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


4-10-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4656




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-4656


                                   FENG YING LI,
                                           Appellant

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent


                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A77-234-282
                (U.S. Immigration Judge: Honorable Paul Grussendorf)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 10, 2008

     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.

                                 Filed: April 10, 2009
                                     ___________

                             OPINION OF THE COURT
                                  ___________

PER CURIAM.

      Feng Ying Li, a native and citizen of the People’s Republic of China, entered the

United States in September 1998. She appeared before an Immigration Judge (“IJ”) and

conceded that she was removable for entering without a valid entry document. See
Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C.

§ 1182(a)(7)(A)(i)(I)]. Li applied for asylum, withholding of removal, and relief under

the United Nations Convention Against Torture (“CAT”). She alleged that family

planning officials sought to forcibly sterilize her because she attempted to remove an

IUD. The IJ denied relief, finding Li’s allegations not credible. The Board of

Immigration Appeals (“BIA”) affirmed without opinion in September 2002. Although

the BIA granted voluntary departure, Li remained in the United States.

       In 2005, Li submitted a “Motion to File Successive Asylum Application,” claiming

that the birth of her second child in 2003 constituted a changed circumstance which

materially affected her eligibility for asylum. The Board denied the motion. Li filed a

petition for review. Before briefing was complete, we granted the government’s

unopposed motion to remand to the BIA. Our order directed the BIA to consider the

relationship between INA § 208(a)(2)(D) [8 U.S.C. § 1158(a)(2)(D)] and INA

§ 240(c)(7)(C)(ii) [8 U.S.C. § 1229a(c)(7)(C)(ii)]. (Li v. Att’y Gen., C.A. No. 05-4150).

       Aliens who apply for asylum must do so within one year after arrival in the United

States. See INA § 208(a)(2)(B) [8 U.S.C. § 1158(a)(2)(B)]. In addition, an alien who has

filed an asylum application that has been denied may not apply again for asylum. See

INA § 208(a)(2)(C) [8 U.S.C. § 1158(a)(2)(C)]. Pursuant to INA § 208(a)(2)(D) and its

implementing regulations, however, an alien may file a successive or untimely asylum

application based on, inter alia, “changed circumstances which materially affect the



                                             2
applicant’s eligibility for asylum.” The term “changed circumstances” arguably

encompasses changed personal circumstances, such as the birth of children in the United

States. See 8 C.F.R. § 1208.4(a)(4)(i)(A)-(B). The other statute to which we referred in

our remand order, INA § 240(c)(7)(C)(ii), excuses the 90-day deadline for filing a motion

to reopen where the alien seeks to apply for asylum based on “changed country conditions

arising in the country of nationality or the country to which removal has been ordered.”

INA § 240(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii) (providing that the limit on

filing “only one motion to reopen,” 8 C.F.R. § 1003.2(c)(2), does not apply where the

alien demonstrates “changed circumstances arising in the country of nationality”). Thus,

under this statutory and regulatory scheme, changed personal circumstances may permit

the filing of a successive or untimely asylum application under INA § 208(a)(2), but

cannot excuse the time and numerical limitations applicable to motions to reopen.

       On remand, the BIA concluded that “section 208(a)(2)(D) does not provide an

independent basis for filing a late motion to reopen to apply for asylum without the

showing of changed country conditions required by section 240(c)(7)(C) of the Act.”

Relying on its decision in In re C-W-L-, 24 I. & N. Dec. 346 (BIA 2007), the BIA

reasoned that INA § 240(c)(7)(C) would be rendered superfluous – in violation of the rule

that every clause of a statute should be given effect – if aliens subject to final orders of

removal could file successive or untimely asylum applications based solely on changed




                                               3
personal circumstances. Consequently, the BIA again denied Li’s motion. Li filed a

petition for review of the BIA’s decision.

       We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C.

§ 1252]. We review the BIA’s denial of a motion to reopen for abuse of discretion, Lu v.

Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001), and will not disturb the decision unless it was

arbitrary, irrational or contrary to law. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d

Cir. 2002).

       Li argues that INA § 208(a)(2)(D) provides aliens subject to a final order of

removal with an independent basis for filing an untimely asylum application based on

changed personal circumstances, without meeting the “changed country conditions”

requirement for reopening immigration proceedings under INA § 240(c)(7)(C)(ii). We

recently rejected a similar argument in Liu v. Attorney General, – F.3d –, 2009 WL

250102, at *4-5 (3d Cir. Feb. 4, 2009), holding that INA § 208(a)(2)(D) “allows

successive asylum applications only within the 90-day reopening period for orders

denying asylum unless the alien can show changed country conditions on the required

accompanying motion to reopen.” For the reasons stated in Liu, we conclude that the

BIA properly required Li to comply with the procedural requirements for filing a motion

to reopen.1


   1
     The BIA concluded that Li’s motion was untimely and rejected her attempts to satisfy
the exceptions to the time bar. In particular, the Board held that the birth of Li’s second
child constituted a change in personal circumstances and that the evidence she submitted

                                             4
      For the foregoing reasons, we will deny the petition for review.




was insufficient to establish changed country conditions. Li does not contest these
findings on appeal. She does, however, challenge the BIA’s conclusion that treaty
obligations under the CAT, the United Nations Protocol Relating to the Status of
Refugees, and the International Covenant on Civil and Political Rights supersede INA
statutory requirements for reopening and filing successive asylum applications. This
contention lacks merit. See Jin, 538 F.3d at 159-60 (rejecting similar argument because
the treaties are not self-executing and do not confer rights beyond those granted by the
implementing legislation, because there is a presumption against inferring individual
rights from international treaties, and because there was no evidence that the BIA’s
holding conflicts with principles of customary international law).

                                            5
