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


1-22-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3705




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3705
                                      ___________

                           BAO YING CHEN; JIN BAO LIU,
                                                Petitioners,
                                      v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                         On a Petition For Review of an Order
                         of the Board of Immigration Appeals
                       Agency Nos. A77-713-720; A72-432-397
                        Immigration Judge: Rosalind K. Malloy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 21, 2009

               Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                            (Opinion filed: January 22, 2009
                                     ___________

                                       OPINION
                                      ___________


PER CURIAM

      Petitioners Bao Ying Chen and Jin Bao Liu, natives and citizens of the People’s

Republic of China, and wife and husband, were ordered removed by an Immigration

Judge after they were found not credible and after their requests for asylum, withholding
of removal, and relief under the Convention Against Torture were denied.1 In a decision

dated February 4, 2005, the Board of Immigration Appeals upheld the IJ’s adverse

credibility finding, affirmed the decision, and dismissed the appeal. We dismissed Chen’s

petition for review in Chen v. Gonzales, 173 Fed. Appx. 959 (3d Cir. 2006).

       Chen sought asylum on the basis of political persecution because of her opposition

to China's coercive family planning policy.2 Chen and Liu were married in 1981, had a

son in 1982, and, after coming to the United States in 1999, Chen gave birth to the

couple’s daughter. At the merits hearing on June 19, 2002, both Chen and Liu testified

that they feared they would be subjected to forced sterilization by local Chinese family

planning officials because they already have two children. In affirming, the Board noted

material, unexplained inconsistencies and omissions in the testimony surrounding an

alleged forced abortion, citing Chen's testimony, documentary evidence from the record,

and Liu's asylum application.3 After careful review of the record, we found substantial


   1
    Chen is the lead petitioner, and we thus will refer primarily to her throughout our
Opinion.
   2
     To qualify for asylum or withholding of removal, an applicant must establish that she
has a well-founded fear that she will be persecuted if removed to her home country on
account of race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b), 1231(b)(3). “[A] person who has a well
founded fear that he or she will be forced to [abort a pregnancy or undergo involuntary
sterilization] or [is] subject to persecution for [failure, refusal, or resistance to undergo
such a procedure] shall be deemed to have a well founded fear of persecution on account
of political opinion.” 8 U.S.C. § 1101(a)(42)(B).
   3
     An applicant bears the burden of proving eligibility for asylum based on specific
facts and credible testimony. 8 C.F.R. § 208.13(a); Abdille v. Ashcroft, 242 F.3d 477,

                                              2
evidence to support “the adverse credibility finding as to both Chen and Liu.” Id. at 961.

       On March 1, 2007, Chen filed a motion to reopen proceedings with the Board. In

it she contended that she and Liu had new evidence, not previously available, that China

has a policy that Chinese nationals with two children will be subject to family-planning

enforcement upon resettlement in China, and that her motion was not untimely under the

“changed circumstances” exception of 8 C.F.R. § 1003.2(c)(3)(ii). The evidence

submitted with the motion included a marriage certificate, household registration booklet,

and birth certificate (Exhibits A-C), and other evidence, which we set forth in the margin,

directly bearing on Chen’s assertion of a persecutory policy.4 No State Department

Country Reports were submitted with the motion. In a decision dated August 13, 2007,

the Board denied Chen’s motion to reopen removal proceedings. This timely petition for



482 (3d Cir. 2001).
   4
    The other evidence was as follows: affidavits of Jin Bao Liu and Bao Ying Chen
dated January 11, 2007 (Exhibit D); affidavit of John Shields Aird, dated September 30,
2004 (Exhibit E); RefLex, Issue 70 – July 7, 1997, Canadian Immigration and Refugee
Board (Exhibit F); an article from “Road to East Asia,” Vol 1, June-August 1996 (Exhibit
G); an article from “Population Research Institute Review,” Vol. 9, April/May 1999
(Exhibit H); a transcript from ABC News Nightline, June 9, 1998 (Exhibit I); Liu v.
Gonzales, No. 03-4219 (2d Cir. September 28, 2006) (summary order) (Exhibit J); Guo v.
Gonzales, 463 F.3d 109 (2d Cir. 2006) (Board abused its discretion in failing to consider
documents purporting to show that foreign-born children would be counted in
determining violations of China's one-child policy) (Exhibit K); an Administrative
Opinion, Changle City Family-Planning Administration, May 22, 2003 (Exhibit L); an
Administrative Decision, Fujian Province, Department of Family Planning
Administration, 2003 (Exhibit M); an article from Martindale-Hubbell International Law
Digest, August 7, 2006 (Exhibit N); and an article from The New York Times, August 24,
2006 ( Exhibit O).

