10-3520-ag
Chen v. Holder


                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 29th day of April, two thousand thirteen.

PRESENT:    JOHN M. WALKER, JR.,
            DENNY CHIN,
                      Circuit Judges,
            JANE A. RESTANI,
                      Judge.*

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JIN CHEN, AKA Jin Song Chen,
                    Petitioner,

                  -v-                                        10-3520-ag

ERIC H. HOLDER, JR., United States
Attorney General,
                    Respondent.**

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FOR PETITIONER:               JOSHUA E. BARDAVID, Law Office of
                              Joshua E. Bardavid (Cora J. Chang,

      *
          The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
      **
          The Clerk of Court is directed to amend the official
caption to conform to the above.
                              Law Office of Cora J. Chang, on the
                              brief), New York, New York.

FOR RESPONDENT:               STEFANIE SVOREN-JAY, Trial Attorney
                              (John S. Hogan, Senior Litigation
                              Counsel, Robbin K. Blaya, Trial
                              Attorney, on the brief), Office of
                              Immigration Litigation, for Tony
                              West, Assistant Attorney General,
                              United States Department of
                              Justice, Washington, District of
                              Columbia.

         UPON DUE CONSIDERATION of this petition for review of

a Board of Immigration Appeals ("BIA") decision, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the petition for review is

GRANTED, the BIA decision is AFFIRMED in part and REVERSED in

part, and the case is REMANDED to the BIA with directions to

reopen the proceedings.

         Petitioner Jin Chen, a native and citizen of the

People's Republic of China, seeks review of an August 12, 2010

order of the BIA denying his motion to reconsider and reopen his

removal proceedings.   By decision dated November 13, 2009, the

BIA had affirmed the January 22, 2008 order and decision of the

Immigration Judge ("IJ") denying Chen's application for asylum

and withholding of removal and relief under the United Nations

Convention Against Torture ("CAT").   Chen asserts that he should

be granted asylum because of past persecution or a well-founded

fear of future persecution on the basis that he will be subject

to forced sterilization upon his return to China.   We assume the


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parties' familiarity with the facts and procedural history of

this case.

1.   Applicable Law

           We review the BIA's denial of a motion to reconsider or

reopen for abuse of discretion and will find such abuse if "the

[BIA]'s decision provides no rational explanation, inexplicably

departs from established policies, is devoid of any reasoning, or

contains only summary or conclusory statements; that is to say,

where the [BIA] has acted in an arbitrary or capricious manner."

Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir.

2001) (internal citations omitted).

           A motion to reconsider must specify errors of fact or

law in the BIA's decision and be supported with pertinent

authority.   8 C.F.R. § 1003.2(b)(1); see Ke Zhen Zhao, 265 F.3d

at 90.   "The BIA does not abuse its discretion by denying a

motion to reconsider where the motion repeats arguments that [it]

has previously rejected."   Jin Ming Liu v. Gonzales, 439 F.3d

109, 111 (2d Cir. 2006) (per curiam).   A motion to reopen

proceedings to admit new evidence shall be granted only if it

appears to the BIA that the "evidence sought to be offered is

material and was not available and could not have been discovered

or presented at the former hearing."    8 C.F.R. § 1003.2(c)(1).

           An alien applying for asylum based on a well-founded

fear of future persecution must establish both an objectively and


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subjectively reasonable fear of future persecution.       See Gomez v.

INS, 947 F.2d 660, 663 (2d Cir. 1991).       The alien must "present

credible testimony that he subjectively fears persecution and

establish that . . . a reasonable person in the petitioner's

circumstances would fear persecution if returned to his native

country."   Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir.

2005) (per curiam) (quotation omitted); see 8 C.F.R.

§ 208.13(b)(2).

2.   Application

            We hold that the BIA did not abuse its discretion in

denying Chen's motion to reconsider.      In his original appeal to

the BIA, Chen made two arguments:       (1) he had suffered past

persecution based on the implantation of an intrauterine device

("IUD") in his wife as well as his complaints to the Family

Planning Officials about the resultant complications; and (2) he

had a well-founded fear of future persecution because he believed

he would be forcibly sterilized upon his return to China.          The

BIA rejected both arguments and dismissed Chen's appeal.       In his

motion to reconsider, Chen repeated the same arguments he raised

in his original appeal, without raising new arguments or

identifying a change in the law.       Thus, we conclude that the BIA

did not abuse its discretion in denying Chen's motion to

reconsider.




