                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1706




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-1706


                                    DE YU CHEN,
                                                      Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES




                      On Petition for Review of an Order of the
                        United States Department of Justice
                           Board of Immigration Appeals
                               (BIA No. A77-047-486)
                    Honorable Eugene Pugliese, Immigration Judge


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 13, 2007

     Before: RENDELL, GREENBERG, and VAN ANTWERPEN, Circuit Judges

                              (Filed December 13, 2007)
                                        ____

                               OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

      Petitioner De Yu Chen, a native and citizen of China, seeks review of the February

14, 2006, Order of the Board of Immigration Appeals (“BIA”), denying his motion to

                                           1
reopen the BIA’s August 21, 2002, decision. The BIA’s 2002 decision affirmed the

Order of the Immigration Judge (“IJ”), issued on April 9, 2000, which denied Chen’s

claims for asylum, withholding of removal, and relief under the United Nations

Convention Against Torture (“Convention Against Torture”). We have appellate

jurisdiction to review the petition pursuant to 8 U.S.C. § 1252(a)(1), and for the reasons

set forth below, we will deny the petition.

                                              I.

       Because we write solely for the benefit of the parties, we will set forth only those

facts necessary to our analysis.

       Chen entered the United States at San Juan, Puerto Rico, on August 2, 1999, using

a fraudulent Japanese passport. He applied for asylum, withholding of removal, and

protection under the Convention Against Torture on September 28, 1999. At the asylum

hearing held on April 9, 2000, Chen testified that he sought asylum in the United States

based on persecution he allegedly suffered as a result of his violation of China’s

population control policy. Chen testified that he had three children, which exceeds the

permissible number under China’s family planning laws. In both his testimony and in the

documents supporting his application for asylum, Chen claimed that as a result of this

violation of Chinese law, he was ordered to pay a fine. Chen never paid the fine.1 He



   1
    When asked by counsel for the former INS why he didn’t pay the fine with this
money, Chen, through an interpreter, replied “Pay the fine? This time, I didn’t feel like
paying the fines.” App. at 212.

                                              2
also claimed that family planning authorities gave him a vasectomy against his will and

forced his wife to have surgery to receive an intrauterine device. Chen fled China in

1995. In his application for asylum, Chen claimed he could not return to China because

he would be assessed the unpaid fine and punished by either imprisonment or labor camp

duty due to his failure to pay the fine and his emigration from China without government

permission.

       The IJ denied Chen’s application for asylum, based in part on an adverse

credibility finding. Chen appealed to the BIA, arguing that the IJ’s decision was error.

The BIA upheld the IJ’s ruling without opinion on August 21, 2002. Chen filed a pro se

motion to reopen the BIA’s decision on June 28, 2004, almost two years after the final

order of the BIA. Finding that the motion exceeded the 90-day time limit set forth in 8

C.F.R. § 1003.2(c)(2) and did not fall under any exception to that section, the BIA denied

Chen’s motion. Chen, represented by new counsel, filed another motion to reopen his

case on December 28, 2005. Chen alleged that two letters from doctors and a letter from

his wife qualified his case under the “changed circumstances” exception in 8 C.F.R. §

1003.2(c)(3)(ii). The BIA again denied the motion, finding the evidence insufficient to

constitute “changed circumstances.” Chen filed a timely appeal to this Court.

                                            II.

       Our review is limited to the BIA’s denial of Chen’s second motion to reopen.

Motions to reopen are generally viewed with disfavor and are granted only under



                                             3
compelling circumstances. INS v. Doherty, 502 U.S. 314, 323 (1992); Guo v. Ashcroft,

386 F.3d 556, 561 (3d Cir. 2004). We review the BIA’s denial of a motion to reopen for

abuse of discretion, and we will uphold the BIA’s decision unless we find the decision to

be arbitrary, irrational, or contrary to law. Guo, 386 F.3d at 562; see also Zheng v.

Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (noting the great deference afforded the BIA’s

decision to deny a motion to reopen).

                                            III.

       An alien may request that the BIA reopen its decision in a removal proceeding in

order to consider new evidence. 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). A

motion to reopen must be filed within 90 days of the date the BIA enters its final order or

decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Additionally, an alien

may make only one motion to reopen a final administrative order. 8 U.S.C. §

1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Untimely or additional motions may be heard if

the alien demonstrates a change in circumstances in the country to which the alien is to be

deported. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The “changed

circumstances” exception only applies where evidence of the change was unavailable for

the previous proceeding and could not have been discovered or presented at that hearing.