                                             3
review followed.

       We will grant the petition for review, vacate the Board’s August 13, 2007 decision,

and remand the matter for further proceedings. We have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1), (b)(1). We review the denial of a motion to reopen for abuse of discretion.

See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). We will not disturb the Board's

decision unless it is arbitrary, irrational, or contrary to law. Id. Chen contends on appeal

that the Board’s rationale in refusing to reopen proceedings and its failure to consider

relevant evidence annexed to her motion to reopen constituted an abuse of discretion. We

agree. In vacating the Board’s order and remanding for further proceedings, we rest our

holding solely on procedural deficiencies we find in the proceedings concerning the

motion to reopen. We do not reach the substantive issues whether Chen has (1) made out

a prima facie case of eligibility for asylum or the related relief, or (2) established changed

country conditions in China with respect to stepped-up or abusive local enforcement of its

family planning policy.5

       The regulation governing motions to reopen provides that: “A motion to reopen

proceedings shall state the 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.... A




   5
     We lack jurisdiction to address Chen’s arguments concerning the IJ’s adverse
credibility determination, because the underlying immigration proceedings are not before
us. 8 U.S.C. § 1252(b)(1) (providing for thirty day period in which to file petition for
review).

                                              4
motion to reopen proceedings shall not be granted unless it appears to the Board that

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). Although a

motion to reopen “must be filed no later than 90 days after the date on which the final

administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R.

§ 1003.2(c)(2), this time limitation does not apply if the alien seeks reopening “based on

changed circumstances arising in the country of nationality or in the country to which

deportation has been ordered, if such evidence is material and was not available and could

not have been discovered or presented at the previous hearing.” 8 C.F.R. §

1003.2(c)(3)(ii). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).

       Properly identifying Chen’s claim that she and her husband had new evidence that

Chinese nationals who return with children born in the United States may be subjected to

sterilization, the Board reached two conclusions: the motion was untimely and the changed

circumstances exception did not apply.6 The Board’s conclusion that the motion to reopen



   6
     Following its conclusion that the motion was untimely, and prior to addressing the
issue of changed circumstances, the Board stated that it was “unlikely” that Chen had a
realistic chance of establishing eligibility for asylum based on the Board’s prior
affirmance of the IJ’s original adverse credibility determination. Although, in addressing
a motion to reopen, the Board may “leap ahead” over the threshold issue of whether the
alien has introduced previously unavailable, material evidence that justifies reopening,
and “simply determine that even if they were met, the [alien] would not be entitled to the
discretionary grant of relief,” Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94,
105 (1988), here, the Board’s statement that it was “unlikely” that Chen had a realistic
chance of establishing eligibility for asylum does not contain the necessary certainty to
qualify it as an alternative holding, and we will not treat it as such.

                                            5
was untimely because it was not filed within 90 days of the Board’s previous decision was

not an abuse of discretion. See 8 C.F.R. § 1003.2(c)(2). With respect to whether the

“changed circumstances” exception to the timeliness requirement applied, the Board stated

that “the majority of the evidence provided with the motion and all of the evidence directly

cited in the motion were available to [Chen and Liu] and could have been presented at the

previous hearing.” For example, the “main article” relied upon, the “Reflex” article, was

previously submitted. To the extent that roughly half of the evidence Chen submitted with

her motion to reopen was old and could have been, or was, presented at the original merits

hearing, the Board did not abuse its discretion. The July 1997 RefLex, Issue 70, from the

Canadian Immigration and Refugee Board, was attached as Exhibit F to the motion to

reopen. Other old evidence included the 1996 “Road to East Asia” article (Exhibit G), the

1999 “Population Research Institute Review” article (Exhibit H), and the 1998 ABC News

Nightline transcript (Exhibit I).

       The Board went on to state that there was only one piece of evidence dated

subsequent “to the Immigration Judge’s decision,” the John Aird affidavit, which the

Board had previously determined was too general, and not based upon personal

knowledge, to be persuasive of changed circumstances regarding China’s enforcement of

its family planning policy. The Board cited its decisions in Matter of C-C-, 23 I. & N.

