Filed: Jul. 19, 2010
Latest Update: Feb. 21, 2020
Summary: IMG-256 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-3402 _ YI XIAN LIU, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077-644-965) Immigration Judge: Honorable Donald V. Ferlise _ Submitted Pursuant to Third Circuit LAR 34.1(a) July 14, 2010 Before: BARRY, GREENAWAY, JR. AND STAPLETON, Circuit Judges (Opinion filed: July 19, 2010) _ OPINION _ PER CURIAM Yi Xi
Summary: IMG-256 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-3402 _ YI XIAN LIU, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077-644-965) Immigration Judge: Honorable Donald V. Ferlise _ Submitted Pursuant to Third Circuit LAR 34.1(a) July 14, 2010 Before: BARRY, GREENAWAY, JR. AND STAPLETON, Circuit Judges (Opinion filed: July 19, 2010) _ OPINION _ PER CURIAM Yi Xia..
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IMG-256 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3402
___________
YI XIAN LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-644-965)
Immigration Judge: Honorable Donald V. Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 14, 2010
Before: BARRY, GREENAWAY, JR. AND STAPLETON, Circuit Judges
(Opinion filed: July 19, 2010)
___________
OPINION
___________
PER CURIAM
Yi Xian Liu petitions for review of an order of the Board of Immigration Appeals
(“BIA”) denying her motion to reopen. For the reasons that follow, we will deny the
petition for review.
Petitioner Yi Xian Liu, a native and citizen of China, arrived in the United States
in 1999 without a valid visa. She applied for asylum, withholding of removal, and relief
under the Convention Against Torture on the ground that she had been persecuted and
tortured as a Christian. An immigration judge (“IJ”) found Liu’s testimony incredible,
and in May 2001 denied her applications and ordered her removed to China. In March
2003, the BIA affirmed. This Court upheld the adverse credibility determination and
denied Liu’s petition for review. See Liu v. Bureau of Citizenship & Immigration Servs.,
96 F. App’x 89 (3d Cir. Apr. 30, 2004).
In January 2007, Liu filed a motion to reopen with the BIA based on the birth of
her two children in the United States, arguing that this development, coupled with a
change in the enforcement of family planning policies in China, excused her motion to
reopen from the time limitations. See 8 C.F.R. § 1003.2(c)(2) (requiring that, except
under certain circumstances, motions to reopen must be filed within 90 days of entry of
the final administrative order of removal). The BIA dismissed the motion to reopen as
untimely and held that Liu had not demonstrated a change in country conditions sufficient
to support reopening. This Court vacated and remanded in light of its decision in Zheng
v. Attorney General, 549 F.3d 260 (3d Cir. 2008), holding that it was not evident from the
BIA’s opinion that it had sufficiently considered all of the submissions filed in connection
with Liu’s motion to reopen. See Yi Xian Liu v. Attorney Gen., 306 F. App’x 756 (3d
Cir. 2009).
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On remand, the BIA indicated that Liu had not adequately documented that she is
the mother of two American-born children, that many of the documents she submitted
were not originals and were not properly authenticated or corroborated, that it had already
considered and rejected much of the background evidence she submitted, and that it did
not find that evidence to be as persuasive on the issue of changed country conditions in
China as the Department of State Country Reports. Finally, the BIA concluded that even
after reviewing all of the evidence submitted in connection with Liu’s motion to reopen, it
could not discern a national policy of requiring the sterilization of a parent who returns to
China with a second child born outside of the country. Accordingly, the BIA held that
petitioner’s evidence did not establish a change in country conditions since the denial of
her initial request for relief, and denied her motion to reopen. Through counsel, Liu
timely filed a petition for review.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. We
review the decision of the BIA denying the motion to reopen for abuse of discretion. See
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Under this standard, we will reverse
the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v.
Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002).
Motions to reopen generally must be filed with the BIA “no later than 90 days after
the date on which the final administrative decision was rendered.” 8 C.F.R.
§ 1003.2(c)(2). Liu does not contest the untimeliness of her motion, but rather argues that
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it is saved by the exception to the 90-day limit for motions that rely on evidence of
“changed circumstances arising in the country of nationality . . . if such evidence 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).
In Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2008), we discussed in detail
our standard for reviewing decisions of the BIA under such circumstances:
On the one hand, the BIA abuses its discretion if it fails completely to
address evidence of changed country circumstances offered by a
petitioner. . . . The BIA should demonstrate that it has considered such
evidence, even if only to dismiss it. In so doing, 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. On
the other hand, we do not hold . . . that where the BIA has given reasoned
consideration to the petition, and made adequate findings, it must expressly
parse or refute on the record each individual argument or piece of evidence
offered by the petitioner. . . . While the BIA must consider such evidence,
it may do so in summary fashion without a reviewing court presuming that
it has abused its discretion.
Id. at 268 (quoting Wang v. BIA,
437 F.3d 270, 275 (2d Cir. 2006)). We remanded to the
BIA in Zheng because the BIA “did little more than quote passages from its earlier
decision in J-W-S- without identifying – let alone discussing – the various statements
contained in the record before it that Zheng submitted in support of his motion to reopen.”
Id. Shortly thereafter, in Liu v. Attorney General,
555 F.3d 145 (3d Cir. 2009), we held
that the BIA had adequately considered the materials submitted by petitioner in support of
her claim of changed circumstances. See
id. at 149. In Liu, the BIA enumerated all of
the documents offered by petitioner, set out its evaluation of them and concluded that
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“‘[n]one of the evidence presented states or infers that overseas Chinese returnees are
subject to forced sterilization after giving birth to 2 children abroad.’” Id. at 150.
The BIA’s analysis on remand in this case is much closer to that in Liu than that in
Zheng. In her petition for review, Liu argues that the BIA attached insufficient weight to
her supporting evidence, that she “clearly established changed country conditions in
China,” and that the Board therefore abused its discretion in denying her motion to
reopen. However, Liu frequently conflates the ultimate determination of whether she has
shown eligibility for relief from removal with the initial determination of whether she has
proven that the enforcement of the family planning policy in China has changed in any
meaningful way since the denial of her first request for relief. In support of her changed
circumstances argument, she analogizes this case to those in which the United States
Court of Appeals for the Eleventh Circuit found that the BIA abused its discretion in
denying petitioners’ motions to reopen. See Yaner Li v. Attorney Gen., 488 F.3d 1371
(11th Cir. 2007) & Xue Xian Jiang v. Attorney Gen.,
568 F.3d 1252 (11th Cir. 2009).
However, in Liu, the BIA considered virtually the same evidence that persuaded the
Eleventh Circuit in Li & Jiang.
See 555 F.3d at 149-50. On review, we held that the
BIA’s conclusion that the Chinese government did not have a national policy of
sterilizing a parent who returns to China with more than one child was a proper exercise
of its discretion. See
id. Accordingly, we are not persuaded by petitioner’s analogy.
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After its thorough discussion of the extensive evidence submitted by petitioner, the
BIA concluded that it “fails to establish a change in circumstances or country conditions
‘arising in the country of nationality’ so as to create an exception to the time limitation for
filing a motion to reopen to apply for asylum.” (A.R. 4.) We cannot say that the BIA
abused its discretion in so holding. While Liu challenges the weight her evidence was
accorded, she does not point to any specific piece of evidence that the BIA overlooked or
misconstrued in reaching its decision. Petitioner’s general references to the ways in
which the “record evidence” supported her claim are insufficient to convince us that the
BIA abused its discretion in denying her motion to reopen.
Based on the foregoing, we will deny the petition for review.
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