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


1-31-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3295




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-3295


                                    YAN YUN QIU,
                                             Petitioner

                                           v.

                   ATTORNEY GENERAL OF THE UNITED STATES,
                                                      Respondent


                         On Petition for Review of an Order of the
                             Board of Immigration Appeals
                                   BIA No. A95-864-061
                   (U.S. Immigration Judge: Honorable Annie S. Garcy)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                               September 11, 2006
       Before: SCIRICA, Chief Judge, SLOVITER and BARRY, Circuit Judges

                               (Filed January 31, 2007 )


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Yan Yun Qiu petitions for review of the Board of Immigration Appeals’ June 2,

2005, order denying her motion to reopen her case. We will deny the petition and affirm

the BIA’s order.
                                             I.

       Qiu, a native and citizen of China, entered the United States without being

inspected by an immigration officer in August 2001. In June 2002, she filed an asylum

application contending she had been persecuted on account of her political opinion, she

had been forced by Chinese authorities to have an abortion in 1999, and she would be

fined, jailed, and tortured by the Chinese government for her illegal departure if she

returned to China. At a hearing before an Immigration Judge in October 2002, Qiu

conceded her removability. At a hearing in November 2003, another IJ denied Qiu’s

applications for asylum, withholding of removal, and protection under the Convention

Against Torture. The IJ ordered Qiu removed to China.

       In her November 6, 2003 decision, the IJ stated Qiu’s entire application hinged on

whether Qiu could credibly show she was subjected to a forced abortion in China in 1999.

In support of that contention, Qiu submitted a September 18, 2002 letter from a certified

nurse midwife indicating Qiu had given birth to a daughter in the United States and had

reported having a pregnancy forcibly terminated in China on August 13, 1999. The IJ

also considered a 1998 State Department report, China: Profile of Asylum Claims and

Country Conditions. The IJ found Qiu’s contention lacked credibility because her

account was inconsistent with the Profile and not supported by sufficient evidence, and

because she found Qiu not forthcoming about who had paid to have her smuggled into the

United States. The IJ also declined to exercise her discretion in Qiu’s favor, stating there



                                             2
was no evidence either that Qiu would be forbidden from having a second child if

deported to China, or that Qiu and her husband even wanted to have more children. The

IJ also stated Qiu had mentioned no fear of torture in the form of sterilization if deported

to China, and any such contention would have been unsupported because Qiu only had

one child.

         Qiu appealed the IJ’s decision to the BIA on November 28, 2003. On February 14,

2005, the BIA affirmed without opinion. On March 18, 2005, Qiu filed a motion to

reopen, in support of which she attached her marriage certificate and the birth certificate

of her second child, a son (born in the United States on March 2, 2005). On June 2, 2005,

the BIA issued a per curiam order denying the motion to reopen. The BIA found Qiu had

failed to make a prima facie showing of eligibility for asylum because her motion was not

accompanied by evidence to support her fear of persecution in China as a result of the

birth of children in the United States. Furthermore, the BIA found the Profile did not

“reflect a national policy by the Chinese government regarding the application of its

coercive population control policies to parents of foreign-born children” or “establish that

any sanctions that have been imposed on parents of foreign-born children at the local

level rise to the level of persecution.” (A.R. 2.) Qiu petitions for review of the BIA’s

order.

         The BIA had jurisdiction over Qiu’s motion to reopen under 8 C.F.R. § 1003.2(c).

We have jurisdiction over her timely petition for review under 8 U.S.C. § 1252.



                                              3
       Motions to reopen are granted “only under compelling circumstances.” Guo v.

Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). The Supreme Court has noted the Attorney

General has broad discretion to grant or deny motions to reopen, and that they are

“disfavored . . . . This is especially true in a deportation proceeding, where, as a general

matter, every delay works to the advantage of the deportable alien who wishes to remain

in the United States.” INS v. Doherty, 502 U.S. 314, 323 (1992). Accordingly, we review

the denial of a motion to reopen for abuse of discretion, and will only disturb the BIA’s

decision if it is arbitrary, irrational, or contrary to the law. Guo, 386 F.3d at 562.

                                              II.

       Qiu contends the BIA erred as a matter of law by applying an erroneous burden of

proof standard to determine whether she had made a prima facie showing of a well-

founded fear of persecution. Specifically, Qiu contends the BIA “required Qiu to prove

that there exists a pattern or practice of persecution of persons situated similarly to

herself, rather than showing a ‘reasonable likelihood’ of proving such a claim.” (Petr.’s

Br. 5.) An individual seeking to have his or her immigration proceedings reopened by the

BIA is required to make a prima facie case of eligibility for asylum. Caushi v. Attorney

General, 436 F.3d 220, 231 (3d Cir. 2006).1 In order to make a case for asylum, the

applicant must both “establish[]” that there is a “pattern or practice” of persecution on




   1
   The BIA “has discretion to deny a motion to reopen even if the party moving has
made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a) (2006).

                                               4
account of race, religion, nationality, membership in a particular social group, or political

opinion of persons similarly situated to the applicant in the applicant’s home country, and

“establish[]” his or her own inclusion in and identification with that group of persons

“such that his or her fear of persecution upon return is reasonable.” 8 C.F.R. §

1208.13(b)(2)(iii) (2006).2 A prima facie case of eligibility for asylum “‘requires the

applicant to produce objective evidence showing a reasonable likelihood that he can

establish [that he is entitled to relief].’” Guo, 386 F.3d at 563 (quoting Sevoian v.

Ashcroft, 290 F.3d 166, 173 (3d Cir. 2002) (alterations in original)).

