                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-2004

Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3746




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                              Nos. 03-3746 and 04-1364
                                   ____________

                           WEN CHEN; DING CHENG XU,

                                                Petitioners

                                           v.

             JOHN ASHCROFT, Attorney General of the United States;
           BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES,

                                            Respondents
                                    ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                     (Board Nos. A78-199-307 and A78-199-308)
                                    ____________

                               Argued December 7, 2004

     Before: RENDELL and FISHER, Circuit Judges, and YOHN,* District Judge.

                              (Filed December 28, 2004)

Theodore N. Cox
Joshua E. Bardavid (Argued)
Law Office of Theodore N. Cox
401 Broadway, Suite 701
New York, NY 10013
      Attorneys for Petitioners



      *
        The Honorable William H. Yohn, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
Earl B. Wilson (Argued)
Linda S. Wernery
Terri J. Scadron
William C. Minick
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
        Attorneys for Respondents

                                       ____________

                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.

       Appellants, Wen Chen and Ding Cheng Xu (“Petitioners”), natives and citizens of

the People’s Republic of China, appeal the Board of Immigration Appeals’ (“BIA”)

denial of their Motion to Reopen and Reconsider and Motion to Reopen and Remand

their asylum proceedings. Petitioners argue that the BIA abused its discretion in denying

their Motions to Reopen, because they presented new and material evidence of prima

facie eligibility for asylum, withholding of removal, and relief under Article III of the

Convention Against Torture.1 We reverse the BIA’s denial of Petitioners’ Motion to


       1
         Petitioners alternatively argue that the United States’ obligations under the U.N.
Protocol relating to the status of refugees and the Convention Against Torture override
the regulatory standard for a motion to reopen when the alien faces persecution or torture
if repatriated, and additionally, that pursuant to the International Covenant on Civil and
Political Rights, they cannot be repatriated without giving due consideration to the effect
it would have on their families. Because Petitioners did not raise these claims before the
BIA, they have failed to exhaust their administrative remedies, and this Court is without
jurisdiction to consider either argument.

                                              2
Reopen and Remand Based on Lozada and accordingly, do not reach the denial of

Petitioners’ Motion to Reopen and Reconsider.

       As we write solely for the parties, a minimum of facts will be recited. Petitioners

initially sought asylum, withholding of removal, and relief under Article III of the

Convention Against Torture on the ground that Chen was persecuted on account of her

political opinion.2 The basis of Chen’s claim was that she was sexually molested by a

customer of her employer with the complicity of the chairman of the factory where she

worked in China, and as a result of reporting the incident to authorities, she was

terminated from her job and threatened that she should not voice further complaints. The

Immigration Judge denied Petitioners’ application for asylum on this basis, however, as

“there [was] no evidence that the harm suffered by [Chen] was on account of her actual or

imputed political opinion.” (Immigr. J. Order at 7.) (App. 195.)

       Petitioners appealed the Immigration Judge’s decision to the BIA. During the

pendency of this appeal, Chen gave birth to twin daughters. On March 25, 2002, while

their appeal was still pending before the BIA, Petitioners filed a Motion to Remand in

order to present evidence of the birth of their children, which they alleged would cause

them to be persecuted under China’s one-child family planning policy should they return

to China. On May 28, 2003, the BIA affirmed the Immigration Judge’s decision denying


       2
        Petitioner Ding Cheng Xu, the husband of Chen, entered the United States on or
about November 1, 1997, at an unknown place, without admission or parole after
inspection by a Service officer. Chen and Xu were married on September 9, 1999, in
New York. Their cases were consolidated at their request.

                                             3
Petitioners’ application for asylum and denied their Motion to Remand, because the

arguments and evidence presented did not establish that the outcome would have been

different if remand was granted.

       On June 23, 2003, Petitioners filed a Motion to Reopen and Reconsider Asylum

Proceedings with the BIA. On August 19, 2003, the Motion was denied as the BIA found

that it was not supported by objective evidence showing that persons in their situation,

Chinese nationals with foreign-born children, would be persecuted under China’s one-

child family planning policy if returned to China. The Board thus concluded that

Petitioners failed to demonstrate prima facie eligibility for asylum.

       On September 22, 2003, represented by new counsel, Petitioners filed their Motion

to Reopen and Remand Based on Lozada before the BIA. (Citing Matter of Lozada, 19 I.

& N. Dec. 637 (BIA 1988)). The Motion alleged that Petitioners were provided

ineffective assistance of counsel by their previous attorney, because he failed to submit

evidence that the Chinese government enforces its one-child policy against Chinese

nationals with foreign-born children in their earlier Motion to Reopen and Reconsider. In

support of this Motion, Petitioners attached an affidavit by John Shields Aird, a retired

demographer from the United States Bureau of the Census as a specialist on demographic

developments and population policy in China. In his affidavit, Aird asserted that China

enforces its one-child policy against persons in Chen’s and Xu’s situation. On

February 5, 2004, the Board again denied the Motion to Reopen and Remand Based on



                                              4
Lozada, finding that Petitioners still had not demonstrated prima facie eligibility for

asylum and also, that they failed to present new and previously unavailable evidence.3

       Because this Court finds that Petitioners satisfied their burden of demonstrating

prima facie eligibility for asylum, we reverse the BIA’s denial of their Motion to Reopen

and Remand Based on Lozada.

       A motion to reopen must establish prima facie eligibility for asylum. Guo v.

Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004) (citing Sevoian v. Ashcroft, 290 F.3d 166, 173

n.5 (3d Cir. 2002)). The prima facie case standard for a motion to reopen requires the

applicant to produce objective evidence showing a reasonable likelihood that he can

establish that he is entitled to relief. Id. (citing Sevoian, 290 F.3d at 174). A “‘reasonable

likelihood’” means “merely showing a realistic chance that the petitioner can at a later

time establish that asylum should be granted.” Id. at 564.

       In Guo v. Ashcroft, this Court recently held that the prima facie case standard for a

motion to reopen was met where the applicant submitted, inter alia, the birth certificate of

the applicant’s first child, a letter from the applicant’s obstetrician describing the birth of

her second child, a previous BIA decision granting a motion to reopen asylum

proceedings of a Chinese applicant with two U.S.-born children, and most notably, an


       3
       The latter conclusion was based upon the BIA’s determination that because Chen
gave birth to her twin daughters on May 1, 2001, she must have known that she was
pregnant on January 10, 2001, just four months before, when she testified before the
immigration judge in support of Petitioners’ asylum application. Therefore, the BIA
concluded that the information pertaining to the birth of Chen’s and Xu’s twin daughters
was not previously unavailable within the meaning of 8 C.F.R. § 1003.2(c)(1).

                                               5
affidavit by John Shields Aird in support of the applicant’s claimed fear of persecution

under China’s one-child family planning policy. Id. at 560. Because Petitioners here

presented substantially similar evidence to that offered in the Guo case, this Court finds

that Petitioners have met their burden in establishing prima facie eligibility for asylum.

       We reject the BIA’s determination that Petitioners should have come forward with

the fact of Chen’s pregnancy and therefore failed to present new and previously

unavailable evidence. Only Chen’s giving birth, not her pregnancy, would have been

grounds for relief, so the presentation of her pregnancy alone would not have been a basis

for reopening and the presentation of the birth of the children after the January hearing

was new and previously unavailable evidence.

       For these reasons, we will grant the Petitions at Nos. 03-3746 and 04-1364.

________________________




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