                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1763




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                                                              NOT PRECEDENTIAL

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   Case No: 05-1763

                                   XIU QIN(J) CHEN,

                                            Petitioner

                                             v.

                        ALBERTO R. GONZALES, ATTORNEY
                         GENERAL OF THE UNITED STATES


                        On Petition for Review of a Final Decision
                          of the Board of Immigration Appeals
                                  BIA No. A75-809-672
                         Immigration Judge: William K. Strasser


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  March 28, 2006

              Before: RENDELL, SMITH, and BECKER, Circuit Judges

                                 (Filed: April 27, 2006)


                               OPINION OF THE COURT


SMITH, Circuit Judge.

      Xiu Qin Chen, a native and citizen of the People’s Republic of China, seeks

review of the Board of Immigration Appeals’ order denying her motion to reopen. We
will deny Chen’s petition for review and affirm the order of the BIA.1

       Chen entered the United States on June 2, 1998. Because she did not have valid

travel documents at the time of application for admission, the former Immigration and

Naturalization Service (INS) served her with a Notice to Appear on June 3, 1998, alleging

a violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). At a hearing before an Immigration Judge

(IJ) on July 14, 2003, Chen conceded inadmissibility, but filed an application for asylum,

claiming that she had been persecuted in China because, as the third of four children in

her family, she was considered an “overbirth.” She explained that if she was returned to

China, she feared being imprisoned because she had not come to the United States

legally. The IJ denied Chen’s application for asylum, withholding of removal, and

protection under the Convention Against Torture. On September 16, 2004, the BIA

affirmed without opinion.

       Chen subsequently filed a motion to reopen with the BIA based on the availability

of new evidence, specifically, a letter from the Villager’s Committee to her father which

indicated that her asylum application was an embarrassment to China and threatened her

with “severe punishment” if she did not withdraw it. The Board denied the motion,

concluding:




       1
         Because the denial of the motion to reopen is a final order, see Sevoian v.
Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002), we may review it pursuant to 8 U.S.C. §
1252(a).


                                             2
       We have reviewed the document presented, and find it inherently unworthy
       of belief as it is extremely implausible that her village committee would
       know that the respondent was an asylum applicant in the United States. We
       further note that no evidence was submitted that establishes that individuals
       who apply for asylum in this country after they depart China illegally are
       persecuted if they return.

App. at 2. Chen now appeals the BIA’s decision.

       This Court reviews the BIA’s decision on a motion to reopen for abuse of

discretion, Sevoian v. Ashcroft, 290 F.3d 166, 170-71 (3d Cir. 2002), and we will not

disturb a discretionary decision by the Board unless it is “arbitrary, irrational, or contrary

to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).

       The Code of Federal Regulations provides that “[a] motion to reopen proceedings

shall state new facts that will be proven at a hearing to be held if the motion is granted

and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. §

1003.2(c)(1). The Supreme Court has recognized at least three grounds upon which the

Board can deny a motion to reopen: (1) failure to establish a prima facie case for the

relief sought; (2) failure to introduce previously unavailable, material evidence; and (3) a

determination that even if these requirements were satisfied, the movant would not be

entitled to the discretionary relief which he sought. INS v. Abudu, 485 U.S. 94, 104-05

(1988). In order to establish a prima facie case on a motion to reopen, the petitioner must

“produce objective evidence showing a ‘reasonable likelihood’ that he can establish [that

he is entitled to relief on the merits].” Sevoian, 290 F.3d at 175.

       In this case, Chen submitted evidence that she claims was previously unavailable.

                                               3
The Board, however, found that evidence “inherently unworthy of belief” because it

considered it to be “extremely implausible that her village committee would know that

[Chen] was an asylum applicant in the United States.” We also note that, as the Attorney

General points out in his brief, Chen’s claim is suspect because the proffered letter was

not sent to her father until six years after she had left China. Additionally, her older sister

had left China, then later returned, and was not persecuted. The Board’s conclusion

reflects a determination that Chen has failed to establish a “reasonable likelihood” that

she will succeed on the merits. We cannot conclude that this determination is “arbitrary,

irrational, or contrary to law.” We will therefore affirm.




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