Filed: Feb. 10, 2012
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-4450 No. 11-1703 _ KWAN HO WU, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petitions for Review from Orders of the Board of Immigration Appeals (Board No. A071-873-513) Immigration Judge: Honorable William Strasser _ Argued January 25, 2012 Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges. (Filed: February 10, 2012) Joshua E. Bardavid [Argued] Theodore N. Cox 22nd Floor 401 Broadway New Yo
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-4450 No. 11-1703 _ KWAN HO WU, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petitions for Review from Orders of the Board of Immigration Appeals (Board No. A071-873-513) Immigration Judge: Honorable William Strasser _ Argued January 25, 2012 Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges. (Filed: February 10, 2012) Joshua E. Bardavid [Argued] Theodore N. Cox 22nd Floor 401 Broadway New Yor..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-4450
No. 11-1703
____________
KWAN HO WU,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
____________
On Petitions for Review from
Orders of the Board of Immigration Appeals
(Board No. A071-873-513)
Immigration Judge: Honorable William Strasser
____________
Argued January 25, 2012
Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges.
(Filed: February 10, 2012)
Joshua E. Bardavid [Argued]
Theodore N. Cox
22nd Floor
401 Broadway
New York, NY 10013-0000
Attorneys for Petitioner
Kathryn L. DeAngelis [Argued]
Eric H. Holder, Jr.
Thomas W. Hussey
Aaron R. Petty
Hillel R. Smith
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Kwan Ho Wu petitions for review of two orders of the Board of Immigration
Appeals (BIA), which denied two separate motions to reopen exclusion proceedings. We
will grant the petition, vacate the BIA’s orders, and remand to the BIA for further
proceedings.
I
Because we write for the parties, who are well acquainted with the case, we recite
only the essential facts and procedural history.
Wu entered the United States in 1992 and was placed in exclusion proceedings. In
1994, an Immigration Judge (IJ) found that Wu had not made the requisite showing to
warrant asylum or withholding of deportation, and ordered his deportation. The BIA
dismissed Wu’s appeal in 2000. Seven years later, Wu filed a motion to reopen exclusion
proceedings based on ineffective assistance of counsel. The BIA denied the motion
because it was filed out of time and the time to file could not be equitably tolled.
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On October 15, 2010, Wu filed a second motion to reopen, this time alleging
changed conditions in China. Wu, who has fathered four children since entering the
United States, argued that “a recent increase in forced . . . sterilization procedures in
China” constituted “changed country conditions,” thereby excusing his breach of the time
and numerical limitations on motions to reopen. Appended to Wu’s motion was evidence
that he would submit at a hearing before an IJ if his case were reopened. On November
16, 2010, the BIA denied the motion, and Wu timely filed a petition for review.
On December 16, 2010, Wu filed a third motion to reopen, which also sought
reconsideration of the denial of his second motion to reopen. He again argued changed
country conditions because of enhanced enforcement of China’s family planning policy
and attached additional evidence to his motion in support of that claim. The BIA denied
the motion on March 2, 2011. 1 Wu timely petitioned for review, and we consolidated his
two appeals.
II
We review de novo the BIA’s conclusions of law. Prestol Espinal v. Att’y Gen.,
653 F.3d 213, 215 (3d Cir. 2011) (citing Patel v. Att’y Gen.,
599 F.3d 295, 297 (3d Cir.
2010)). In general,
a party may file only one motion to reopen deportation or exclusion
proceedings (whether before the Board or the Immigration Judge) and that
1
Because Wu petitioned for review of the BIA’s decision on his second motion to
reopen, we need not consider whether the BIA’s denial of the motion for reconsideration
of the denial of that motion was proper.
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motion must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be
reopened.
8 C.F.R. § 1003.2(c)(2). These limitations are subject to the following exception, which
Wu has invoked in this case:
The . . . limitations . . . shall not apply to a motion to reopen proceedings
. . . [t]o apply or reapply for asylum or withholding of deportation based on
changed circumstances arising in the country of nationality or in the
country to which deportation has been ordered, 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); see 8 U.S.C. § 1229a(c)(7)(C)(ii). We have explained that
the BIA’s point of reference when evaluating whether country conditions have changed,
or whether the evidence proffered was previously unavailable, is the time of the hearing
before the IJ. Filja v. Gonzales, 447 F.3d 241, 252–54 (3d Cir. 2006). This holds true, as
is evident from the regulation’s numerical limitation, even where the applicant has
already filed a motion to reopen. Shardar v. Att’y Gen.,
503 F.3d 308, 313 (3d Cir.
2007).
The BIA decisions under review evidenced a misunderstanding of this rule of law.
After citing some of the evidence submitted with Wu’s second motion—including
affidavits from two Chinese nationals claiming that they were forcibly sterilized because
they fathered children abroad and a purportedly official village document indicating all
men with two offspring “are targeted for sterilization”—the 2010 decision stated: “The
applicant has not indicated why he waited until now to file this document, and he has also
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failed to demonstrate how conditions in China have changed since his last motion in 2007
. . . .” The BIA then dismissed a 2009 congressional report suggesting that Wu will be
required to register his children upon return to China, because “this document, too, fails
to present evidence that country conditions have changed since the applicant’s last
motion in 2007.”
Although it is less clear that the BIA’s 2011 decision also applied the incorrect
legal standard, we are concerned that it did so. The 2011 decision listed Wu’s submitted
evidence by date, noting that all of the documents were produced between 2001 and
2009. But the BIA then asserted that “[m]ost of the evidence is not new nor previously
unavailable” despite the fact that the hearing before the IJ took place in 1993 and 1994.
While the 2011 decision found that what “[t]he evidence indicates” is insufficient to meet
the burden of showing changed circumstances, it is unclear whether the BIA considered
all of the evidence before it or only that evidence which it viewed as timely submitted
under the incorrect legal standard.
In light of the foregoing, we are unable to determine whether the BIA abused its
discretion. See Abulashvili v. Att’y Gen., 663 F.3d 197, 202 (3d Cir. 2011) (reviewing the
denial of a motion to reopen for abuse of discretion). The BIA’s decisions must allow us
to “‘discern its reasons for declining to afford relief.’” Zheng v. Att’y Gen.,
549 F.3d 260,
268 (3d Cir. 2008) (quoting Wang v. BIA,
437 F.3d 270, 275 (2d Cir. 2006)). Compare
id. at 268–71 (holding the BIA’s analysis insufficient to support its decisions), with Liu v.
5
Att’y Gen., 555 F.3d 145, 148–50 (3d Cir. 2009) (finding the BIA’s analysis adequate).
Although it is possible the BIA considered all the evidence, its reliance on an erroneous
legal premise in the context of its written decisions casts doubt upon whether it fulfilled
its “‘duty to explicitly consider any country conditions evidence submitted by [the]
applicant that materially bears on his claim.’”
Zheng, 549 F.3d at 268 (quoting Guo v.
Gonzales,
463 F.3d 109, 115 (2d Cir. 2006)). Therefore, remand is necessary so the BIA
may weigh all of the evidence Wu submitted with his second and third motions to reopen
under the correct legal standard as provided in Filja.
III
For the aforementioned reasons, we will grant Wu’s petition, vacate the BIA’s
orders, and remand the matter to the BIA for proceedings consistent with this opinion.
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