                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3743




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-3743
                                       ___________

                                     QI LIANG CHEN,
                                            Petitioner

                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES


                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                               (BIA No. A79-303-422)
                    Immigration Judge: Honorable Donald V. Ferlise


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    August 6, 2008

      Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                                 (Filed: August 12, 2008)


                               OPINION OF THE COURT


PER CURIAM

       Qi Liang Chen, a citizen of the People’s Republic of China, seeks review of a final

order from the Board of Immigration Appeals (“BIA”). For the following reasons, we

will deny the petition for review.
                                             I.

       Chen applied for asylum, withholding of removal, relief under the Convention

Against Torture (“CAT”),1 and voluntary departure on March 28, 2001, claiming that his

wife (who remains in China) was forced to abort their second child in August 2000

pursuant to China’s coercive family planning policy. Chen testified that he was “hit hard

emotionally” after the abortion and that he left China in September 2000 with the help of

a smuggler. He claimed that he entered the United States without inspection in November

2000, and believes that he will be arrested if he returns to China because he once helped

his wife escape from the birth control office, and because he did not report to the police

after he was issued a notice to appear in July 2000.

       At Chen’s removal proceedings, Immigration Judge (“IJ”) Donald Ferlise

determined, among other things, that Chen could not prove that his asylum application

was timely because he could not establish when he entered the United States. The IJ also

determined that Chen’s application was frivolous and that he was not credible. Even if he

was, the IJ stated that Chen would no longer have a well-founded fear of persecution

because there had been a fundamental change in circumstances “insofar as [his] wife has

been aborted, they only have one child and [Chen] presented absolutely no evidence that

they wish to sterilize his wife.”


  1
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in
the United States by the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C.
§ 1231.

                                             2
       The BIA affirmed in September 2003, finding that the IJ correctly determined that

the application was time barred and that no exceptions to the statute of limitation applied.

The BIA did, however, reverse the frivolousness finding, and found that the IJ incorrectly

determined that there had been a fundamental change in circumstances. Then, on May

21, 2004, after granting Chen’s motion to reconsider, the BIA again dismissed his appeal.

       Three years later, on April 30, 2007, Chen filed a motion to reopen, arguing that it

was not subject to the ninety-day time limitation due to exceptional circumstances. See 8

C.F.R. § 1003.2(c)(2). Chen claimed that the IJ violated his due process rights by

refusing to reschedule his hearing when he had been in the emergency room until 4 a.m.

with an illness. Chen claimed that the had IJ treated him disrespectfully, and as evidence

of changed circumstances, submitted two of this Court’s opinions regarding Judge

Ferlise. Chen also submitted affidavits from himself and his wife, an abortion certificate,

and the U.S. Department of State’s 2006 country condition report on China.

       The BIA dismissed the motion to reopen as untimely and determined that Chen

was not eligible for an exception to the statute of limitation based on changed

circumstances. The BIA found that Chen failed to demonstrate that the affidavits and

abortion certificates could not have been presented at the prior hearing, and that even if

the information had been previously unavailable, it merely reiterated Chen’s claim that

his wife had an abortion. The BIA also found that Chen had not established a due process

violation by presenting only a hospital bill from an emergency room. Finally, the BIA

determined that there were no exceptional circumstances to warrant a discretionary sua

                                             3
sponte reopening under 8 C.F.R. § 1003.2(a).

       Through counsel, Chen seeks review in this Court of the BIA’s denial of his

motion to reopen.

                                              II.

        We have jurisdiction under 8 U.S.C. § 1252(a)(1), and review the order for an

abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Under this

standard, the BIA’s decision will be reversed only if it is “arbitrary, irrational, or contrary

to law.” Id.

       The BIA denied the motion to reopen because it was untimely and because Chen

did not meet the exception for changed circumstances under 8 C.F.R. § 1003.2(c). This

decision is not an abuse of discretion. The motion was indisputably untimely, as it was

filed over three years after the BIA denied Chen’s motion for reconsideration. See 8

C.F.R. § 1003.2 (c)(2) (motions to reopen must be filed within 90 days of a final order).

Chen did not contest the tardiness of his motion; he did, however, assert that it fell within

the exception of 8 C.F.R. § 1003.2(c)(3)(ii), which permits reopening “based on changed

circumstances arising in the country of nationality . . . if such evidence is material and

was not available and could not have been discovered or presented at the previous

hearing.”2


  2
      Chen’s petition for review also asserts that his motion to reopen should have been
considered because his “new evidence” demonstrated changed circumstances in the
United States. Apart from the fact that we are unable to discern what he considers to be
changed country conditions in the United States, the regulation to which he cites governs

                                               4
       Chen offered the following documents to the BIA that he claimed were newly

discovered and previously unavailable: (1) an affidavit from himself; (2) an affidavit from

his wife; (3) a certificate stating that his wife had an abortion on August 5, 2000; (4)

copies of Cham v. Attorney General, 445 F.3d 683 (3d Cir. 2006), and Shah v. Attorney

General, 446 F.3d 429 (3d Cir. 2006); and (5) the U.S. Department of State’s 2006

country condition report for China. Apart from the country condition report, Chen’s

“new evidence” did not provide any evidence of conditions in China, but rather were

documents which if true, buttressed his own credibility. This is not a basis for reopening

under 8 C.F.R. § 1003.2. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) (“The

critical question is . . . whether circumstances have changed sufficiently that a petitioner

who previously did not have a legitimate claim for asylum now has a well-founded fear of

persecution.”).

