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


1-7-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3053




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-3053


                                   WAN SHENG LU,
                                                       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. A73-177-243)

                            Immigration Judge: Nicole Kim


                       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 of a decision and

order entered on July 13, 2007, of the Board of Immigration Appeals (“BIA”) on

petitioner Wan Sheng Lu’s fourth motion to reopen asylum proceedings. Lu is a citizen

of China from Fujian Province who entered this country illegally no later than in 1993 1

and unsuccessfully applied to the former Immigration and Naturalization Service (“INS”)

for asylum on November 28, 1993. Lu has remained in this country since his entry even

though an Immigration Judge (“IJ”) ordered him removed on April 16, 1997, and the BIA

on May 29, 1998, upheld that order. While remaining in this country since his illegal

entry he has asserted in four unsuccessful attempts to reopen his proceedings that he was

eligible for asylum but has shifted his theories advanced to establish that claim to include

persecution under China’s family planning policies, membership in Falun Gong, and

participation in the Chinese student pro-democracy protests. Nevertheless all of his

applications have failed because of his lack of credibility. But he has not departed this

country, and neither the INS nor the Department of Homeland Security has removed him

physically.

       Lu’s brief on this petition is remarkable because in his statement of the case, after

describing the BIA’s dismissal of his original appeal, its next statement is that

“Petitioner’s most recent motion to reopen his proceedings was denied by the BIA on July



  1
   According to Lu’s brief he “arrived in the United States in May of 1998 to seek
asylum from persecution in China on account of his political opinion and involvement
with Falun Gong.” Petitioner’s br. at 1-2.

                                              2
13, 2007.” Petitioner’s br. at 2. It then goes on to tell us that the motion now before the

Court is predicated on “new facts that are material and crucial, but were previously

unavailable to [him] at the time of his previous motion to reopen,” the new facts relating

to forced abortions and sterilizations pursuant to China’s family planning policies. Id.

Thus, a person reading Lu’s brief might believe that this petition involves Lu’s second

attempt to reopen his asylum proceedings rather than his fourth such attempt.

       The record indicates that Lu has engaged in serial frauds in this country related to

his entry and attempt to avoid removal. Thus, the evidence shows that he submitted a

counterfeit passport and used another person’s name and passport to enter the country and

testified falsely at subsequent hearings. Moreover, his use of shifting theories to explain

why he is entitled to asylum demonstrates that he will attempt to stay in this country

without regard for the truth of his evidence supporting his attempts.

       In its decision and order of June 13, 2007, after pointing out that it had denied Lu’s

previous motions to reopen in 2000, 2003, and 2004, the BIA set forth its decision that

Lu’s current “motion to reopen is untimely and number barred and will be denied in the

exercise of discretion.” App. at 2. The BIA explained that the time and number limits do

not apply to motions to reopen predicated on material and previously unavailable

evidence of changed circumstances in the country of nationality. It explained that the

question whether Lu’s present motion fell within an exception to the time and number

limits depends on whether he had presented evidence that “demonstrates changed



                                              3
circumstances in China that are material to his claim.” Id.

         In a critical aspect of the case reflecting Lu’s alleged sterilization concern, the BIA

noted that he had submitted his personal affidavit and a letter “purportedly” 2 from the

Village Committee in Changle City in Fujian directing that he “must report to [the] family

planning office within one week of [his] arrival and undergo [a] sterilization procedure on

an appointed date.” Id. at 3. The BIA also indicated that Lu had submitted other

documents in support of his motion. The BIA then said that it would “deny the motion in

the exercise of discretion,” citing our opinion in Guo v. Ashcroft, 386 F.3d 556, 561-62

(3d Cir. 2004), as support for its decision.

         In exercising its discretion the BIA described Lu’s history of filing motions to

reopen and indicated that he never had “addressed the prior adverse credibility

determination.” App. at 3. It then said that “given the prior document fraud filing, we are

not persuaded as to the reliability of [Liu’s] affidavit and the letter from the village

committee.” App. at 2-3.

         Ultimately the BIA concluded its decision by indicating that Lu’s motion was

time-barred and did not meet an exception to the restrictions on motions to reopen. It

then stated dual bases for denial of Lu’s motion. First it said that neither it nor an IJ “has

jurisdiction to consider a new application for asylum in proceedings that are

administratively final and where the standards for reopening are not satisfied.” Id. at 6.



  2
      The BIA used the word “purportedly.”

                                                4
Then it indicated that “we deny the motion in the exercise of our discretion.” Id. This

petition for review followed.

       The BIA had jurisdiction under 8 C.F.R. § 1003.2(c), and we have jurisdiction

under 8 U.S.C. § 1252. There are two standards of review applicable to this petition.

First we review the denial of a motion to reopen for abuse of discretion. Guo, 386 F.3d at

562. Second, again using a deferential standard, we uphold the BIA’s factual

determinations if they are “supported by reasonable, substantial, and probative evidence

on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112

S.Ct. 812, 815 (1992). Thus, we can reject the BIA’s factual findings only if “any

reasonable adjudicator would be compelled to conclude to the contrary.” Id.; 8 U.S.C. §

1252(b)(4)(B).

       We will deny the petition for review. How could we do anything else? Clearly the

BIA did not abuse its discretion in denying the motion to reopen brought by this serial

litigator. Moreover, in reaching our result we are aware of the Supreme Court in INS v.

Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25 (1992), which indicated that motions

to reopen are disfavored because delay works to the advantage of the deportable alien.

       We recognize the point that the Attorney General makes in his brief that

“[w]ithholding of removal is mandatory once the Attorney General determines that [the]

alien’s life or freedom would be threatened because of a protected trait or activity.”

Respondent’s br. at 22 (internal quotation marks omitted). Thus, it is possible that if Lu



                                              5
had met the burden of proof for withholding of removal that, notwithstanding his abuse of

the system, he would be entitled to that relief. But he did not meet that burden of proof

because in an unassailable finding the BIA rejected his critical evidence on the point, the

letter from the Village Committee stating that he would have to report for sterilization

when he returned to China. The BIA did not accept the legitimacy of this letter and we

cannot overturn this action under our standard of review. Thus, even taking into account

Lu’s other evidence, he did not establish a “clear probability,” meaning that it was more

likely than not, that he would suffer persecution under China’s family planning policies if

he returned to that country.

       For the foregoing reasons the petition for review of the decision and order of the

BIA entered July 13, 2007, will be denied.




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