                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2130




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2130


                                  XIU FANG DONG,
                                                       Petitioner

                                           v.

                           ATTORNEY GENERAL OF THE
                                UNITED STATES,
                                               Respondent


                 On Petition for Review of a Decision and Order of the
                             Board of Immigration Appeals
                                (BIA No. A95-467-059)

                          Immigration Judge: Henry S. Gogin


                       Submitted under Third Circuit LAR 34.1(a)
                                   October 28, 2008

               BEFORE: SLOVITER and GREENBERG, Circuit Judges,
                         and IRENAS, District Judge*

                                (Filed: January 6, 2009)


                              OPINION OF THE COURT


*The Honorable Joseph Irenas, Senior Judge of the United States District Court for the
 District of New Jersey, sitting by designation.

GREENBERG, Circuit Judge.
       This matter comes on before this Court on a petition for review brought by Xiu

Fang Dong of a decision and order entered March 30, 2007, of the Board of Immigration

Appeals (“BIA”). Dong is a citizen of the People’s Republic of China from Fujian

Province who entered the United States without a valid entry document on June 1, 1998,

and currently resides in this country. After her entry into the United States she married

and had two children.

       On July 11, 2002, the former Immigration and Naturalization Service (“INS”)

served Dong with a Notice to appear because she had entered the country without a valid

entry document. In those initial proceedings, Dong admitted that she was removable as

charged but requested asylum, withholding of removal, and protection under the

Convention Against Torture by reason of China’s family planning policies. Even though

the application for asylum was time-barred, the INS acknowledged that it could be

considered on the merits because of exceptional circumstances, and an immigration judge

(“IJ”) did exactly that. But Dong did not obtain relief for, following a hearing on April 9,

2003, the IJ denied her relief by an order dated that day because she had not produced

evidence to support a conclusion that she had a well-founded fear of persecution if she

was returned to China. Dong appealed from the IJ to the BIA but on May 20, 2004, the

BIA affirmed the order and decision of the IJ. Dong did not file a petition for review of

the BIA order.

       On February 12, 2007, Dong filed a motion to reopen with the BIA. Her



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application recited that she filed it:

       in light of a change of conditions in China and new facts that are material
       and crucial, but were previously unavailable to her. The material and
       crucial change of conditions in China pertains to the extent and severity of
       persecutive means employed to enforce the country’s Population and
       Family Planning Laws (PFPL), as evidenced by the 2005 State Department
       Country Report on China. As a result of the change of conditions, time
       limitations do not bar [Dong’s] motion.

App. at 17 (emphasis in original).

       Dong filed numerous documents with her application, seven in the category of

“Personal Evidence” and eleven in the category of “Background Information.” The

Background information documents were as follows:

       1.      Policy statement from the Administrative Office of the
               National Population and Family Planning Committee;

       2.      Changle City Family Planning Q & A Handbook;

       3.      Testimony of Mr. John Aird on China’s New Family Planning
               Law, dated September 23, 2002;

       4.      The consular information sheet, May 29, 2003;

       5.      2004 country report (issued 2/28/2005);

       6.      2005 country report (issued 3/8/2006);

       7.      Policy letter on the issue of identification of nationality from
               the Department of Public Security of the People’s Republic of
               China;

       8.      Congressional -- Executive Commission on China (2005
               Annual Report);

       9.      Testimony by Mr. Harry Wu before the Congress on

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              December 14, 2004;

       10.    China shamed by forced abortions, Time Online (2005);

       11.    Who Controls the Family, Washingtonpost.com (2005).

       On March 30, 2007, the BIA entered a decision and order denying Dong’s motion

to reopen. In its decision denying the motion the BIA indicated that the question before it

was whether Dong’s motion fell within an exception to the 90-day time limit for a motion

to reopen. The BIA then indicated that there would be an exception to the 90-day time

limit if the evidence indicated that there had been changed circumstances in China since

the time of the April 2003 hearing provided that the changes were material to her claim.

The BIA concluded that “the evidence reflects conditions substantially similar to those

that existed at the time of her [April 2003] hearing . . . [and] generally confirms a

continuation of problems that previously existed.” App. at 3. This petition for review

followed.

       The BIA had jurisdiction under 8 C.F.R. § 1003.2(c), and we have jurisdiction

pursuant to 8 U.S.C. § 1252. We review the decision and order of the BIA on an abuse of

discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).

       In light of our opinion in Zheng v. Attorney General, No. 07-3122,        F.3d   ,

2008 WL 5006072 (3d Cir. Nov. 26, 2008), the BIA’s opinion was inadequate because

the BIA only discussed one of the background information documents that Dong

submitted, the policy statement from the Administrative Office of the National Population



                                              4
and Family Planning Committee, even though eight of the remaining ten documents did

not exist in April 9, 2003, at the time of her hearing. The two that did exist on that date

were Aird’s testimony and the Department of Public Security policy letter but the BIA did

not discuss even these two documents. As we indicated in Zheng, an alien moving for a

reopening is entitled to have at least some recognition by the BIA that it has considered

her submissions in support of her motion.

       We recognize that the BIA in this case did recite in its March 30, 2007 decision

that in its “recent decision in Matter of C-C-, 23 I & N Dec. 899 (BIA 2006), [it]

discussed the most recent United States Department of State’s reports and concluded that

there was no persuasive evidence that returnees who have children born in the United

States face a realistic likelihood of being forced to undergo sterilization upon return to

China.” App. at 3. While undoubtedly C-C- is significant, C-C- did not mention all of

Dong’s submissions in this case and thus the BIA’s reference to C-C- cannot overcome

the problems with its decision in this case. Accordingly, we must remand the matter to

the BIA for reconsideration.

       We emphasize, of course, that we do not suggest that the BIA reached the wrong

result as we only question its methodology in reaching that result. On remand it again

might conclude that it should deny the motion to reopen and then do so. Finally, we point

out that we recognize and agree with a statement the respondent makes in his brief to the

end that we do not have jurisdiction to review the BIA’s decision and order of May 20,



                                              5
2004. We are not making such a review as we address only the proceedings on the

motion to reopen that the BIA denied on March 30, 2007.

       For the foregoing reasons, we will grant the petition for review, vacate the BIA’s

order of March 30, 2007, and remand the case to the BIA for further proceedings

consistent with this opinion in which it should consider the evidence that Dong presented

and in its decision indicate that it has done so.




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