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         We hold, however, that the BIA abused its discretion in

denying the motion to reopen.

         First, it was error for the BIA to conclude that Chen's

additional documentary evidence was not "new" because the

documents "predate[d] [its] decision by at least a year."     In the

context of a motion to reopen, the BIA must consider new evidence

that was unavailable at the time of the IJ hearing.     See Norani

v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006) (per curiam) (date

on which IJ closed hearing is date before which evidence must

have been unavailable, undiscoverable, or unpresentable).     In

declining to consider the evidence here, the BIA reasoned that

"virtually all of the information in the [documents] describe

events that occurred well before the hearing [on January 22,

2008] and could have been presented to the [IJ]."    To the

contrary, however, letters from Chen's father and wife describe

events that occurred after the IJ hearing, including the raiding

of the father's home on Chinese New Year's Eve in February 2008

by ten government officials, and the government's increased

efforts to apprehend Chen's wife later that year.    The Birth

Control Notice and the summons were dated March 3, 2008 and April

14, 2008, respectively, both subsequent to the IJ hearing.       Thus,

the additional evidence was indeed "new."

         Second, the BIA faulted Chen for "not having filed a

motion to remand while the appeal was pending."     The relevant


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regulation, however, does not impose a time limit for filing a

motion to reopen proceedings to present evidence that could not

have been presented at the IJ hearing.     Norani, 451 F.3d at 294 &

n.3 (citing 8 C.F.R. § 1003.2(c)(1)).

            Third, although the BIA also concluded that the

additional documents, "even if considered reliable and authentic,

are not new, material evidence warranting reopening," we conclude

that "the BIA did not adequately engage with the facts or the

political context of [Chen]'s activities."     Ruqiang Yu v. Holder,

693 F.3d 294, 298 (2d Cir. 2012).     The BIA's decision does not

discuss the facts presented by the new evidence at all, as the

BIA concludes in wholly conclusory language that the evidence

does not "warrant reopening."    The BIA abuses its discretion if

it fails to give reasoned consideration to evidence presented by

a petitioner, see Zhi Yun Gao v. Mukasey, 508 F.3d 86, 88 (2d

Cir. 2007) (per curiam), and, under the circumstances here,

particularly where the BIA incorrectly stated that the events

identified by Chen occurred "well before" the IJ hearing, we are

not confident that the BIA adequately considered the new

evidence.

            Chen's new evidence, if credited, would establish that

his wife, who had been living in hiding since the birth of their

second daughter, visited his father's home on the eve of the

Chinese Lunar New Year in 2008, which corresponds to February 6,


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2008 on the Western calendar; that shortly after she departed,

ten government officials raided his father's home, during the

most important local holiday, in search of the couple; that the

local family planning office issued the Birth Control Notice on

March 3, 2008, which ordered Chen to appear for a "contraceptive

procedure" by March 13 or be responsible for any consequences;

and that, after Chen did not appear for the procedure, the Fuzhou

City Public Security Bureau issued a summons on April 14, 2008,

ordering Chen, without giving further reason, to appear at a

local police precinct on April 28.   The new evidence suggests

that the government officials' pursuit of Chen intensified in the

weeks after the IJ hearing.

         We remand to the BIA to reopen the proceedings to give

full consideration to Chen's evidence and determine whether he

has presented sufficient evidence to support an objectively

reasonable fear of future persecution.   See, e.g., Li Young Cao

v. U.S. Dep't of Justice, 421 F.3d 149, 151-52, 158 (2d Cir.

2005) (petitioner established objectively reasonable fear of

future persecution by presenting evidence that he and his wife

went into hiding after birth of their child, government officials

searched and destroyed their home, arrested his father, and

sterilized his wife).   We note that the IJ had earlier found Chen

to be a credible witness, and a petitioner may establish his

subjective fear of future persecution by his credible testimony.


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See Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 399 (2d

Cir. 2005) (citation omitted).

         Accordingly, the petition for review is GRANTED, the

BIA's decision is AFFIRMED in part and REVERSED in part, and the

case is REMANDED to the BIA with directions to reopen the

proceedings.

                         FOR THE COURT:
                         Catherine O'Hagan Wolfe, Clerk




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