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


2-20-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5093




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 05-5093

                                   XIU CAI HONG,

                                           Petitioner
                                            v.

               ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent



                         On Petition for Review of a Final Order
                            Board of Immigrations Appeals
                                  BIA No. A73 642 356


                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                February 15, 2007

                   Before: SMITH and FISHER, Circuit Judges,
                            and DOWD, District Judge*

                               (Filed: February 20, 2007)


                                       OPINION


SMITH, Circuit Judge.



      *
       The Honorable David D. Dowd, Jr., Senior United States District Judge for
the Northern District of Ohio, sitting by designation.
                                           1
       Xiu Cai Hong petitions for review of the denial by the Board of Immigration

Appeals (BIA) of his second motion to reopen his immigration proceeding.1 We review

any findings of fact for substantial evidence and the ultimate denial for an abuse of

discretion. See Korytnyuk v. Ashcroft, 396 F.3d 272, 280 (3d Cir. 2005). An abuse of

discretion will be found if the denial of a motion to reopen “is arbitrary, irrational, or

contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Motions to

reopen are generally disfavored. Abudu v. INS, 485 U.S. 94, 107 (1988).

       Hong is a native and citizen of the People’s Republic of China (PRC). Hong fled

China in 1991, eventually entering the United States in April 1994. He filed a timely

application in November 1994, seeking political asylum and withholding of removal.

Hong alleged persecution on the basis of his involvement in a 1989 student democracy

movement, and his opposition to the fact that his girlfriend was forced to abort their child

in order to comply with the PRC’s coercive population control program. The INS denied

the application, issued an Order to Show Cause and Notice of Hearing in May 1995, and

referred the matter to an Immigration Judge (IJ). In March 1996, an IJ denied Hong’s

application for relief and made an adverse credibility determination, finding that Hong’s




       1
       The BIA exercised authority to review Hong’s motion to reopen pursuant to
8 C.F.R. § 1003.2(a). We have jurisdiction to review the BIA’s decision pursuant
to 8 U.S.C. § 1252(a). See Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002)
(observing that the denial of a motion to reopen is a final order of removal for
purposes of § 1252).
                                               2
testimony “was lacking in credibility to an extremely large extent.”2 Two years later, the

BIA affirmed the IJ’s denial of asylum and withholding of removal. Hong did not

petition for review of the BIA’s decision.

       In June of 1999, Hong filed his first motion to reopen, seeking to apply for

protection under the Convention Against Torture (CAT). The BIA denied the motion in

October of 1999. Hong did not petition for review of this decision either.

       Almost six years later, in August 2005, Hong filed a second motion to reopen with

the BIA. He alleged that the time and numeric limitations did not apply because there had

been a change in the country conditions of the PRC. Hong cited the fact that he and his

wife3 had had two children and were preparing for the birth of a third child. He alleged

that the PRC’s People’s Family Planning Law (PFPL) had been enacted in late 2002 and

was being implemented in his hometown. As a result, Hong asserted that if he were

returned to the PRC, he would be in violation of the PFPL and would be subjected to

sterilization.

       The BIA denied this second motion to reopen in October 2005 as untimely and

numerically barred under 8 C.F.R. § 1003.2(c)(2). The BIA recognized that there was an

exception to the time and numeric limitations “based on changed circumstances arising in


       2
        Hong had, through counsel and at an earlier appearance before the IJ,
conceded deportability. During this December 1995 hearing, Hong renewed his
application for asylum and withholding of deportation and requested, in the
alternative, voluntary departure.
       3
        Hong met his wife in the United States.
                                             3
the country of nationality,” see 8 C.F.R. § 1003.2(c)(3)(ii), but it concluded that Hong

failed to demonstrate such a change. The BIA explained that the birth of Hong’s children

did not satisfy the exception as this constituted a change in Hong’s personal

circumstances in the United States and not a change of circumstances arising in the PRC.

The fact that the PFPL had been enacted in 2002 did not qualify as a change in

circumstances, according to the BIA, because the PFPL specifically provided that it

maintained the PRC’s current fertility policy advocating population control measures.

The BIA also declined to grant Hong’s motion to reopen sua sponte, pointing out that

Hong’s case did not present exceptional circumstances warranting such relief.

       This petition for review followed. Hong does not dispute that his second motion to

reopen is untimely and numerically barred. These limitations are inapplicable, according

to Hong, because of the exception contained in 8 C.F.R. § 1003.2(c)(3)(ii) where the alien

has demonstrated a change of circumstances in the alien’s native country. Hong contends

that he satisfied this exception by citing the enactment of the PRC’s PFPL and the efforts

to enforce this law in his hometown.4


       4
        Hong does not take issue with the BIA’s determination that the birth of his
two children in the United States is only a change in his personal circumstances
that does not qualify as a change in circumstances in his native country for
purposes of 8 C.F.R. § 1003.2(c)(3)(ii). Accordingly, we need not review this
aspect of the BIA’s decision.
       In addition, Hong wisely does not challenge the BIA’s refusal to sua sponte
grant his motion to reopen. See Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir.
2003) (concluding that we lack jurisdiction to review a denial by BIA to sua sponte
grant a motion to reopen under 8 C.F.R. § 1003.2(a)).
                                             4
       We find no error in the BIA’s analysis. It explained that the PFPL did not

constitute a significant change in the PRC’s population control policy, as this new law

was a codification of the PRC’s “current fertility policy.” As additional support, the BIA

cited the fact that the affidavit from Hong’s mother confirmed that the one child policy

had been in effect since the early 1980s.

       We cannot ignore that before the BIA can consider the merits of Hong’s motion to

reopen, Hong had to demonstrate changed country conditions. 8 C.F.R. §

1003.2(c)(3)(ii); Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (pointing out that the

exception in § 1003.2(c)(3)(ii) requires the petitioner “show changed country conditions

in order to exceed the 90-day filing requirement” applicable to a motion to reopen).

Because Hong failed to satisfy this prerequisite, the BIA did not err by denying the

motion to reopen. We will deny Hong’s petition for review.




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