Filed: Mar. 24, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0113p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - BI FENG LIU, - Petitioner, - - No. 07-4359 v. , > - Respondent. - ERIC H. HOLDER, JR., Attorney General, - N On Petition for Review of a Final Order of the Board of Immigration Appeals. No. A79 424 638. Argued: January 13, 2008 Decided and Filed: March 24, 2009 Before: SUHRHEINRICH, GILMAN, and WHITE, Circuit Judges. _ COUNSEL ARGUED: Oleh R.
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0113p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - BI FENG LIU, - Petitioner, - - No. 07-4359 v. , > - Respondent. - ERIC H. HOLDER, JR., Attorney General, - N On Petition for Review of a Final Order of the Board of Immigration Appeals. No. A79 424 638. Argued: January 13, 2008 Decided and Filed: March 24, 2009 Before: SUHRHEINRICH, GILMAN, and WHITE, Circuit Judges. _ COUNSEL ARGUED: Oleh R. T..
More
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0113p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
BI FENG LIU,
-
Petitioner,
-
-
No. 07-4359
v.
,
>
-
Respondent. -
ERIC H. HOLDER, JR., Attorney General,
-
N
On Petition for Review of a Final Order
of the Board of Immigration Appeals.
No. A79 424 638.
Argued: January 13, 2008
Decided and Filed: March 24, 2009
Before: SUHRHEINRICH, GILMAN, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Oleh R. Tustaniwsky, HUALIAN LAW OFFICES, New York, New York, for
Petitioner. Nicole N. Murley, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Oleh R. Tustaniwsky, HUALIAN LAW
OFFICES, New York, New York, for Petitioner. Nehal H. Kamani, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. Bi Feng Liu, a native and citizen of China, was
ordered removed by an Immigration Judge (IJ). He subsequently filed a motion to reopen
proceedings based upon changed country conditions and changed personal conditions. The
IJ denied Liu’s motion, and the Board of Immigration Appeals (BIA) affirmed the IJ’s denial
of the motion without a hearing. Liu petitions for review of the BIA’s decision, arguing that
the BIA (1) abused its discretion in finding that he failed to show changed country
1
No. 07-4359 Liu v. Holder Page 2
conditions, (2) erred in determining that Liu was ineligible to file a successive asylum
application based upon changed personal circumstances, and (3) erred in failing to consider
whether Liu qualified for relief under the Convention Against Torture. Because the BIA
acted within its discretion, we DENY Liu’s petition for review.
I. Background
Liu was born on July 21, 1977, in the Fujian Province of China. Liu claims that his
fiancé became pregnant in 2001, but they were unable to register their marriage because she
had not reached the legal marital age. Chinese officials began“pursuing” Liu because of his
violation of birth-control policy, and he departed China and gained admission into the United
States without valid documentation on October 29, 2001.
On March 1, 2004, the Department of Homeland Security lodged a Notice to Appear
with the Executive Office of Immigration Review in Miami, Florida, charging Liu as
entering the United States without valid entry documents and, thus, subject to removal under
§ 212(a)(7)(A)(i)(I) of the Immigration and Naturalization Act (INA). Three weeks later,
Liu successfully moved to change venue to New York City. Between May 20, 2004, and
March 3, 2005, Liu appeared before an IJ in New York six times requesting more time to
find an attorney or to file applications for relief. Liu also requested another change of venue,
this time to Memphis. On March 3, 2005, the IJ in New York entered an order changing
venue to Memphis.
A master calendar hearing was eventually scheduled for June 29, 2005, in Memphis,
1
Tennessee. Shortly before the hearing, on June 10, 2005, Liu moved yet again to
change venue from Memphis back to New York. The IJ in Memphis denied that motion,
1
The BIA has previously explained:
Neither the [INA] nor the regulations define a “master calendar hearing.” However, we
understand such a hearing to be a preliminary stage of proceedings at which, even
though little or no testimony is taken, the Immigration Judge has great flexibility to
identify issues, make preliminary determinations of possible eligibility for relief, resolve
uncontested matters, and schedule further hearings. In addition, this is the stage of the
proceedings at which the Immigration Judge generally ensures that an alien has been
advised of his or her rights under the [INA] and applicable regulations, including rights
to apply for relief, and has been given notice and warnings regarding his or her
obligation to attend future hearings, file applications and evidence in a timely manner,
and otherwise cooperate with orders of the Immigration Court.
