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


4-24-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1290




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-1290


                                    YI HUA CAO,
                                            Petitioner

                                           v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                         Respondent


                       On Petition for Review of a Final Decision
                         of the Board of Immigration Appeals
                                 BIA No. A72-498-797


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   April 12, 2007

                     Before: SMITH and COWEN, Circuit Judges,
                              and YOHN, District Judge*

                                (Filed: April 24, 2007)



                                       OPINION




      *The Honorable William H. Yohn Jr., Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation.
YOHN, District Judge.

       Yi Hua Cao petitions for review of the denial by the Board of Immigration

Appeals (“BIA”) of his third motion to reopen his immigration proceedings. Cao argues

that the BIA erred in refusing to reopen his proceedings, and that he meets the prima facie

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

Against Torture (“CAT”). Because Cao’s petition fails to establish the “changed

circumstances” exception to the time and numeric limitations contained in 8 C.F.R. §

1003.2(c)(2), we will deny the petition for review.

       Cao is a citizen of the People’s Republic of China. He claims to have fled China

in October 1991 to escape persecution arising out of China’s coercive family planning

policy. He entered the United States without a valid immigrant visa on March 26, 1993

(J.A. 392), and filed an application for asylum and withholding of removal.1 An

immigration judge (“IJ”) held a hearing on September 17, 1993. Cao testified that after

he left China in 1991, state officials threatened his wife with a forced abortion during her

first pregnancy. He also claimed that because she was unable to pay a fine, she was

forced to have a contraceptive device implanted after the birth of their first child in China.

However, he later testified that the fine had been paid and that his family, not the state,

had decided to have the device surgically implanted. The IJ denied Cao’s application

because Cao’s cross-examination and his submitted documentation “devastat[ed]” his



1
 Cao’s wife did not join him in the United States until December of 1998. (J.A. 233.)

                                               2
credibility. (J.A. 291.)

       Cao appealed to the BIA, again alleging fear of persecution due to China’s family

planning policy. On December 2, 1998, the BIA denied Cao’s appeal. The BIA found

merit to the IJ’s adverse credibility finding and criticized Cao for failing to address the

credibility issue on appeal.

       Cao filed his first motion to reopen on December 29, 1998. Cao argued that the IJ

erred by wholly disregarding his family planning testimony. On June 30, 1999, the BIA

denied Cao’s motion, concluding that Cao had not established prima facie eligibility of

asylum based on the new definition of “refugee” announced in In re X-G-W-, 22 I. & N.

Dec. 71 (BIA 1998). Again, the BIA emphasized the IJ’s adverse credibility finding and

Cao’s failure to address the credibility issue either on appeal or in his motion to reopen.

       Cao filed his first motion to reconsider on June 8, 2001 based on a change in the

law effectuated by the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”). In an affidavit submitted with his motion, Cao stated he was eligible

for asylum status because he and his wife would be forcibly sterilized upon their return to

China. On August 10, 2001, the BIA denied Cao’s motion because it was untimely.

       Cao filed his second motion to reopen on October 30, 2001, claiming a

“substantial change” due to China’s coercive birth control policy. Cao alleged that after

he and his wife sent their second child to live with Cao’s brother in China, state officials

ordered Cao to return to China to undergo forced sterilization. On April 5, 2002, the BIA

denied Cao’s motion because “[e]ven assuming for purposes of this motion that this

                                              3
would be a changed circumstance . . . the respondent’s evidence fails to establish that the

change would lead to persecution.” (J.A. 195.)

       Cao filed his second motion to reconsider on May 3, 2002 based on his fear of

future prosecution under China’s coercive birth control policy. As a “new circumstance,”

petitioner alleged that the Family Planning Office had ordered him to return for forced

sterilization. On June 6, 2002, the BIA denied Cao’s motion because the regulations

permitted only one motion to reconsider in any case previously the subject of a final

decision by the BIA. See 8 C.F.R. § 1003.2(b)(2).

       On May 19, 2005, nearly seven years after the BIA denied Cao’s appeal and after

two failed motions to reopen and two failed motions to reconsider, Cao filed this, his third

motion to reopen his removal proceedings, alleging changed country conditions and new

facts previously unavailable.2 First, through phone conversations with his relatives in

China, Cao had recently learned that the People’s Family Planning Law (“PFPL”) had

been enacted in September of 2002. Second, Cao’s relatives informed him that since late

2004, local cadres had announced the new law several times at meetings within his

village and pregnant women had been forced to have abortions and sterilization

procedures. Cao, who at this point had four children, claimed that he and his wife were in

direct violation of the PFPL with the birth of their second child in 2000. Cao argued that

2
 To support his claim of changed country conditions in his third motion to reopen, Cao offered
(1) his own affidavit; (2) an affidavit of John Aird dated September 20, 2004, prepared for the
Executive Office for Immigration Review of the United States Department of Homeland
Security; (3) testimony of John Aird before the Congressional Executive Commission on China
dated September 23, 2002; and (4) 2003 and 2004 State Department Country Reports for China.

