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


2-4-2009

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Precedential or Non-Precedential: Precedential

Docket No. 07-3346




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                                      PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 07-3346


                       YING LIU
                a/k/a HONG YING LIN,
                                             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. A77-121-691)
        Immigration Judge: Alberto J. Riefkohl



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



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

                   (Filed: February 4, 2009)


Gary J. Yerman
Yerman & Associates
401 Broadway
Suite 1210
New York, NY 10013-0000

      Attorneys for Petitioner

Jeffrey S. Bucholtz
Acting Assistant Attorney General
U.S. Department of Justice
Civil Division

Alison Marie Igoe
Senior Litigation Counsel
Office of Immigration Litigation
Edward J. Duffy
Paul F. Stone
United States Department of Justice
Office of Immigration Litigation


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



                                 2
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000

      Attorneys for Respondent


                 OPINION OF THE COURT


GREENBERG, Circuit Judge.

                     I. INTRODUCTION

       This matter comes on before this Court on a petition for
review brought by Ying Liu of a decision and order entered July
25, 2007, of the Board of Immigration Appeals (“BIA”). Liu is
a citizen of the People’s Republic of China from Fujian
Province who has resided in the United States since 1999 even
though she does not have a lawful presence here and an
immigration judge (“IJ”) ordered her removed.

       Liu first attempted to enter this country when she flew to
Atlanta in 1997 but inasmuch as she could not legally enter she
was not admitted and thus she returned to China. Nevertheless,
on June 2, 1999, she again arrived in the United States, this time
at Los Angeles, but airport immigration personnel advised her
that she did not appear to be admissible and did not have the




                                3
documentation required to authorize her admission.1 At that
time, in a sworn statement, she said that she was a citizen of
China and had been living legally in Brazil. This claim had
documentary support because Liu possessed a Chinese passport
issued on November 19, 1998, by the Chinese Consulate
General in Sao Paulo, Brazil. Moreover, her knowledge of facts
about Brazil further supported her claim to have been in that
country, as she correctly identified Brasilia as its capital and
Portugese as its language. She also stated at Los Angeles that
after she left Brazil she went to Cambodia and Hong Kong
before coming to the United States. At Los Angeles Liu gave
her reason for coming to this country as the economic conditions
in Brazil as she said they were not good and thus she had come
to the United States “[t]o seek job opportunity.” App. at 288.
Of course, this economic explanation for her entry into the
United States could not have been a basis for the granting of
asylum.2


  1
    In her brief Liu indicates that she “entered the United States
on September 24, 1999,” petitioner’s br. at 2, but this date
appears to be incorrect. For our purposes the difference between
the June 2, 1999, and September 24, 1999, is immaterial as what
is significant is not when she arrived but the fact that she did not
have a lawful basis to come here as well as what she said after
she arrived and in subsequent proceedings.
  2
   In Li v. Attorney General, 400 F.3d 157, 159 (3d Cir. 2005),
we held “that deliberate imposition of severe economic
disadvantage because of a protected ground may rise to the level
of persecution.” Liu’s claim did not meet the Li criteria for
asylum.

                                 4
        In October 1999, the former Immigration and
Naturalization Service initiated removal proceedings against
Liu. At a hearing on those proceedings on August 28, 2000, Liu
dramatically shifted her explanation of why she came to the
United States and in doing so demonstrated her lack of concern
for the truth by testifying that she never had been to Brazil but
had left China by reason of her opposition to its family planning
population control policies. She attempted to explain away her
earlier claim of having resided in Brazil on the basis of it being
a fabrication that a smuggler suggested to her. Thus, she
conveniently changed her reason for coming to this country
from seeking economic improvement, a reason plainly
insufficient to support an asylum claim, to her opposition to
Chinese birth control measures, a reason that might support an
asylum claim. Clearly, she gave a materially false statement
either at the Los Angeles airport when she entered the country
or at her hearing before the IJ in her initial judicial attempt to
obtain asylum.

        The IJ understandably rejected Liu’s testimony because
the evidence demonstrated, among other things, that Liu’s
original statement that she had been in Brazil had been accurate,
as her passport had been issued in that country and was stamped
showing her entry into Cambodia.3 Thus, the IJ found that she
was “constantly adjusting her story” and “her oral testimony and

  3
    Although the IJ did not mention the point, Liu’s testimony
that a smuggler fabricated her alleged Brazil connection is hard
to believe because a smuggler likely would have known that a
desire for economic improvement could not support an asylum
application.

                                5
her written application for asylum were strictly a concocted and
invented story which had nothing to do with the original facts to
come to this country.” Id. at 200.4 Accordingly, the IJ denied
her application for asylum, withholding of removal, and
protection under the Convention Against Torture. Moreover,
the IJ ordered her removed from the country. Liu appealed from
the IJ’s order to the BIA which affirmed the IJ’s decision
without opinion on November 6, 2002. She did not file a
petition for review of the BIA’s decision and order.