Matter of Cordova, 22 I. & N. Dec. 966, 968 (B.I.A. 1999).
No. 07-4359 Liu v. Holder Page 3
reasoning in part that Liu appeared to be forum shopping. Liu failed to appear at his
June 29 hearing, and the IJ issued an in absentia order of removal against Liu.2 In the
order, the IJ noted that Liu had admitted the factual allegations contained in his Notice
to Appear and had conceded his removability in one of his earlier motions to change
venue. Liu never challenged the in absentia order and did not move to reopen
proceedings at that time.
Instead, in August 2006–over one year after he was ordered removed from the
United States–Liu joined the China Democratic Party (CDP) in New York and began
participating in CDP meetings and protest rallies.3 On December 6, 2006, Liu filed a
motion to reopen his removal proceedings before the immigration court. To get around
the 90-day filing requirement for motions to reopen, Liu asserted both that his personal
conditions had changed based upon his activities with the CDP and that conditions had
changed in China as a result of that government’s increased control over the Internet and
traditional media. See 8 U.S.C. §§ 1229a(c)(7)(C)(i), (ii) (providing that motions to
reopen must be filed within 90 days of a final order of removal but that no deadline
applies if, inter alia, the motion to reopen is based upon changed conditions in the
country to which removal has been ordered). In support of his assertion that his personal
circumstances had changed, Liu appended to his motion to reopen his own sworn
affidavit, evidence of his involvement with the CDP in New York, and two articles that
he allegedly published on the CDP website. To support his argument that conditions had
changed in China, Liu cited the recent arrests of Chinese dissidents who published
political opinion on the Internet, articles chronicling the treatment of Chinese dissidents,
a translation of a new Chinese law titled “Measures for Administering the Release of
News and Information in China by Foreign News Agencies,” and two pages from the
U.S. Department of State’s “2005 Country Reports on Human Rights Practices” in
China, which, inter alia, explained that CDP members in China had been imprisoned.
2
Pursuant to § 240(b)(5)(A) of the INA, “[a]ny alien who, after written notice . . . has been
provided to the alien or the alien’s counsel of record, does not attend a proceeding under this section, shall
be ordered removed in absentia . . . .” 8 U.S.C. § 1229a(b)(5)(A).
3
The CDP is “an organization that opposes the Communist Party leadership in China and
promotes democracy.” Zhou v. Att’y Gen., No. 07-3726, 2009 WL 27437, at *1 (3d Cir. Jan. 6, 2009).
No. 07-4359 Liu v. Holder Page 4
Liu failed to append an application for asylum or any other form of relief to his
motion to reopen, however. See 8 C.F.R. § 1003.23(b)(3) (explaining that a motion to
reopen must be accompanied by the appropriate application for relief and all supporting
documentation).
On December 18, 2006, the IJ denied the motion to reopen, finding that Liu’s
evidence failed to establish changed country conditions that would excuse his untimely
filing of the motion to reopen. The IJ also cited three other reasons for denying Liu’s
motion: (1) Liu did not satisfy the procedural requirements of 8 C.F.R.
§ 1003.23(b)(4)(ii) because he failed to demonstrate that evidence of purported changed
country conditions was unavailable at the June 29, 2005 hearing, which Liu did not
attend; (2) Liu’s motion was another attempt to “manipulate the system” and did not, in
the IJ’s discretion, warrant reopening; and (3) Liu’s failure to attach an application for
asylum to his motion constituted a failure to demonstrate prima facie eligibility for
asylum.
