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


1-7-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3615




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3615


                                HE-DONG LYOU, a/k/a
                                    He-Dong Liu,
                                                 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. A70-836-550)

                           Immigration Judge: Miriam Mills


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

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

                                 (Filed: January 7, 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 He-

Dong Lyou, a/k/a He-Dong Liu, of a decision and order entered July 11, 2006, of the

Board of Immigration Appeals (“BIA”). Liu is a citizen of the People’s Republic of

China from Fujian Province who currently resides in the United States and is married to a

naturalized United States citizen. Liu entered the United States without inspection in

April or May 1993 prior to his marriage. Liu and his wife have three children born in this

country.

       After being served with an order to show cause initiating deportation proceedings

against him on May 25, 1993, Liu filed an asylum application on July 16, 1993. His

application, however, was futile because on his scheduled hearing date, December 8,

1993, although his representative was present, he did not appear and his representative

did not present good cause explaining his absence. Consequently an immigration judge

(“IJ”) on December 8, 1993, ordered him deported. Liu did not appeal from that order,

but, in fact, he was not deported as he simply ignored both the proceedings before the IJ

and the consequences of his unauthorized presence in this country.

       On November 11, 2005, Liu filed a motion to reopen and requested permission to

file a successive asylum application with the Immigration Court. In his motion he

indicated that he was seeking relief because there had been “changed factual conditions in

[his] country of nationality that were unavailable at the previous hearing [and thus] he

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deserve[d] a right to reopen his proceedings to have the new fact adjudicated.” App. at

48. He also indicated that “[n]umerical and time limitations do not bar a respondent from

filing a motion to reopen to apply or reapply for asylum or withholding of removal based

on changed circumstances arising in the country of nationality.” Id. His substantive basis

for relief was his view that he was eligible for asylum because he had both “an objective

and a genuine fear of persecution under Chinese birth control laws.” Id. The Attorney

General in his brief indicates that:

       Liu proffered as support with his motion to reopen the untranslated
       [Population and Family Planning Law (“PFPL”), John] Aird’s general
       affidavit, 2003 and 2004 country reports, unpublished decisions of the
       [BIA] and Court[s] of Appeals for the Second and Third Circuits, and his
       affidavit in which he admitted that he did not appear for his hearing twelve
       years ago, and had been ordered removed in absentia.

Respondent’s br. at 6. On January 9, 2006, an IJ denied the motion to reopen because,

Liu without good cause, had not appeared at the original asylum hearing and, accordingly,

had abandoned his claim for relief.

       Liu appealed to the BIA which on July 11, 2006, by written opinion dismissed the

appeal. In its decision the BIA acknowledged that there was no time limit “to apply for

relief [if the application] is based upon changed country conditions arising in the country

of nationality or the country to which removal has been ordered, if such evidence is

material and was not available and would not have been discovered or presented at the

previous hearing.” App. at 2. The BIA then indicated that Liu had not “established a

prima facie eligibility for relief under the” PFPL and thus had not established prima facie

                                             3
“eligibility for asylum, withholding of deportation or protection under the Convention

Against Torture.” Id. at 3-4. Thus, it dismissed the appeal. 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 under review on an abuse

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

        We have no quarrel with the legal basis underlying the BIA’s substantive

disposition of the matter holding that Liu did not establish a prima facie basis for relief.

If the BIA was correct in that conclusion then no matter what the change of conditions

had been in China since December 1993 the BIA rightly dismissed Liu’s appeal. As we

indicated in Sevoian v. Ashcroft, 290 F.3d 166, 169 (3d Cir. 2002), the BIA may deny a

motion to reopen if “the movant has failed to establish a prima facie case for the relief

sought . . . .”

        Nevertheless, we are constrained to vacate the decision and order of the BIA

entered on July 11, 2005, on the basis of the standards in our opinion in Zheng v.

Attorney General, No. 07-3122,       F.3d    ,       2008 WL 5006072 (3d Cir. Nov. 26,

2008). The decision of the BIA in Liu’s case did not cite or discuss a single document

that he submitted with his motion to reopen other than the PFPL itself and thus the BIA

simply did not address the record in the case. While we recognize that in Zheng we were

concerned with the record claimed by the petitioner to demonstrate a change in



                                                 4
circumstances, clearly our reasoning in Zheng applies to the record supporting a prima

facie basis for relief as well.

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

order of July 11, 2006, and remand the case to the BIA for further proceedings consistent

with this opinion in which it should consider the evidence that Liu presented and its

decision indicate that it has done so.




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