       But Liu did not leave the United States, even though she
did not have legal status here and the IJ, affirmed by the BIA,
ordered her removed. Rather, she remained in this country,
married, and had two children. Subsequently, however, she
filed a motion to reopen and a request to file a successive
asylum application with the BIA predicated on her claim that if
removed to China she would be sterilized forcibly on account of

   4
    Sometimes we have been critical of IJs because they have
questioned the bona fides of an alien’s testimony on the basis of
very slight and unimportant inconsistencies in it. See, e.g.,
Gabuniya v. Attorney General, 463 F.3d 312, 322 (3d Cir.
2006). The situation here does not come within that category
because the fundamental changes in the reasons that Liu gave
for coming to this country and in describing where she
previously had been cannot be attributed to a clarification of her
memory and are highly significant. In this regard, we point out
that her claim that she had been in Brazil but left that country
because of economic conditions was inconsistent with her claim
that she came to the United States to avoid China’s birth control
policies.

                                6
the birth of her children in this country. Liu filed numerous
documents in support of her application, eleven she listed as
“Personal Evidence” and fourteen she listed as “Background
Information.”

        Liu’s application to reopen, however, was not successful
for on July 25, 2007, the BIA issued a comprehensive decision
and order denying her motion. In its decision the BIA pointed
out that both her motion to reopen and her request to file a
successive asylum application were untimely. Furthermore,
both applications depended on Liu demonstrating that there had
been changed conditions or circumstances in China between the
time of her original asylum and removal proceedings and the
filing of the motion to reopen, and that the evidence showing the
changed conditions previously had been unavailable and could
not have been discovered or presented at her earlier hearing.
The BIA concluded that Liu had not made these showings and
thus denied her motion. Moreover, the BIA concluded that Liu
did not demonstrate that she had a reasonable fear of persecution
if she returned to China. Furthermore, the BIA rejected Liu’s
contention that 8 U.S.C. § 1158(a)(2)(D) established an
independent basis for an alien filing an asylum application at
any time without regard for the time limitations otherwise
applicable to motions to reopen. Liu has filed a petition for
review of the July 25, 2007 decision and order, and we now
deny her petition.

       On this petition for review Liu makes four principal
points: (1) the BIA erroneously mischaracterized her claims by
finding that she based them on the birth of her children in this
country; (2) the BIA’s conclusion that she had not demonstrated

                               7
germane changed circumstances in China was wrong; (3) she
was eligible to file a successive asylum application because, in
her view, the material provisions in the Immigration and
Nationality Act (“INA”) “when read together could not be
clearer. Congress expressly stated that an applicant could move
to reopen without concern for time limitations, upon a showing
of changed conditions that were previously unavailable, in order
to apply for asylum.” Petitioner’s br. at 23 (emphasis in
original); and (4) she is eligible for asylum because she has a
reasonable fear of persecution if she returns to China.



   II. JURISDICTION AND STANDARDS OF REVIEW

       The BIA had jurisdiction under 8 C.F.R. § 1003.2(c) and
we have jurisdiction pursuant to 8 U.S.C. § 1252. There are two
standards of review applicable on this petition. First, we review
the denial of a motion to reopen for an abuse of discretion. See
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Second,
again using a deferential standard of review, we uphold the
BIA’s factual determinations if they are “supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478,
481, 112 S.Ct. 812, 815 (1992) (citation and quotation marks
omitted). In applying the second standard, we can reject the
BIA’s factual findings only if “any reasonable adjudicator
would be compelled to conclude to the contrary.” Id.; 8 U.S.C.
§ 1252(b)(4)(B).




                               8
                      III. DISCUSSION

       We reject all of Liu’s contentions. First, the BIA in
considering Liu’s motion to reopen understood the obvious
point that the birth of Liu’s children in the United States was a
change in her personal circumstances and not a change in
conditions in China. Thus, as we explain below, the question
became, as the BIA correctly recognized, “whether [Liu] has
successfully presented evidence which was previously
unavailable or undiscoverable, that shows a material change in
the coercive population control policy in China since her last
hearing.” App. at 2.

       Second, the record fully supports the BIA’s conclusions
that Liu did not demonstrate changed circumstances in China
and would not have a reasonable fear of persecution if she
returned to China. It is clear that under our standard of review
we must uphold these conclusions. In reviewing the BIA’s
findings we, of course, consider our nearly contemporaneous
opinion in Zheng v. Attorney General, 594 F.3d 260 (3d Cir.
2008), and find that the BIA’s decision was consistent with the
standards that we set forth in that case. In Zheng, the BIA did
not consider adequately the materials that the petitioners had
submitted with their applications to reopen, but in this case it
certainly did so.