       Qiu contends the BIA engaged in “subterfuge” and held her motion to an

excessively rigid standard, requiring her to make the ultimate showing of eligibility for

asylum, rather than a prima facie showing. Qiu relies heavily on Guo, in which we found

the BIA abused its discretion in denying a motion to reopen. See 386 F.3d at 564. In Guo

the BIA had stated the petitioner “ha[d] not established a well-founded fear that a

reasonable person in her circumstances would fear persecution.” Id. at 563 (emphasis

added). We accordingly found the BIA had improperly required the petitioner to

“proceed to the end-game” of establishing eligibility for asylum, id. at 564, instead of

only requiring a prima facie showing of eligibility. In contrast, the BIA’s order here

stated Qiu had “failed to demonstrate that she is prima facie eligible for asylum.” (A.R.




   2
    Forced abortion and forced sterilization constitute persecution on account of political
opinion. 8 U.S.C. § 1101(a)(42) (2000).

                                              5
2.) (emphasis added). “Agency action is entitled to a presumption of regularity.”

Kamara v. Attorney General, 420 F.3d 202, 212 (3d Cir. 2005). Qiu’s arguments are

insufficient to overcome that presumption and show the BIA held Qiu’s motion to reopen

to a higher burden of proof standard than what is required for a prima facie showing. The

BIA did not abuse its discretion.

       Qiu also contends the BIA acted in an arbitrary and capricious manner by failing to

fully consider evidence in the record, principally evidence in the Profile on coercive

population control practices by the Chinese government, in light of her having two

children born in the United States. Qiu initially cites the Profile in support of a prima

facie showing of eligibility for asylum based on persecution in the form of coercive

population control practices such as forced abortion and sterilization, as well as

persecution in the form of economic deprivation, particularly because Qiu has two

children born in the United States. But she also criticizes the Profile’s currency and

accuracy. Again, Qiu relies heavily on Guo, in which we found the BIA abused its

discretion in finding the petitioner’s evidence insufficient to make a prima facie case of

eligibility for asylum. See 386 F.3d at 559. Again, that reliance is misplaced. In Guo, we

noted proof of a well-founded fear of persecution entails both subjective and objective

inquiries, and the petitioner had provided as evidence of the objective element an

affidavit from a specialist on Chinese demographic developments and population policy,




                                              6
John Aird.3 Id. at 565–66. We termed the affidavit’s critique of the Profile “Guo’s

principal evidence” on coercive population control practices in China, and concluded that

“where a motion to reopen is accompanied by substantial support of the character

provided by the . . . affidavit,” the BIA’s reliance on the Profile is insufficient to

undermine a petitioner’s prima facie showing.4 Id. at 565. Qiu provides nothing in

support of her motion that is comparable to that affidavit. In any event, reliance on the

“oft-cited Aird affidavit,” Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), in a case such

as Qiu’s has been undermined by the BIA.5 The only new fact Qiu presented in support


   3
     The petitioner in Guo also attached to her motion to reopen the following: a previous
BIA decision in favor of a similarly-situated Chinese applicant; a copy of her second
asylum application (which claimed fear of persecution in the form of forced abortion or
sterilization, whereas her original asylum application had claimed fear of religious
persecution); the birth certificate of one child born after the BIA’s initial determination,
as well as a letter from an obstetrician describing her current pregnancy; and a marriage
certificate. 386 F.3d at 560. Moreover, our grant of Guo’s petition was based in part on
the fact that the BIA’s rejection of her motion to reopen had relied on an IJ’s adverse
credibility finding on Guo’s claimed fear of religious persecution (in support of her first
asylum application). Whereas Qiu’s motion to reopen is premised on essentially the same
facts (save the birth of her son) and arguments as her original application for asylum,
Guo’s motion to reopen was premised on a new set of facts and theory of persecution.
   4
     In Guo, we also agreed with the petitioner that the Profile might “buttress her prima
facie case.” 386 F.3d at 566. But the affidavit was Guo’s primary evidence, and Qiu
cannot rely solely on the Profile here to make a prima facie showing.
   5
     The BIA in In re C– C–, 23 I. & N. Dec. 899 (2006), has persuasively argued against
further reliance on the Aird affidavit where petitioners for asylum contend they will be
subject to persecution in the form of forced abortion or sterilization in China for having
foreign-born children. As the BIA notes, Aird (who retired from the Census Bureau more
than twenty years ago and died in October 2005) did not base his affidavit on personal
knowledge, but rather on documents mainly from the 1980s and 1990s that are in conflict
                                                                                (continued...)

                                               7
of her motion was the birth of her son, which the BIA took into consideration.6 The fact

that Qiu has two foreign-born children is not sufficient for her to make a prima facie

showing of asylum eligibility. As the Supreme Court has noted, BIA determinations are

to be upheld if they are supported by reasonable, substantial, and probative evidence, and

reversed only if “the evidence not only supports [a contrary] conclusion, but compels it.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). The record evidence considered by

the BIA in denying Qiu’s motion to reopen compels no such conclusion. We conclude

the BIA fully considered the record evidence and did not abuse its discretion.

                                            III.

       We will deny the petition and affirm the BIA’s order.




   5
     (...continued)
with the more recent 2005 State Department report on conditions in China. Id. at 901–02.
Further, the Aird affidavit “only briefly discusses” the State Department’s 2004 report “as
it relates to citizens returning to China with foreign-born children.” Id. at 201; see also
Wang, 437 F.3d at 275, 274 (noting the Aird affidavit had been submitted in more than
200 cases since 1993, and rejecting reliance on it where the affidavit “was not prepared
specifically for petitioner and is not particularized as to his circumstances”).
   6
     Qiu also attached a copy of her marriage certificate, but the IJ and the BIA were
already aware of the marriage.

                                             8
