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


6-11-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1488




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                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                        ___________

                                        No. 08-1488
                                        ___________

                                        BIN CHEN,
                                               Petitioner
                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent
                     ____________________________________

                             On Petition for Review of an Order
                            of the Board of Immigration Appeals
                                  Agency No. A77 551 032
                            Immigration Judge: Eugene Pugliese
                         ____________________________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                       June 11, 2009

               Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                                (Opinion filed: June 11, 2009)
                                       ___________

                                         OPINION
                                        ___________

PER CURIAM

       Bin Chen petitions for review of a Board of Immigration Appeals (“BIA”)

decision denying his motion to reopen his immigration proceedings. We will deny the

petition for review.
       Chen is a native and citizen of China. He entered the United States in 1999 and

sought asylum and related relief because of persecution on account of his opposition to

China’s family planning policy. He was denied relief, but was granted voluntary

departure. The BIA dismissed his appeal on October 8, 2002. Chen filed a motion to

reopen which was denied on February 12, 2003.1 Chen filed a subsequent motion to

reopen, based on the following facts: Chen divorced his first wife, who apparently still

lived in China, and married a Chinese woman in the United States who already had three

children. The couple then had a child together in 2007. Chen’s motion asserted that

through phone calls with family and friends in China, he had learned that forced abortions

and sterilizations had been on the rise. He asserted that Chinese family planning officials

were aware that he had remarried and that his new wife was expecting a child, and stated

that he would have to comply with family planning procedures upon his return to China.

Chen asked that the proceedings be reopened to consider his claims for asylum and

withholding of removal.2

       The BIA denied the motion on January 25, 2008, finding that the motion exceeded



   1
    Chen claimed to have presented “new evidence” with his first motion to reopen to
corroborate his claims, but the Board found the evidence could have been presented at his
previous hearing. A.R. 385, 377.
   2
    In his opening brief in this Court, Chen argues that he is also eligible for relief under
the Convention Against Torture. Because Chen did not raise this claim in his motion to
the BIA, it is unexhausted and we do not consider it further. Abdulrahman v. Ashcroft,
330 F.3d 587, 594-95 (3d Cir. 2003) (petitioner must raise each ground for relief to
preserve right to judicial review).

                                              2
both time and number limitations for motions to reopen. Chen filed a timely petition for

review.3

       This Court reviews the denial of a motion to reopen for an abuse of discretion.

Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, the Court may

reverse BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v.

Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). An alien generally may file only one motion

to reopen, and must file the motion with the BIA “no later than 90 days after the date on

which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The time

and number requirements are waived for motions that rely on evidence of “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

proceeding.” 8 C.F.R. § 1003.2(c)(3)(ii). Changes in personal circumstances do not

constitute changed country conditions, and thus do not excuse a motion’s untimeliness,

but such changes may be relevant to a claim that an alien would be persecuted under

changing Chinese family planning laws. Zheng v. Attorney General, 549 F.3d 260, 267

(3d Cir. 2008).

       The BIA here found that Chen did not submit evidence that showed a material

change in the family planning policies of Fujian Province. Chen submitted a statement



   3
    The petition for review was stayed pending the Court’s decisions in several similar
cases. Those cases have been decided, and the parties have filed supplemental briefs
addressing those decisions.

                                              3
from his brother in China, dated September 26, 2007, A.R. 92-95; claiming that a

neighbor was subjected to forcible abortion, but the BIA noted that he had not submitted

an affidavit from the neighbor herself, or any other evidence to support this claim. The

BIA also was troubled that the affidavit was a copy, and that Chen had failed to submit

the original. Chen also submitted a notice from the Residents Committee of Shuibu,

Gulou District, Fuzhou City, dated September 25, 2007, A.R. 100-01; which was also a

black and white copy, and did not contain an original seal. The BIA noted that Chen had

submitted numerous other documents, see A.R. 33-36 (list of documents produced); some

of which had been considered by the Board in other cases, and which the BIA had found

not to show a material change in the family planning policy of Fujian Province. The BIA

also noted that the IJ had made an adverse credibility finding which “has never been

overturned and remains the law of the case.” 4 The BIA then rejected Chen’s alternative

argument that he was not subject to the 90-day deadline because he was filing a

“successive asylum application” under 8 U.S.C. § 1158(a)(2)(D), which, according to

Chen, allowed him to file a new application based solely on changed personal



   4
     Chen argues in his initial brief here that the “BIA abused its discretion by implying
that Petitioner’s alleged lack of credibility in his prior removal proceedings somehow
undermines his fear of future persecution under China’s coercive population control
policies.” Petitioner’s Brief at 19. In Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004),
we held that “[t]he legitimacy of an initial credibility determination does not . . . justify
denial of all subsequent applications for asylum.” However, we do not believe that the
BIA’s decision here rests on a prior adverse credibility finding. Rather, the BIA found
that the evidence Chen submitted with his motion to reopen was insufficient to establish
changed country conditions.

                                              4
circumstances.

       As an initial matter, we note that Chen’s argument that he may file a successive

asylum application without regard to the limits applicable to a motion to reopen is

foreclosed by our decision in Liu v. Attorney General, 555 F.3d 145 (3d Cir. 2009), in

which we held 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. Id. at 152. We also reject Chen’s argument that his

case is similar to Zheng v. Attorney General, 549 F.3d 260, 269-71 (3d Cir. 2008), where

we vacated the denial of motions to reopen based on the BIA’s failure to discuss the

evidentiary record. Here, the BIA referred in its decision to nearly all of the background

information provided by Chen, and concluded that it was “inadequate to demonstrate

changed country conditions ‘arising the country of nationality’ . . . .” A.R. 4.

       Chen argues:

       The BIA simply did not discuss or review twenty three pieces of evidence
       including dispositive documents from the Chinese Government (JA
       131-175), 8 newspaper articles (JA 309-375), and a recounting from
       someone who was sterilized for violating the Family Planning Policy
       outside of China. JA 296-308. That is nearly 122 pages of background
       information that the BIA simply did not review.

Petitioner’s Supplemental Brief at 7. We disagree. The BIA decision lists all of the

evidence that Chen points out, aside from the “recounting from someone who was

sterilized . . . .” We have no reason to believe that the BIA failed to review the

information. Although we have remanded where the Board has “fail[ed] to discuss most

                                              5
of the evidentiary record,” see Zheng, 549 F.3d at 269; we do not require the Board “to

write an exegesis on every contention” raised by the movant, see Sevoian v. Ashcroft, 290

F.3d 166, 178 (3d Cir. 2002). The BIA here examined the background evidence

submitted, and determined, as it did in Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007)

that the evidence did not show a material change in family planning policy in Fujian

Province. Substantial evidence supports the BIA’s conclusions.

      Accordingly, we will deny the petition for review.




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