Liu appealed the IJ’s denial of his motion to reopen to the BIA. Liu also sought
a remand order from the BIA so that he could submit the asylum application that he had
omitted from his earlier motion to reopen.
On October 12, 2007, the BIA dismissed Liu’s appeal. The BIA first addressed
Liu’s evidence of his participation in CDP activities and concluded that such evidence
demonstrated a change in personal circumstances but did not qualify as a change in
country conditions sufficient to warrant reopening his proceedings. Second, the BIA
held that, pursuant to 8 C.F.R. § 1003.23(b)(3), Liu’s failure to submit an asylum
application with his motion to reopen precluded reopening his removal proceedings.
Third, the BIA held that Liu’s remaining evidence did not establish changed
country conditions. Though the BIA did not specifically address the country report and
its findings of arrests of CDP members, the BIA found “no evidence that anyone in
China is aware of [Liu’s] alleged membership in, and activities in support of, the CDP.”
The BIA searched–unsuccessfully–for Liu’s articles on the Internet. Even if the articles
existed, the BIA found “no evidence that anyone in China is aware of these articles [or
No. 07-4359 Liu v. Holder Page 5
has] any inclination and ability to harm the respondent in any way because of them.”
The BIA also examined the new Chinese law Liu had cited and concluded that it only
applied “to the release of news and information ‘in China by foreign news agencies.’”
Because Liu’s articles were not published in China by Liu or a foreign news agency, the
BIA determined that Liu’s actions did not fall within the ambit of such law.
Additionally, the BIA pointed out that Liu’s evidence of the arrest of Chinese dissidents
did not suggest that those dissidents were prosecuted pursuant to the new law. Thus, the
BIA found that Liu’s evidence failed to demonstrate a changed country condition or a
well-founded fear of persecution if he returned to China.
The BIA also denied Liu’s motion for remand. The BIA reasoned that because
the requirements for a motion to remand are essentially the same as a motion to reopen,
the motion to remand was number barred under 8 C.F.R. § 1003.2(c)(2), which allows
only one motion to reopen before the IJ or the BIA.4 The BIA also found that the
motion to remand did not seek to introduce “previously unavailable” evidence but rather
averred that Liu’s counsel had erred by failing to include the application with the prior
motion. Accordingly, the BIA noted that the instant motion suggested ineffectiveness
of counsel and required compliance with the procedures set forth in Matter of Lozada,
19 I. & N. Dec. 637 (B.I.A. 1988), but that Liu failed to comply with those requirements.
In any event, because Liu failed to demonstrate changed country conditions warranting
reopening of his removal proceedings, the BIA noted that Liu could not show the
requisite prejudice to support a claim of alleged ineffectiveness of counsel.
4
In his petition to this Court, Liu does not challenge the BIA’s denial of his motion to remand as
number-barred. As the Government argues before this Court, an issue that is not raised in a party’s briefs
may generally be deemed waived. Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003); Farm
Labor Org. Comm. v. Ohio State Highway Patrol,
308 F.3d 523, 544 n.8 (6th Cir. 2002). For
completeness, we note that the BIA’s treatment of Liu’s purported motion to remand as equivalent to a
motion to reopen is supported by Sixth Circuit precedent. See Ahmed v. Mukasey,
519 F.3d 579, 586 n.7
(6th Cir. 2008) (noting that motions to remand or to reopen immigration matters are generally treated the
same); Alizoti v. Gonzales,
477 F.3d 448, 452 (6th Cir. 2007) (same); Pilica v. Ashcroft,
388 F.3d 941, 945
n.3 (6th Cir. 2004) (same); Ghareeb v. Ashcroft, 110 F. App’x 657, 659 (6th Cir. 2004) (“The BIA . . . will
characterize a motion to remand as a motion to reopen if the movant requests additional proceedings to
present evidence not available during the initial proceedings.”) (citing Matter of Coelho, 20 I. & N. Dec.
464, 471 (B.I.A. 1992)).