       In this regard we take the unusual step of quoting the
BIA’s conclusions at length as they demonstrate the type of
findings that are sufficient under Zheng:

       [Liu] submits her affidavit claiming that upon

                               9
deportation to China she will likely be targeted
and forcibly sterilized due to the birth of her 2
United States citizen children. She also submits
her father-in-law’s letter dated February 20, 2007,
which says that the [Chinese Population and
Family Planning Law (“PFPL”)] is executed more
strictly in [her] hometown, Changle City, Fujian
Province. He mentions a villager who was forced
to have an abortion because she had already given
birth to a son. He believes that it is highly like
that his daughter will be sterilized by government
officials upon her return. [Liu] also submits
additional background evidence of country
conditions.

        Most notably, [Liu] contends that the 2005
and 2006 State Department Country Reports
establish a clear inference that conditions in China
have deteriorated drastically, and the use of
persecutive birth control methods is on the rise.
However upon closer examination, the reports
only indicate that the Chinese government
continues its population control policy and that
enforcement varies by province. Contrary to what
[Liu] argues, the 2006 Country Report does not
confirm for the first time that incidents of forced
sterilization occur in Fujian Province. It says that
Fujian officials ‘reportedly’ sterilized women.
[Liu] also presents the Congressional Executive
Commission on China’s 2006 Annual Report,
which describes new measures that the Chinese

                        10
government is taking to ensure enforcement of the
PFPL. Additionally, [Liu] contends that a March
14, 2006, letter from the ‘Administrative Office of
the National Population and Family Planning
Committee’ regarding the legal applicability and
use of laws toward the reproductive behavior of
Chinese citizens residing abroad shows that she
would be sterilized upon her return. However, as
addressed in the recent precedent[ial] decision,
Matter of J-W-S-, 24 I & N Dec. 185, 190-93
(BIA 2007), the Population and Family Planning
Commission of Fujian Province, in response to an
inquiry by the U.S. Consulate General in
Guangzhou, stated in an October 2006 letter that
children born abroad, if not registered as
permanent residents of China, are not considered
against the number of children allowed under
China’s family planning laws. Bureau of
Democracy Human Rights, and Labor, U.S. Dep’t
of State, China: Profile of Asylum Claims and
Conditions 30 (May 2007) [hereinafter 2007
Profile]. According to the 2007 Profile ‘a person
born in the United States to Chinese parents who
enters China on a U.S. passport . . . will be regard
as a U.S. citizen.’ By national regulation,
children born overseas are ‘not . . . counted’ for
birth planning purposes when the parents return to
China. In Matter of J-W-S- this Board concluded
that the Chinese government does not have a
national policy of requiring forced sterilization of
a parent who returns with a second child born

                        11
       outside of China. The background evidence
       presented in the instant case does not alter this
       assessment.

App. at 2-3 (certain internal citations omitted).5 After setting
out the foregoing findings, the BIA concluded in a finding our
standard of review requires us to accept, that “[n]one of the
evidence presented states or infers that overseas Chinese
returnees are subject to forced sterilization after giving birth to
2 children abroad.” Id. at 3.

       Ordinarily, as we pointed out in Zheng:

       [A] motion to reopen 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 [but] the 90-day
       limitation does not apply if the movant seeks
       reopening 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

   5
    It is significant that Chinese officials correctly understand
that children born in the United States to Chinese parents are
United States citizens. After all, it seems entirely logical that
the Chinese officials would exclude United States citizens when
considering its birth control policies, as such persons are likely
to live in this country, at least if not registered as permanent
residents of China.

                                12
       at the previous hearing.

Zheng, 549 F.3d at 265 (internal quotation marks and citations
omitted). Liu, however, filed more than a motion to reopen as
she included a successive application for asylum in her motion
to reopen when filing that motion; the two procedures are not
identical. In this regard Liu correctly concedes, as the BIA held,
that after completion of removal proceedings an alien must file
an asylum application in conjunction with a motion to reopen.
Nevertheless, though her argument is somewhat ambiguous on
the point, she may be contending that an alien is able to file a
successive asylum application predicated on a change in
personal circumstances, in her case the birth of her children in
this country, even though she does not demonstrate a change in
country conditions justifying a motion to reopen.

