                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-4739
                                      ___________

                                 ZHONG BIAO YANG,
                                         Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A072-766-263)
                     Immigration Judge: Honorable Henry S. Dogin
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 8, 2010

              Before: MCKEE, HARDIMAN and COWEN, Circuit Judges

                                    (Opinion filed )
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM.

      Zhong Biao Yang, a native and citizen of China, petitions for review of an order

entered by the Board of Immigration Appeals (“BIA”) denying Yang’s motion to reopen

his exclusion/deportation proceedings. For the reasons that follow, we will grant the
petition for review and remand for further proceedings.

       Because the parties are familiar with the lengthy history of this case, we merely

summarize the background relevant to our consideration of the issues presented. In 1994,

Yang conceded that he is excludable from the United States, and he applied for asylum

and withholding of exclusion. Yang claimed, inter alia, that he was persecuted in China

based on his opposition to family planning policies. In 1996, the BIA affirmed an

Immigration Judge’s (“IJ”) decision denying Yang’s applications for relief.

       In 2001, the BIA granted Yang’s unopposed motion to reopen proceedings in light

of passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

which altered the definition of “refugee” in INA § 101(a)(42) to include persons

subjected to coercive family planning policies. In 2003, Yang and his wife (who was in

deportation proceedings herself) testified before an IJ in New York. Among other things,

Yang claimed that, as the father of three children (two born in the United States), he will

be forcibly sterilized upon return to China for having violated the one-child policy.

       The IJ denied relief, concluding that both Yang and his wife failed to establish past

or future persecution. The BIA addressed the appeals of Yang and his wife separately,

and it dismissed Yang’s appeal in 2004. It held, inter alia, that Yang had failed to prove a

well-founded fear that he will be forcibly sterilized. Yang sought review in the United

States Court of Appeals for the Second Circuit, which, in 2005, vacated the BIA’s

decision in Yang’s case under a “Stipulation and Order of Settlement and Dismissal”



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entered between the parties. The Court of Appeals remanded for reconsideration on the

sole issue of whether Yang’s wife’s forced IUD resulted in physical discomfort rising to

the level of persecution, and, if so, whether such harm is a protected ground for relief.1

       The BIA remanded to an IJ for fact-finding. After Yang was granted a change of

venue, an IJ in New Jersey conducted a hearing on April 2, 2007, and denied relief. The

IJ held, inter alia, that, even if the wife’s forced IUD resulted in physical problems, the

harm did not rise to the level of persecution.

       On July 23, 2008, the BIA affirmed and dismissed Yang’s appeal (the BIA issued

a separate decision addressing the wife’s appeal). The BIA noted that the only contested

issue on Yang’s appeal was whether his wife’s forced IUD entitled Yang to relief. It held

that, even if the wife’s suffering due to the forced IUD is viewed as persecution, Yang is

not entitled to relief based solely on his wife’s persecution.

       On October 16, 2008, Yang filed a motion to reopen in which he claimed, as he

had previously, that he fears forced sterilization upon return to China. Yang attached

numerous documents as exhibits to his motion, and he argued that the documents

constitute new, previously unavailable evidence which establishes his prima facie

eligibility for relief from exclusion.



   1
     Yang’s wife had an IUD forcibly inserted in 1994, shortly after giving birth to the
couple’s first child. She testified that she experienced physical problems with the IUD
and had a private doctor remove it in 2000. She entered the United States later that same
year and was placed in deportation proceedings. As mentioned, the couple then had two
children in the United States, born in 2001 and 2002.

                                                 3
       On December 18, 2008, the BIA denied the motion to reopen, holding that Yang’s

claim was previously litigated and he failed to establish eligibility for relief based on a

claim that he will be forcibly sterilized. Yang petitioned this Court for review. After a

motions panel granted a stay of Yang’s removal, the government filed an unopposed

motion to remand the matter so that the BIA could clarify which documents it had

considered in denying the motion to reopen, and to address Yang’s evidence further if

appropriate. This Court granted the motion to remand.