No. 07-4359 Liu v. Holder Page 6
II. Analysis
A. Jurisdiction
This Court has jurisdiction to review final orders of removal that have been
timely appealed. 8 U.S.C. § 1252(a)(1). An order of removal becomes final upon the
dismissal of an appeal by the BIA. 8 C.F.R. § 1241.1(a); Prekaj v. I.N.S., 384 F.3d 265,
268 (6th Cir. 2004). By statute, an alien seeking review of a final order of the BIA must
file a petition for review not later than 30 days after the date of the final order of
removal. 8 U.S.C. § 1252(b)(1). The BIA issued its decision on October 12, 2007, and
Liu timely filed his petition to this Court on November 9, 2007.
B. Standard of Review
The BIA has “broad discretion” to grant or deny a motion to reopen. I.N.S. v.
Doherty, 502 U.S. 314, 323 (1992). Therefore, we review the BIA’s denial of a motion
to reopen for abuse of discretion. Id.; Harchenko v. I.N.S.,
379 F.3d 405, 409 (6th Cir.
2004). The Supreme Court expressed why appellate courts give great deference to the
BIA’s denials of motions to reopen: “There is a strong public interest in bringing
litigation to a close as promptly as is consistent with the interest in giving the adversaries
a fair opportunity to develop and present their respective cases.” I.N.S. v. Abudu,
485
U.S. 94, 107 (1988). Indeed, “If [the BIA’s] discretion is to mean anything, it must be
that the [BIA] has some latitude in deciding when to reopen a case. . . . Granting such
motions too freely will permit endless delay of deportation by aliens creative and fertile
enough to continuously produce new and material facts sufficient to establish a prima
facie case.”
Id. at 108 (quoting I.N.S. v. Wang,
450 U.S. 139, 143 n.5 (1981) (per
curiam)).
This Court will find an abuse of discretion if the denial of the motion to reopen
“was made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invidious discrimination against a
particular race or group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005).
Where “the BIA expressly adopts and affirms the IJ’s decision but adds comments of its
No. 07-4359 Liu v. Holder Page 7
own, we directly review the decision of the IJ while also considering the additional
comments made by the [BIA].” Elias v. Gonzales,
490 F.3d 444, 449 (6th Cir. 2007).
We review legal determinations made by the BIA de novo.
Harchenko, 379 F.3d at 409.
C. Relevant Legal Framework
Section 240(c)(7) of the INA, 8 U.S.C. § 1229a(c)(7), applies where an alien who
was previously ordered removed from the United States seeks to reopen his removal
proceedings. It provides, in part, that “[a]n alien may file one motion to reopen
proceedings under this section.” 8 U.S.C. § 1229a(c)(7)(A). Generally, the motion to
reopen must be filed within 90 days of the date of entry of a final administrative order
of removal. 8 U.S.C. § 1229a(c)(7)(i). However, that 90-day deadline does not apply
if, inter alia, the purpose of the motion to reopen is to apply for asylum relief pursuant
to 8 U.S.C. § 1158(a) and is “based on changed country conditions arising in the country
of nationality or the country to which removal has been ordered, if such evidence is
material and was not available and would not have been discovered or presented at the
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(ii).
Section 1158(a), in turn, provides the authority for an alien to file for asylum.
8 U.S.C. § 1158(a)(1). Generally, an alien must file his asylum application within one
year after arriving in the United States and may not file another application if his first
is rejected. 8 U.S.C. §§ 1158(a)(2)(B), (C). However, an exception exists to both the
one-year deadline and the prohibition on refiling after an asylum application has been
denied “if the alien demonstrates to the satisfaction of the Attorney General either the
existence of changed circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing an application
within the period specified in subparagraph (B).” 8 U.S.C. § 1158(a)(2)(D).