Dec. 899 (BIA 2006), and Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007). Therefore,

the Board concluded, the evidence submitted did not establish that circumstances in China


                                             6
had changed since Chen and Liu’s “hearing before the Immigration Judge.” Insofar as we

too have rejected Aird’s position, see Yu v. U.S. Att’y Gen., 513 F.3d 346, 348-49 (3d Cir.

2008), the Board did not abuse its discretion in rejecting this new evidence.

        However, we conclude that the Board abused its discretion in determining that only

the Aird affidavit was new and material. In her Memorandum of Law attached to the

motion to reopen, Chen cited directly the following other evidence, in addition to the Aird

affidavit, that was new: an Administrative Opinion from the Changle City Family-

Planning Administration, dated May 22, 2003 (Exhibit L), an Administrative Decision

from Fujian Province Department of Family Planning Administration, dated 2003 (Exhibit

M), an entry from the Martindale-Hubbell International Law Digest, dated August 7, 2006

(Exhibit N), and an article from The New York Times, dated August 24, 2006 (Exhibit O).

A.R. 21-23. All of these items post-date the June 19, 2002 merits hearing and provide

relevant information.7

        Evidentiary material may only be presented at a merits hearing before the IJ. See

Filja v. Gonzales, 447 F.3d 241, 252-53 (3d Cir. 2006). The date of the merits hearing,




    7
     Chen also submitted two 2006 decisions from the Court of Appeals for the Second
Circuit (Exhibits J and K), but these cases added nothing more in that they merely discuss
the significance of Chen’s Exhibits L and M, the 2003 Changle City Family-Planning
Administration Opinion and 2003 Fujian Province Department of Family Planning
Administration Decision. Chen also submitted her own and her husband’s recent
affidavits, but, after careful review, we conclude that these affidavits are too general to be
persuasive of changed circumstances regarding China’s enforcement of its family
planning policy.

                                              7
and not the date of the IJ’s decision (if they are different as they were here), is the critical

date in determining whether evidence is new. Id. In Chen’s case, the testimony was

completed on June 19, 2002 “with the exception of questions regarding [Liu’s] I-94, if

he’s able to locate it.” A.R. 403.8 The hearing was continued over on March 18, 2003,

and then, on July 29, 2003, the government asserted that it had “diligently [run] the I-94

number [supplied by Liu] ... through the system” but could not locate another “A” file for

him, A.R. 423. Thus, although the proceedings were continued a number of times to

permit Chen to submit an additional document, the record discloses that there were no

further hearings on the merits after June 19, 2002. Therefore, on the record before us, any

evidence dated after June 19, 2002 is new. We note that the IJ’s decision is dated “August

1, 2003” throughout, A.R. 221-254, and also bears a date-stamp of “February 20 2004,”

A.R. 221. Although the actual date of the IJ’s decision is thus far from clear on this

record, there is no indication whatever that a merits hearing was held on either of these

dates. Accordingly, the Board abused its discretion in concluding that only the Aird

affidavit was new.

        The other new evidence also was potentially material. The 2003 Changle City

Family-Planning Administration decision stated that where either parent remains a Chinese

national with no permanent residence overseas, any child of such a couple is deemed a



    8
     An I-94 Arrival-Departure Record is regarded as an identification document, see,
e.g., United States v. Hammoude, 51 F.3d 288, 292 (D.C. Cir. 1995). Liu wished to
submit this item to the IJ.

                                                8
Chinese national and shall be treated as such for domestic administrative purposes. See

Guo, 463 F.3d at 112-13 (discussing contents of 2003 Changle City decision). The

decision states that Chinese nationals having children in violation of China’s

family-planning policies will be sanctioned according to family-planning rules and

regulations enforced at the local level. Id. The Fujian Province Department of

Family-Planning Administration affirmed the Changle City opinion. Id. (discussing

contents of 2003 Fujian Province decision). In The New York Times article, “China

sentences blind activist to prison,” it states: “But Shandong government officials turned

bitterly against [Chen Guangcheng] in early 2005. It was then that he sought to represent

thousands of local residents forced to abort fetuses or submit to sterilization operations so

that Linyi City, Shandong, could meet its population-control quotas.” Chen notes in her

brief on appeal that the 2006 State Department Report on Country Conditions in China

confirms Chen Guangcheng’s plight for having exposed family planning abuses, and

suggests that the central government is punishing whistle blowers, rather than local

officials who use forcible measures to accomplish China’s family planning policy.9

        As we recently emphasized in Zheng v. U.S. Att’y Gen., — F.3d — , 2008 WL

5006072 (3d Cir. November 26, 2008), the Board has “‘a duty to explicitly consider any



    9
     Chen has asked us to take judicial notice of the 2006 State Department Country
Report on China, which she did not submit with her motion to reopen. Insofar as we do
not reach the substantive issue of changed circumstances in China, and are remanding, we
think it more appropriate for her to make a request that the Board take administrative
notice of the Report.