       In considering Liu’s possible argument based on a
change in personal circumstances, we are aware that 8 U.S.C. §
1158(a)(2)(D) permits an untimely or successive asylum
application based on “the existence of changed circumstances
which materially affect” the alien’s eligibility for asylum.
Furthermore, we acknowledge that these circumstances arguably
could include the birth of children born in this country, as the
term “changed circumstances” in 8 U.S.C. § 1158(a)(2)(D) is
not limited expressly to circumstances in the alien’s country of
nationality. But we are of the view that this provision must be
applied in harmony with 8 U.S.C. § 1229a(c)(7)(C) and the
regulations at 8 C.F.R. §§ 1003.2(c)(2), 1003.2(c)(3)(ii), and
1003.23(b). Accordingly, we conclude that 8 U.S.C §
1158(a)(2)(D) allows successive asylum applications only
within the 90-day reopening period for orders denying asylum

                               13
unless the alien can show changed country conditions on the
required accompanying motion to reopen.

       It seems plain that 8 U.S.C. § 1229a supports the
conclusion that the BIA reached as any other construction of the
INA would frustrate Congress’s intention in establishing a 90-
day reopening period subject to a changed country conditions
exception. Furthermore, our result is consistent with the intent
Congress expressed in 8 U.S.C. § 1158(a)(2)(C) to preclude an
alien from filing an asylum application if she “previously
applied for asylum and had such application denied.” Thus, we
are satisfied that in considering an application to file a
successive asylum application the BIA should apply 8 U.S.C. §
1229a(c)(7)(C)(ii), which provides that the 90-day time limit on
motions to reopen does not apply if the motion is to apply for
asylum or withholding of removal based on “changed country
conditions arising in the country of nationality.” In this case,
Liu did not meet that exacting standard, and thus the BIA
correctly denied her application.

        We have not overlooked the possibility that under the
BIA’s construction of the INA an alien applying initially for
asylum beyond the ordinary one-year limitation in 8 U.S.C. §
1158(a)(2)(B) after her arrival in the United States might be
successful in her application without showing a change in
country conditions after the time of her entry, whereas an alien
otherwise similarly situated would not be successful if she
previously unsuccessfully had applied for asylum. Nevertheless,
if we reached a contrary conclusion and did not subject an alien
citing changed personal circumstances in seeking asylum to the
numerical and time limitations on motions to reopen, as well

                              14
requiring that regardless of her changed personal circumstances
she demonstrates that there are changed country conditions, we
would not honor Congress’s purpose in the INA to avoid abuse
of the system. See Joaquin-Porras v. Gonzales, 435 F.3d 172,
179-80 (2d Cir. 2006).

       We observe in reaching our conclusions we have much
company because the Court of Appeals for the Second Circuit
within the last year squarely held that “an alien subject to a final
order of removal who files a successive asylum application
based only on changed personal circumstances must also file a
motion to reopen based on changed country conditions pursuant
to 8 C.F.R. § 1003.2(c)(3)(ii), when the ninety-day deadline has
passed for such a motion.” Jin v. Mukasey, 538 F.3d 143, 147
(2d Cir. 2008). Jin, in turn, cited opinions of four other courts
of appeals reaching the same result. Id. at 152.6 We also point
out that our result is consistent with the result the BIA
consistently reaches as it has held that a “successive asylum
application cannot be considered . . . except as part of a timely
and properly filed motion to reopen or one that claims that the
late motion is excused because of changed country conditions.”
In re C-W-L- 24 I. & N. Dec. 346, 354 (B.I.A. 2007).

       It is also significant that if we did not reach our result, we
would permit an alien who had failed to obtain asylum but
nevertheless illegally remained in the country following an order
of removal to extend her time for applying for asylum through
her control of her personal circumstances by marrying and

   6
   One of those opinions is a not precedential opinion in our
Court on which we do not rely.

                                 15
having children, even though it is clear that Congress intended
to limit successive applications for asylum. On this point, we
agree with the Court of Appeals for the Second Circuit, which
in Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006), stated that
such “gaming of the system in an effort to avoid deportation is
not tolerated by the existing regulatory scheme.” Furthermore,
if we detached a changed personal circumstance application for
asylum after an initial rejection of an asylum claim from the
limitations on motions to reopen, we in effect would circumvent
8 U.S.C. § 1229a(c)(7)(A), which provides that “[a]n alien may
file one motion to reopen proceedings under this section.”

        In sum, we defer to the BIA’s construction of the INA in
which it concluded that after completion of removal proceedings
an alien must file an asylum application in conjunction with a
motion to reopen and must meet the time and numerical
limitations on motions to reopen. We think it is clear that the
BIA’s construction of the INA is owed deference under
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 104 S.Ct. 2778 (1984). See Briseno-Flores v.
Attorney General, 492 F.3d 226, 228 (3d Cir. 2007). Moreover,
the BIA’s construction of the INA seems to us to be based on a
permissible reading of the statute. See INS v. Aguirre-Aguirre,
526 U.S. 415, 424, 119 S.Ct. 1439, 1445 (1999).

       For the foregoing reasons the petition for review of the
decision and order of the BIA entered July 25, 2007, will be
denied.




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