Although Title 8 does not specifically address how these statutes operate where
an alien under an order of removal for more than 90 days seeks asylum relief, this Court
has held that if such an alien wishes to apply for asylum, the asylum application must be
coupled with a motion to reopen supported by changed country conditions satisfying
No. 07-4359 Liu v. Holder Page 8
8 U.S.C. § 1229a(c)(7)(C)(ii). See Zhang v. Mukasey, 543 F.3d 851, 857-58 (6th Cir.
2008).
D. Motion to Reopen
With this framework in hand, we first consider the BIA’s denial of Liu’s motion
to reopen. Neither party disputes that Liu’s motion to reopen was filed roughly 18
months after the IJ’s removal order became final. Therefore, Liu’s motion must satisfy
the exception to the general 90-day filing requirement. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i) (stating that the 90-day deadline for
filing motions to reopen does not apply if the basis of the motion is to apply for asylum
or withholding of removal pursuant to INA § 241(b)(3) or the Convention Against
Torture and “is based on changed country conditions arising in the country of nationality
or the country to which removal has been ordered, if such evidence is material and was
not available and would not have been discovered or presented at the previous
proceeding”); see also 8 C.F.R. § 1003.23(b)(3) (stating that “[a]ny motion to reopen
for the purpose of acting on an application for relief must be accompanied by the
appropriate application for relief and all supporting documents”).
Substantial evidence supports the BIA’s finding that Liu failed to satisfy the
timeliness exception for filing motions to reopen based upon changed country
conditions. First, Liu failed to comply with the procedural requirements for filing a
motion to reopen. As noted by both the IJ and the BIA, Liu did not append an
application for asylum to his motion to reopen as mandated by 8 C.F.R. § 1003.23(b)(3).
Therefore, Liu’s motion to reopen is, at a minimum, procedurally defaulted. See Tapia-
Martinez v. Gonzales, 142 F. App’x 882, 884-85 (6th Cir. 2005) (denying alien’s petition
for review where her motion to reopen was not supported with a copy of the application
for relief requested).
Second, Liu failed to demonstrate that the evidence he sought to offer was
unavailable at the prior hearing. “In determining whether evidence accompanying a
motion to reopen demonstrates a material change in country conditions that would justify
reopening, [the BIA] compare[s] the evidence of country conditions submitted with the
No. 07-4359 Liu v. Holder Page 9
motion to those that existed at the time of the merits hearing below.” Matter of S-Y-G,
24 I. & N. Dec. 247, 253 (B.I.A. 2007). Liu appended to his motion to reopen several
articles chronicling Chinese dissidents, but he did not present comparison of the country
conditions from the time between his removal order in June 2005 and his motion to
reopen in December 2006. Indeed, much of the evidence presented in the English-
language exhibits was dated before 2005 (the year in which the IJ issued the in absentia
order of removal) and reported events leading to arrests of dissidents during the years
2001-2003. Although three of the English-language articles were apparently published
in 2006 and reported arrests of Chinese dissidents for “subversion” and other offenses,
Liu failed to establish that any change in the law or country conditions between 2005
and 2006 formed the basis for those arrests.
Liu also attempted to show changed country conditions by citing to an excerpt
from the 2005 State Department Country Reports on China.5 That country report,
however, portrayed conditions in China as relatively constant. As the report noted, “The
government’s human rights record remained poor, and the [Chinese] government
continued to commit numerous and serious abuses.” While the report mentioned a
general trend of “increased harassment, detention, and imprisonment by government and
security authorities of those perceived as threatening to government authority,” the
section of the report referring specifically to the CDP did not mention any increase in
arrests of CDP members. Instead, the report explained that “[m]ore than 40 current or
former CDP members remained imprisoned or held in reeducation-through-labor
camps.” As such, the report demonstrates that the Chinese government remained
consistent in its policies regarding political parties like the CDP. Moreover, the 2005
Country Report did not cover the relevant time period, namely June 2005 through
5
The BIA did not specifically mention the 2005 State Department Country Reports in its decision.