8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

       The BIA did not err in concluding that Chen’s second motion to reopen was both

untimely and exceeded the numerical limits set forth in the statute, as the motion the BIA



                                             4
denied was Chen’s second motion to reopen and was filed more than three years after the

completion of his removal proceedings. Additionally, the BIA did not abuse its discretion

when it determined that the “changed circumstances” exception did not apply to Chen’s

application. Chen offered three documents purporting to demonstrate changed

circumstances: two letters from different doctors confirming Chen had had a vasectomy,

and a letter from Chen’s wife explaining that the authorities are still looking to punish

Chen for breaking the population law. At best, this evidence establishes that Chen was

persecuted in the past or that conditions in China have not changed. The doctors’ letters

demonstrate only an existing medical condition that was the result of a previously-

performed operation; this does not demonstrate a change in China’s policies or

conditions. The fact that the authorities are still looking to punish Chen for violating a

policy that was and is still in place in China,2 as disclosed in the letter, is evidence that the

same conditions persist, rather than evidence of “changed circumstances.” See, e.g., Zhao

v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005) (finding evidence that police were still

looking for Falun Gong members to be cumulative evidence that conditions persisted

rather than evidence of changed circumstances); Betouche v. Ashcroft, 357 F.3d 147, 152

(1st Cir. 2004). Additionally, Chen failed to demonstrate that this evidence was




   2
     In fact, Chen refers to the continuous nature of this policy in the brief accompanying
his second motion to reopen. In that filing, Chen notes that “governmental officials are
still looking for him to punish him because he violated the coercive birth control policy
and illegally departed from China.” See App. at 19 (emphasis added).

                                               5
unavailable for the IJ hearing.3 Given that the regulation requires evidence that

circumstances have changed, not merely that persecution existed in the past, the BIA did

not act arbitrarily or capriciously when it determined that the evidence offered by Chen

did not implicate § 1003.2(c)(3)(ii).4

       Chen also suggests the BIA abused its discretion by failing to explicitly mention

the letter from Chen’s wife in the opinion it rendered. We disagree. When the BIA

reviews a claim, this Court requires only that the BIA demonstrate that it grasped the

alien’s claims and reviewed the record. See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d

Cir. 2002). Thus, the BIA need not mechanically and rigidly provide an accounting of

every piece of evidence or claim it considered in reaching its decision. While the BIA

might have been more detailed in its opinion in this matter, its explanation for denying

Chen’s application reveals that it reviewed the record and considered the claims put forth

by Chen. The mere failure to explicitly mention the letter does not make the BIA’s


   3
    In fact, the letter from Dr. Lau, dated April 22, 2000, was attached to Chen’s original
application to the BIA. See App. 131-32. The letter from Dr. Luangkhot, dated August
31, 2005, merely corroborates the finding of Dr. Lau. It is not newly-discovered
evidence, nor is there any argument offered by Chen that such medical evidence could not
have been produced at the IJ hearing.
   4
     At best, the evidence offered by Chen is cumulative evidence supporting his original
claim of asylum. The proffer of evidence accompanying Chen’s motion appears to be a
belated response to the IJ’s oral opinion, in which the IJ suggested that evidence of
Chen’s vasectomy and an affidavit from his wife might strengthen his claim for asylum
and his credibility as a witness. See App. at 144. The adverse credibility finding of the IJ
is not before us, and the fact that this evidence may have bolstered Chen’s credibility had
it been offered at the hearing before the IJ does not affect our holding that the BIA did not
abuse its discretion in denying Chen’s motion.

                                             6
decision arbitrary, irrational, or inconsistent with the law; thus, the BIA did not abuse its

discretion.

       Because Chen cannot show the applicability of one of the exceptions to the time

and number requirements set forth in § 1003.2(c)(2), the BIA did not abuse its discretion

in denying Chen’s motion to reopen.

                                             IV.

       We have considered all other arguments made by the parties on appeal, and

conclude that no further discussion is necessary. For the foregoing reasons, we conclude

that the BIA did not abuse its discretion in denying the motion to reopen despite the new

evidence Chen offered, and we will accordingly deny the petition for review.




                                              7