                                              9
country conditions evidence submitted by an applicant that materially bears on his claim,”

and “[a] similar, if not greater, duty arises in the context of motions to reopen based on

changed country conditions.’” Id. at *8 (quoting Guo, 463 F.3d at 115). See also Yang v.

Gonzales, 427 F.3d 1117, 1122 (8th Cir. 2005) (“If an agency makes a finding of fact

without mentioning or analyzing significant evidence, its decision should be

reconsidered.”) (internal quotation marks omitted). Furthermore, we noted with approval

the Eleventh Circuit Court of Appeals decision in Li v. U.S. Att’y Gen., 488 F.3d 1371,

1375-76 (11th Cir. 2007), holding that petitioners’ evidence in that case concerning the

conduct of local officials in Fujian, including the 2005 State Department Country Report,

clearly satisfied the criteria for a motion to reopen removal proceedings. Zheng, 2008 WL

5006072, at *7. In Chen’s case, the Board erred with respect to identifying what evidence

was new and failed to identify and discuss the various statements contained in the record

before it that she submitted with her motion to reopen. Given the Board’s failure to

discuss most of the evidentiary record, a remand is necessary. Although we will also

vacate the Board’s order, as in Zheng, 2008 WL 5006072, at *10, we express no view

whatever on whether the Board reached the correct result that the evidence Chen presented

should not lead to the reopening of her proceedings.

       In closing out its written August 13, 2007 decision in Chen’s case, the Board stated

that “we cannot find that the evidence the respondent submitted establishes that

circumstances in China have changed since the respondents’ hearing before the


                                             10
Immigration Judge. See Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007).” We realize

that S-Y-G- is the decision issued by the Board following the Second Circuit’s remand in

Guo, 463 F.3d 109, and, in it, the Board held that the applicant did not meet her burden to

show that the proffered evidence reflected “changed circumstances” in China.

Specifically, the Board held that the documents submitted, which, as in Chen’s case,

included the 2003 Changle City Administrative Opinion and the 2003 Fujian Province

Administrative Decision, reflected general family planning policies in her home province

that did not specifically show any likelihood that she or similarly situated Chinese

nationals would be persecuted as a result of the birth of a second child in the United

States. Id. at 254-256. With respect to one petitioner whose children were born many

years apart, the Board cited the State Department’s 2005 Profile of Asylum Claims and

Country Conditions for the proposition that provincial law indicates that married couples

may apply to have a second child within certain time frames that are being increasingly

relaxed. Id. at 256. When the petitioners again sought review in the Second Circuit, their

petition for review was denied. See Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008).

       We will not attempt to intuit from the Board’s citation, without discussion, to S-Y-

G- that the new relevant evidence submitted by Chen actually was considered and rejected

by the Board. The Board did not mention the 2003 Changle City Administrative Opinion

or 2003 Fujian Province Administrative Decision in its decision, and the Board

specifically stated that only the Aird affidavit was new. The Board’s decision that the


                                             11
evidence submitted did not establish that circumstances in China had changed since Chen

and Liu’s hearing rested on that incorrect finding. Furthermore, Chen submitted new

evidence with her motion to reopen, The New York Times article, which discussed an

activist’s representation of thousands of local residents forced to abort fetuses or submit to

sterilization, that was not considered or addressed by the Board in S-Y-G-. On remand,

the Board should reconsider the appeal and make a more complete analysis of the evidence

Chen submitted. With respect to The New York Times article, the Board may also wish to

take administrative notice of the 2006 State Department Country Report on China, see

generally Shao, 546 F.3d at 166 (discussing when taking administrative notice of recent

State Department reports does not violate due process right of aliens).

       For the foregoing reasons, we will grant the petition for review, vacate the Board’s

order denying the motion to reopen, and remand the matter for further proceedings

consistent with this Opinion.




                                             12