We note that the BIA “owed no duty to rehearse” all of Liu’s evidence for the sake of completeness so
long as the BIA analyzed and explained the basis upon which it decided against Liu. See Zhang, 543 F3.d
at 855; see also Toussaint v. Att’y Gen., 455 F.3d 409, 416-417 (3d Cir. 2006) (holding that the BIA’s
failure to specifically mention the Country Reports does not automatically render its decision an abuse of
discretion where the record demonstrated that the BIA considered the country reports and articles as
background evidence). Here, the BIA adequately explained its reasoning in its opinion, allowing us
meaningful review.
No. 07-4359 Liu v. Holder Page 10
December 2006. Accordingly, the report failed to support Liu’s claim of changed
country conditions.
Finally, as the BIA stated, Liu’s remaining evidence, which depicted his
membership and participation in the CDP and its activities in the United States,
demonstrated a change in Liu’s personal circumstances but did not demonstrate changed
country conditions in China. Without evidence of changed country conditions, however,
Liu’s evidence of changed personal circumstances is insufficient to warrant reopening
proceedings. See Niyibizi v. Mukasey, No. 07-3805, 2008 WL 4889008, at *2 (6th Cir.
Nov. 6, 2008) (“Evidence of changes in personal circumstances, not accompanied by a
change in country conditions, is not sufficient to support an untimely motion to
reopen.”).
E. Asylum
Having concluded that the BIA acted within its discretion in denying Liu’s
motion to reopen, we next address whether the BIA abused its discretion in failing to
consider Liu’s application for asylum. We hold that the BIA properly denied Liu’s
request for asylum relief.
Liu argues that his involvement in CDP activities after his initial order of
removal satisfies the “changed circumstances” requirement of 8 U.S.C. § 1158(a)(2)(D)
and, thus, the BIA should have considered his asylum application.6 This case is
analogous to Zhang, where we held that an alien under a final order of removal for more
than 90 days may not use the “changed circumstances” standard of 8 U.S.C.
§ 1158(a)(2)(D) as an avenue for applying for asylum without first satisfying the
6
We note that the record is unclear as to how many asylum applications Liu has filed. In their
briefs to this Court, Liu and the Government characterize the application for asylum included with Liu’s
motion to the BIA for a remand order as a “successive” asylum application. The IJ, however, explained
in his order denying Petitioner’s motion to reopen that the “Department of Homeland Security did not refer
an I-589 application for asylum to the Miami Immigration Court” and that “[t]here is no I-589 [application
for asylum] in the Record of Proceedings, contrary to the representations in the motion to reopen.”
Whether Liu has previously applied for asylum relief does not affect our holding that Liu may not now
apply for asylum relief without successfully moving to reopen proceedings. See Matter of C-W-L, 24 I.
& N. Dec. 346, 354 (B.I.A. 2007) (“Neither the Board nor the Immigration Judge has jurisdiction to
consider a new asylum claim in proceedings that are administratively final and where the standards for
reopening are not satisfied.”)
No. 07-4359 Liu v. Holder Page 11
requirements for a motion to reopen based upon changed country conditions pursuant
to 8 U.S.C. § 1229a(c)(7)(C)(ii). Zhang, 543 F.3d at 859.
In Zhang, a Chinese citizen was detained upon arrival to the United States and
requested asylum. The IJ found her not credible and denied relief. The BIA affirmed,
making the removal order final. Zhang remained in the United States and gave birth to
two children. Zhang later filed a “Motion to Reopen and Successive Asylum
Application,” arguing both that her proceedings should be reopened pursuant to 8 U.S.C.
§ 1229a(c)(7)(C)(ii), based upon changed country conditions in China, and also that the
birth of her two children supported her application for asylum pursuant to the “changed
conditions” standard of 8 U.S.C. § 1158(a)(2)(D).