       The BIA did not discuss the 2006 country condition report, which was of course

not available at the 2002 hearing. However, it is unclear how the report would constitute

material evidence to justify reopening the proceedings. See 8 C.F.R. § 1003.2.(c)(3)(ii)

(allowing for reopening only if new evidence is material). The report details China’s

poor human rights record, states that the family planning policies “retained harshly

coercive elements in law and practice,” and that officials in the Fujian province (where

Chen is from) “reportedly forcibly sterilized women.” Chen, however, does not claim to


exceptions to the one-year statute of limitation for filing asylum applications, not motions
to reopen. See 8 C.F.R. § 208.4(a)(4)(i); 8 U.S.C.A. § 1158(a)(2)(D).

                                              5
fear future persecution based on the possibility of sterilization, did not make any

arguments before the BIA—and does not make any arguments now—as to how the report

constitutes material evidence. In his motion to reopen and affidavit he repeatedly states

that he fears persecution, but does not explain why. The BIA thus did not abuse its

discretion by declining to find that the new country condition report warranted reopening.

       The BIA also held that Chen failed to establish that reopening was warranted

under the Due Process Clause. At a minimum, due process requires the right to “be heard

at a meaningful time and in a meaningful manner.” Abdulai v. Ashcroft, 239 F.3d 542,

549 (3d Cir. 2001) (internal citation omitted). In the immigration context, “due process

requires that aliens threatened with deportation are provided the right to a full and fair

hearing that allows them a reasonable opportunity to present evidence on their behalf.”

Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir. 2003) (internal citation omitted).

Chen claimed that his due process rights were violated when the IJ refused to reschedule

his hearing after he had been in the emergency room the previous night. Chen claimed

his testimony was detrimentally affected, due to his weakened state, by the IJ’s failure to

reschedule. In support of this claim, Chen submitted a hospital bill from the University of

Pennsylvania Medical Center dated March 6, 2002 (his hearing was on March 7th).

       The BIA properly found that the hospital bill was insufficient to demonstrate a due

process violation, and explained that the record did not indicate that Chen submitted a

letter from his doctor stating that he could not testify. While illness could no doubt

adversely affect the right to be heard in a “meaningful manner,” the hospital bill does not

                                              6
identify why Chen went to the ER, his diagnosis, or what time he was examined. The

description of services states merely “ER W Expand.” In addition to the fact that the bill

would likely have been available at the time of his hearing and does not constitute “new”

evidence, the BIA certainly did not abuse its discretion in finding that the hospital bill in

and of itself did not establish that the IJ violated Chen’s rights to due process by failing to

reschedule the hearing.

       Chen also asserted that he was “bullied” and mistreated by Judge Ferlise. Chen’s

due process claim, however, was premised on the IJ’s failure to reschedule the

hearing—he did not claim that his due process rights were violated because the IJ was not

“neutral and impartial.” Even if his assertions regarding bullying and mistreatment were

viewed as a due process claim, the BIA would not have abused its discretion in declining

to reopen the proceedings. Chen submitted this Court’s opinions in Cham v. Attorney

General, 445 F.3d 683 (3d Cir. 2006), and Shah v. Attorney General, 446 F.3d 429 (3d

Cir. 2006), as “new evidence” of Judge Ferlise’s “bullying.” While the opinions may

demonstrate that Judge Ferlise violated other petitioners’ due process rights, they do not

constitute evidence of a due process violation in Chen’s proceedings.3



  3
       The record reveals that the IJ expressed impatience and was condescending toward
Chen, but his behavior does not appear to rise to the level of intemperance, hostility,
unfounded speculation, or apparent partiality that this Court has condemned in Cham and
Shah. See Abdulrahman, 330 F.3d at 597 (noting that the IJ’s language reflected
annoyance and dissatisfaction, “such a lack of courtesy and the absence of
professionalism do not rise . . . to a violation of due process”).


                                               7
       Finally, we do not have jurisdiction to review the BIA’s determination that there

were no “exceptional circumstances” that would allow it to sua sponte reopen the

proceedings. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003).

       For these reasons, and after careful consideration of the record and the parties’

contentions, we will deny the petition for review.




                                             8