       On remand, the BIA issued a decision on November 30, 2009, in which it

addressed Yang’s evidence and again denied the motion to reopen. The BIA noted that it

would only consider whether Yang’s proffered evidence establishes that there has been a

“relevant change in circumstances” in China since his 2003 hearing before the IJ. It held

that Yang’s evidence, to the extent that it is relevant and was previously unavailable, does

not indicate that country conditions have changed materially such that Yang has an

objective, well-founded fear that he will be persecuted upon return to China. Yang timely

filed a petition for review in this Court.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the November 30,

2009, decision denying Yang’s motion to reopen. See Cruz v. Att’y Gen., 452 F.3d 240,

246 (3d Cir. 2006). We review the BIA’s decision for abuse of discretion and will

reverse only if the BIA is shown to have acted arbitrarily, irrationally, or contrary to law.

Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).



                                              4
       Yang argues that the BIA erred as a matter of law by effectively treating his

motion to reopen as untimely filed, which caused the BIA to apply an incorrect standard

of review to the motion. Petitioner’s Br. at 11-14. Yang notes that he moved to reopen

the BIA’s July 23, 2008, decision, which he contends was the “final administrative

decision” in the case. Because the motion to reopen was filed within ninety days of July

23, he argues that the BIA erred in requiring him to show “changed circumstances” in

China in order to reopen the case. We agree with Yang that the BIA erred.

       In general, motions to reopen must be filed within ninety days from the date “the

final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). If a motion to

reopen is timely filed, the standard that governs its consideration provides in relevant part

that it “shall not be granted unless it appears to the Board that evidence sought to be

offered is material and was not available and could not have been discovered or presented

at the former hearing[.]” Id. § 1003.2(c)(1). After expiration of the ninety-day period, an

alien can seek to reopen the proceedings only in limited circumstances, such as where the

alien claims “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.” Id. § 1003.2(c)(3)(ii).

       Here, while the BIA twice stated in its decision that Yang’s motion to reopen was

“timely filed,” it nevertheless assessed Yang’s proffered evidence under the changed-

circumstances standard that governs a motion to reopen filed after expiration of the



                                              5
ninety-day limitations period. In effect, the BIA treated Yang’s motion as an untimely

filed request to reopen the 2003 hearing on his claim that he will be forcibly sterilized in

China. But as both parties and even the BIA seem to acknowledge, the motion to reopen

was timely filed within ninety days of the July 23, 2008, decision – which was the “final

administrative decision” in Yang’s case. See Filja, 447 F.3d at 253 (observing that “[t]he

usual deadline for filing a motion to reopen is 90 days after entry of a final order of

removal”). Consequently, because Yang’s motion to reopen was timely, the BIA erred as

a matter of law in applying the changed-circumstances standard that governs motions

filed after expiration of the ninety-day limitations period.2

       Although we are reluctant to remand this matter yet again, we are constrained to do

so on the record before us. The BIA’s decision to reject the evidence supporting Yang’s

motion to reopen was firmly intertwined with its erroneous application of the changed-




   2
     While Yang suggests that “[t]he BIA’s decision is nothing more than an attempt to
foist a more onerous burden of proof on Yang,” Petitioner’s Br. at 14, the record does not
support Yang’s cynicism. In fact, the BIA’s confusion over the governing standard seems
to have resulted mainly from the protracted history of this case. As the BIA correctly
observed, Yang’s motion to reopen was based on the same claim, i.e., fear of forced
sterilization, that he litigated before the IJ in 2003. The proceedings that followed the
2003 hearing were limited to whether his wife’s forced IUD gave rise to a cognizable
claim of persecution. Thus, the BIA properly viewed Yang’s motion as seeking to reopen
a claim that was litigated in 2003, although it then erred in failing to apply the standards
that govern a timely filed motion to reopen such as Yang’s. Yang himself may have
exacerbated the confusion by suggesting in his motion to reopen that his “documents were
previously unavailable and show changed country conditions from the time [Yang] was
ordered excluded in 1997.” A.R. at 31 (emphasis added). As explained, Yang did not
need to show changed conditions to proceed with his timely filed motion to reopen.

                                               6
circumstances standard. As the BIA explained its holding: “the proffered evidence does

not indicate that circumstances in China have changed materially since the last hearing

such that [Yang] would have an objective[,] well-founded fear of persecution upon return

to China.” A.R. at 6. Where, as here, “the possibility exists that the [BIA]’s exercise of

its discretion was tainted by consideration of improper or irrelevant factors, remand to the

[BIA] is an appropriate remedy.” Chung v. INS, 602 F.2d 608, 612 n.3 (3d Cir. 1979).

       For these reasons, we will grant the petition for review and remand this matter to

the BIA for further proceedings on Yang’s motion to reopen consistent with this Opinion.




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