The Zhang Court disagreed that the two statutory provisions provided separate
avenues of relief, holding that 90 days after an alien becomes subject to a final order of
removal, if the alien wishes to seek asylum relief, the asylum application must be
coupled with a motion to reopen supported by changed country conditions. Zhang, 543
F.3d at 859. The Court reasoned that § 1158(a)(2)(D)’s exception to the time and
number limitations on applications for asylum does not apply to aliens under final orders
of removal once the 90-day period for reopening has expired. Because the “changed
circumstances” standard of 8 U.S.C. § 1158(a)(2)(D) includes circumstances within the
control of the alien,
Zhang, 543 F.3d at 859, extending the application of that standard
beyond the 90-day period for seeking to reopen a removal proceeding would lead to the
result that an alien under an order of removal may apply and reapply for asylum based
upon any changed circumstances, including those of the alien’s own making. See
id. at
858-59. Indeed, if the “alien could ‘completely bypass the more stringent procedural
requirements for a motion to reopen by filing a successive asylum application . . . neither
1229a(c)(7)(C)’s ninety-day deadline nor its exception . . . would ever apply, even after
the entry of a final order of removal.’”
Id. at 858 (quoting Jin v. Mukasey,
538 F.3d 143,
156 (2d Cir. 2008)). Such a result would nullify the finality of removal proceedings and
“permit[] an alien to manufacture a more perfect asylum application while living
illegally in the United
States.” 543 F.3d at 859.
No. 07-4359 Liu v. Holder Page 12
Liu’s time in this country reflects a similar attempt to manufacture a more perfect
asylum application while living illegally in the United States. From the start, Liu
repeatedly attempted to stall his removal proceedings, appearing before an IJ on six
different occasions beginning in 2004, each time asking for more time to find an attorney
or to file applications for relief, but never actually filing an application for relief or
seriously seeking counsel. Liu also engaged in forum shopping, making repeated
requests to change venue. Liu failed to appear for his evidentiary hearing and never
challenged the resulting in absentia order of removal. Instead, Liu remained illegally
in the United States. Then, almost five years after he entered the United States and over
a year after being ordered removed, Liu joined the CDP in New York and wrote two
articles criticizing China. Finally, eighteen months after his removal order, Liu moved
to reopen his removal proceedings, hoping that his two articles and participation in CDP
activities would provide the changed circumstances necessary for Liu to be granted
asylum. As such, Liu is exactly the type of alien that the Zhang Court cautioned against
giving “‘a second and third bite at the apple,’” Zhang, 543 F.3d at 859 (quoting with
approval the Second Circuit’s decision in Wang v. B.I.A.,
437 F.3d 270, 274 (2d Cir.
2006)), simply because he managed to evade authorities and attempted to change his
circumstances to resemble an asylum applicant under a legitimate fear of persecution.
F. Convention Against Torture
Liu’s final argument is that the BIA failed to consider whether he qualified for
relief under the Convention Against Torture. Liu did not raise the issue of CAT to the
BIA. Indeed, the words Convention Against Torture or the CAT acronym do not appear
in his brief to the BIA or in his motion to remand. Because Liu has not exhausted this
claim to the BIA, this Court lacks jurisdiction to hear it. See 8 U.S.C. § 1252(d)(1) (“A
court may review a final order of removal only if the alien has exhausted all
administrative remedies available to the alien as of right . . . .”); Hasan v. Ashcroft, 397
F.3d 417, 419-20 (6th Cir. 2005) (holding that this Court lacked jurisdiction to review
a denial of protection under CAT where the alien did not raise the issue to the BIA); Liti
v. Gonzales,
411 F.3d 631, 641 (6th Cir. 2005) (finding that the Court lacked jurisdiction
No. 07-4359 Liu v. Holder Page 13
to consider whether aliens may be eligible for asylum on humanitarian grounds where
aliens failed to raise the issue before the BIA); Ramani v. Ashcroft,
378 F.3d 554, 560
(6th Cir. 2004) (holding “that only claims properly presented to the BIA and considered
on their merits can be reviewed by this court in an immigration appeal”).
III. Conclusion
Based upon the foregoing analysis, we find no abuse of discretion and,
accordingly, DENY Liu’s petition for review.