                                               4
these new facts constituted a change in country conditions due to (1) an upgrade of

punishment under the PFPL “from civil liability to legal punishment” and (2) the fact that

the PFPL had recently transformed from “a sporadic policy of coercive birth control at the

local level” into “a national, uniformly enforced law which citizens must obey.” (J.A.

13.)

       The BIA denied Cao’s third motion to reopen on July 27, 2005. First, the BIA

stated that “to the extent that [Cao] is arguing that the birth of his two youngest children

in the United States would now be a basis for persecution, [Cao] made this same

argument after the birth of his second child on June 26, 2000, and it was rejected by [the

BIA].” (J.A. 2.) Second, the BIA reported that Cao’s alleged violation of China’s birth

control policy had already been considered during his proceedings. Third, the BIA

reviewed the legal liability provisions in the PFPL and noted that citizens who gave birth

outside the one or two child limits were only required to pay a “social compensation fee.”

Notwithstanding the testimony of John Aird, the BIA concluded that Cao had not

demonstrated that the implementation of the PFPL in his hometown constituted a change

of circumstances.3

       We review the BIA’s decision to deny the third motion to reopen under the “highly

deferential” abuse of discretion standard, Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.



3
 The BIA had jurisdiction under 8 C.F.R. § 1003.2(c), which grants the BIA authority to reopen
or consider any case in which it rendered a decision. We have jurisdiction under 8 U.S.C. §
1252(b)(1).

                                               5
2004), and its findings of facts for substantial evidence, Sevoian v. Ashcroft, 290 F.3d

166, 174 (3d Cir. 2002). Generally, motions to reopen are granted only under

“compelling circumstances,” Guo, 386 F.3d at 562, and we do not disturb the BIA’s

determination unless it is “arbitrary, irrational, or contrary to law.” Sevoian, 290 F.3d at

174.

         In most cases, a petitioner may file only one motion to reopen removal

proceedings, and that motion must be filed no later than 90 days after the date on which

the final administrative decision was rendered in the proceedings sought to be reopened.

8 C.F.R. § 1003.2(c)(2); Filja v. Gonzales, 447 F.3d 241, 252 (3d Cir. 2006). However,

this time and number requirement does not apply to aliens seeking to reapply for asylum

or withholding of deportation based upon changed circumstances arising in the country to

which deportation has been ordered, so long as evidence supporting the motion is material

and was not available and could not have been discovered or presented at the previous

hearing. 8 C.F.R. § 1003.2(c)(3)(ii); Johnson v. Ashcroft, 286 F.3d 696, 704 (3d Cir.

2002).

         Cao claims that he satisfied the changed circumstances exception, 8 C.F.R. §

1003.2(c)(3)(ii), by citing the implementation of the PFPL in his village and the law’s

upgrade of punishment for couples who have had more than one child. However, we find

that the BIA did not abuse its discretion in its analysis. Contrary to Cao’s assertion that

the possibility of punishment now includes imprisonment, forced abortions, and

sterilization, the BIA cited to provisions of the PFPL that require couples with an

                                              6
unapproved child to pay a social compensation fee. The State Department documents

submitted by Cao corroborate the BIA’s determination, and the 2004 report, in particular,

suggests that the PFPL enjoys relaxed enforcement in rural areas. (J.A. 127.) While, the

Aird affidavit does provide some contradictory evidence, elsewhere it states that since the

late 1970’s, “three cycles of relaxing and tightening have occurred . . . the basic policy

has remained largely unchanged.” (J.A. 63.) Further, the relevance of the Aird affidavit

is questionable, as it was neither prepared specifically for Cao nor particularized to the

circumstances of his village. See Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 274

(2d Cir. 2006). Finally, while Cao does present some evidence that the PFPL is currently

being enforced in his village, the BIA noted that Cao had repeatedly argued his alleged

violations of the birth control policy both before the IJ and the BIA during his

proceedings. Cao’s reliance on the PFPL is merely updated information that reinforces

his thirteen-year old claim of persecution and fear of forced sterilization by Chinese

government officials. Thus, the BIA did not abuse its discretion by holding that Cao

failed to establish a change in country conditions.

       Cao also argues the merits of his application by alleging eligibility for asylum,

withholding of removal, and relief under CAT. However, before the BIA can consider

the merits of his motion to reopen, Cao must first demonstrate a change in country

conditions. 8 C.F.R. § 1003.2(c)(3)(ii); Wang, 437 F.3d at 274. Since Cao did not satisfy

this exception to the time and numerical limit for a motion to reopen, the BIA

appropriately denied his third motion to reopen. Because the BIA’s determination to

                                              7
deny Cao’s third motion to reopen is not arbitrary, irrational or contrary to law, see

Sevoian, 290 F.3d at 174, we will deny Cao’s petition for review.




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