More than five years later, on February 5, 2007, Cheng
filed a motion to reopen his removal proceedings based on his fear of persecution in
China in light of his having embraced Christianity in 2002. On June 14, 2007, the BIA
denied the motion to reopen as untimely. This petition for review followed.
We have jurisdiction to review the BIA’s denial of Cheng’s motion to reopen. See
8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. See
2
Sevoian v. Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002). Thus, to succeed on his petition
for review, Cheng must show that the BIA’s decision was somehow arbitrary, irrational,
or contrary to law. See
id.
An alien must file a motion to reopen no later than ninety days after the date on
which the final administrative decision was rendered See 8 C.F.R. § 1003.2(c)(2). There
is an exception to this limitation when an applicant for asylum or withholding of removal
demonstrates that his or her claim is based on changed circumstances in the country of
removal, if supporting evidence is material and was not available and could not have been
discovered or presented at the prior hearing. See 8 C.F.R. § 1003.2(c)(3)(ii).
As stated earlier, Cheng’s motion to reopen was based on his fear of persecution in
China as a Christian. Cheng submitted supporting materials, namely, the State
Department Country Report on Human Rights Practices 2005 for China (“the Report”), an
undated news article by the BBC News, and Cheng’s own affidavit. In his affidavit,
Cheng again briefly recounted his family’s unfair treatment by Chinese authorities in light
of his parents’ violation of the family planning laws. He further asserted that he also
feared returning to China in light of his new religion, given that China is still controlled
by the Communist Party and that “any other religion or belief is not welcomed.” He
stated that one of his best friends took him to church in 2002, and since then, he has
attended church almost once a week, he reads the Bible, and he meets with friends for
prayer and Bible study.
3
Aside from the BIA’s observations that Cheng’s affidavit does not identify the
church to which he belongs, and that he provided no adequate corroboration to the claim
that he is now a Christian, the BIA found that Cheng’s motion to reopen was based solely
on a change in personal circumstances, not on any changed conditions in China. Indeed,
Cheng has failed to identify any changed conditions in China. To the extent that Cheng
argues that the BIA erred in failing to consider whether the evidence he submitted
provides prima facie proof of eligibility for asylum, withholding of removal, and CAT
relief, we reject this argument. Cheng does not dispute that his motion to reopen was
filed beyond the ninety-day filing period, but he does not address how his motion satisfied
the criteria of 8 C.F.R. § 1003.2(c)(3)(ii), the procedural hurdle he must overcome before
having an untimely motion to reopen considered. See Shardar v. Attorney General,
503 F.3d 308, 313-14 (3d Cir. 2007). In sum, we conclude that Cheng did not sufficiently
allege or establish changed country conditions in China to qualify for an exception to the
ninety-day filing requirement. Thus, the BIA did not abuse its discretion in denying the
motion to reopen.
We will deny the petition for review.
4