                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1420




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NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                               Case No: 06-1420

                                TIAN HUA WU,

                                        Petitioner


                                        v.

              ATTORNEY GENERAL OF THE UNITED STATES


                   On Petition for Review of a Final Decision
                     of the Board of Immigration Appeals
                             BIA No. A73-175-068
                     Immigration Judge Donald V. Ferlise


               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                June 7, 2007

               Before: SMITH and GREENBERG, Circuit Judges,
                         and POLLAK, District Judge*

                              (Filed: June 7, 2007 )


                                   OPINION



      *
       The Honorable Louis H. Pollak, Senior District Judge for the Eastern
District of Pennsylvania, sitting by designation.
                                        1
SMITH, Circuit Judge.

      Tian Hua Wu petitions for review of an order by the Board of Immigration

Appeals (BIA), which adopted and affirmed a decision by the Immigration Judge

(IJ) denying Wu’s untimely motion to reopen.1 For the reasons set forth below, we

will deny the petition for review.

      Wu entered the United States in December 1993. He filed a timely

application for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT) on May 5, 1994, alleging persecution on the basis of

China’s coercive population control policy. Wu claimed that he and his wife had

three children and that he had been fined because they had more than one child.

On June 12, 1996, Wu was personally served a notice to show cause why he

should not be deported and he was directed to appear at a hearing before an IJ on

January 23, 1997. Despite the fact that Wu was personally served with notice of

the date and time of the hearing, Wu failed to appear before the IJ. As a result, the

IJ concluded that Wu had abandoned his claim, and ordered Wu deported.

      Eight years later, in April of 2005, Wu moved to reopen his deportation

      1
       The IJ exercised jurisdiction pursuant to 8 C.F.R. §§ 208.2, 1208.2. The
BIA exercised appellate jurisdiction under 8 C.F.R. § 1003.1(b). Because the
denial of a motion to reopen is a final order, we have appellate jurisdiction under 8
U.S.C. § 1252(a). See Sevioan v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).
                                          2
proceeding. He asserted that, regardless of the untimeliness of his motion, the IJ

could reopen his proceeding because his claim was based on China’s coercive

population control policy. Wu claimed that he was prima facie eligible for a grant

of political asylum because of the fact that he had multiple children. He relied on

Matter of X-G-W, 22 I. & N. Dec. 71 (BIA 1998), which had announced a new

policy in the wake of a conflict between substantive provisions in the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and

regulations regarding motions to reopen that pertain to finality in immigration

decisions. Id. at 73. That new policy allowed aliens to pursue untimely motions

to reopen if they were based on coercive population control policies.

      The IJ denied Wu’s motion to reopen as it was not accompanied by the

requisite documentary evidence, and was untimely. In addition, the IJ concluded

that Wu had failed to demonstrate a change in country conditions warranting

reopening as the coercive population control policy was the basis of Wu’s initial

application for asylum. Prima facie eligibility for asylum was also lacking, the IJ

explained, because there was no corroborating evidence that Wu had been married

or that he had fathered the children he claimed. The IJ further explained that Wu’s

reliance on Matter of X-G-W was misplaced as it had been superseded by In re G-

C-L, 23 I. & N. Dec. 359 (BIA 2002). In G-C-L, the BIA rescinded the policy of

                                         3
allowing untimely motions to reopen based on coercive population control

policies. The BIA explained in In re G-C-L that this policy was no longer

warranted inasmuch as aliens had been afforded an opportunity to seek relief in

the five years since the IIRIRA’s enactment and the interests of finality in

immigration proceedings took precedence. Id. at 362.

      Wu appealed to the BIA. It adopted and affirmed the decision of the IJ.

After noting the various grounds cited by the IJ for denying the motion to reopen,

the BIA rejected Wu’s contention that his untimely motion warranted sua sponte

reopening. It found no merit in Wu’s arguments.

      Wu filed a timely petition for review.2 He continues to rely on the Matter of

X-G-W as authority for the relief he seeks and contends that the BIA erred by not

recognizing that his multiple children make him prima facie eligible.3

      We find no basis for granting the petition for review. Wu’s reliance on


      2
        We employ a bifurcated approach in reviewing the denial of a motion to
reopen. Korytnyuk v. Ashcroft, 396 F.3d 272, 285 (3d Cir. 2005). We review any
findings of fact for substantial evidence and the ultimate denial for an abuse of
discretion. Id. at 280, 285. We may not disturb the BIA’s decision unless it is
found “to be ‘arbitrary, irrational or contrary to law.’” Tipu v. INS, 20 F.3d 580,
582 (3d Cir. 1994) (citation omitted).
      3
       Wu wisely does not challenge the BIA’s refusal to sua sponte grant his
motion to reopen. See Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003)
(concluding that we lack jurisdiction to review a denial by BIA to sua sponte grant
a motion to reopen under 8 C.F.R. § 1003.2(a)).
                                          4
Matter of X-G-W is misplaced. It was superceded by In re G-C-L. As a result, the

policy announced in Matter of X-G-W of liberally reopening an alien’s asylum

proceeding based on a coercive population control policy does not apply to Wu’s

motion to reopen, which was filed in 2005 after the BIA rescinded the policy in In

re G-C-L. Wu asserts that his multiple children make him prima facie eligible for

asylum. The BIA, however, acknowledged the IJ’s finding that there was no

evidence that Wu had multiple children, and therefore concluded that there was no

merit to Wu’s claim. This determination was not an abuse of discretion. The

record contains no more support for this claim than Wu's asylum application

listing three names as children. The age and gender of these alleged children, as

the IJ noted, were never mentioned or provided.

      Because the BIA did not err in affirming the IJ’s denial of Wu’s motion to

reopen, we will deny the petition for review.




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