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


3-6-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4312




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                  Case No: 06-4312

                                  SAI ZHU CHEN,

                                                 Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                 Respondent


            On Petition for Review from the Board of Immigration Appeals,
                                BIA No. A70-897-099
                Immigration Judge: The Honorable Charles Honeyman


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 February 14, 2008

                   Before: SLOVITER, and SMITH, Circuit Judges,
                             DIAMOND, District Judge *

                                (Filed: March 6, 2008)




                                      OPINION


SMITH, Circuit Judge:



   *
   The Honorable Gustave Diamond, Senior District Judge for the United States District
Court for the Western District of Pennsylvania, sitting by designation.
       Sai Zhu Chen (“Chen”) seeks review of an order issued by the Board of

Immigration Appeals (“BIA”) on September 5, 2006, which adopted and affirmed the

decision of the Immigration Judge (“IJ”) denying Chen’s motion to reopen her

deportation proceedings and reinstate her asylum application.1 Chen entered the United

States in April 1993 and in her request for asylum, she indicated that the Chinese

government had persecuted her because she had refused to submit to sterilization

procedures after twice submitting to the insertion of an intrauterine device (“IUD”). She

claimed that she was first subjected to the insertion of an IUD in 1979 following the birth

of her second child.2 Nonetheless, she claimed the IUD fell out and that she became

pregnant again, delivering a daughter in 1981. After this delivery, Chen was subjected to

yet another procedure to have the IUD replaced. She stated in her amended asylum

application 3 that she was forced to put her third child up for adoption in 1981 because the

baby could not be placed on her household register. Prior to fleeing from China in 1993,

Chen believed the Chinese Government was preparing to have her sterilized.


   1
    The BIA had jurisdiction over Chen’s motion to reconsider pursuant to 8 C.F.R. §
1003.2. We have appellate jurisdiction over the BIA’s denial of the motion to reopen
because it is a final order of removal for purposes of 8 U.S.C. § 1252. Sevoian v.
Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).
   2
      Chen was born in Changle City, Fujian Province on March 21, 1953. She and her
first husband, who died, have three children in China; two sons were born in 1975 and
1977 respectively, and a daughter was born in 1981.
   3
     In her initial 1993 asylum application, Chen stated that officials had removed
furniture from her home and warned her to have surgery. Chen did not assert that an IUD
was forcibly inserted until she amended her asylum application in 1996.

                                             2
       In January 1997, Chen was served with an Order to Show Cause charging that she

was subject to deportation because she entered the United States as an alien without

inspection. 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present in the United States without

being admitted or paroled, or who arrives in the United States at any time or place other

than as designated by the Attorney General, is inadmissible.”). In August 2001, Chen

married George Chen (“George”), a United States citizen. The marriage prompted

George to file a visa petition on her behalf, which allowed Chen to proceed with a

consular process. After initially filing a motion to adjourn her deportation proceedings

which was granted in February 2004, Chen filed another motion to adjourn removal

proceedings and stated: “Even if unable to obtain third country processing prior to her

individual hearing . . . she agree[s] to accept voluntary departure before this Court due to

the likelihood of success, as she can demonstrate a bona fide marriage to a U.S. citizen.”

On April 12, 2005, the IJ withdrew Chen’s application for asylum and granted her request

for a voluntary departure within a year. However, Chen subsequently filed a motion to

reopen deportation proceedings for reinstatement of her asylum application in March

2006. She divorced her husband, a U.S. citizen, in January 2006. Chen requested that the

IJ reinstate and reopen her case to pursue asylum based on “the birth control related

persecution that she suffered in China.”

       On April 17, 2006, the IJ denied Chen’s motion to reopen. The IJ determined that

her second marriage to a U.S. citizen that ended in divorce was insufficient to justify



                                              3
reopening the proceedings and, furthermore, that Chen’s age, marital status, and three

adult children dictated that the possibility of a forced sterilization was “both remote and

speculative at this point in time.” Chen filed an appeal of the IJ’s denial to the BIA. The

BIA dismissed Chen’s appeal. It concluded that the IJ had appropriately found that she

had not demonstrated a well-founded fear of future persecution. The BIA further

explained that it was not persuaded that Chen was either “prima facie eligible for asylum

based on past forcible insertion” of an IUD, or that forcible insertion of an IUD was “in

the same category as a forcible abortion or forced sterilization.” It recognized that some

Courts of Appeals had considered the issue of whether forcible insertion of IUDs

constituted persecution under 8 C.F.R. § 1101(a)(42), but noted that the Third Circuit had

yet to address the issue.

       This timely petition for review followed. Because the BIA adopted and affirmed

the IJ’s denial of the motion to reopen, and set forth its own brief rationale, we review the

decisions of both the BIA and the IJ. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

We review any findings of fact for substantial evidence and the ultimate denial for an

abuse of discretion. See Korytnyuk v. Ashcroft, 396 F.3d 272, 280 (3d Cir. 2005). An

abuse of discretion will be found if the denial of a motion to reopen “is arbitrary,

irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). We

are mindful that motions to reopen are generally disfavored. Abudu v. INS, 485 U.S. 94,

107 (1988).


                                              4
       Chen argues that the BIA abused its discretion by affirming the denial of her

motion to reopen. She asserts that the IJ’s finding that she did not establish that she had a

well founded fear of future persecution was nothing more than speculation and

conjecture. Because there is nothing of record to contradict her claim that the IUDs she

had were forcibly inserted, she contends there is no support for the BIA’s determination

that she failed to meet her burden of proof. In addition, she contends that the refusal to

grant her motion to reopen conflicts with the BIA’s decision in a case remanded by the

Seventh Circuit. See Zheng v.Gonzales, 409 F.3d 804 (7th Cir. 2005).

       We find no error in the BIA’s affirmance of the IJ’s denial of the motion to reopen.

The determination that Chen did not have a well founded fear of forced sterilization was

not irrational in light of Chen’s willingness in 2005 to withdraw her application for

asylum and to voluntarily depart to China, and Chen’s age and circumstances when she

filed her motion to reopen. Although Chen relies on Zheng as authority that she has a

viable claim that warranted reopening her application, she fails to recognize that Zheng’s

persuasiveness in the case sub judice is limited for several reasons. First, the facts in

Zheng are distinguishable as the alien was only thirty six years old and the BIA assumed

that her testimony that she was repeatedly forced to have an IUD inserted, despite

suffering complications after the first procedure and having the IUD removed on three

occasions, was credible. Second, the BIA also assumed that the alien’s theory of

persecution was cognizable even though no court of appeals had yet to weigh in on



                                              5
whether an alien can establish persecution on the basis that she was forced to submit to

the implantation of an IUD. Remand was required, the Seventh Circuit concluded,

because the denial of Zheng’s claim was unsupported and unreasoned in light of the

operative assumptions. These assumptions, however, are not present in this case.

       Accordingly, we will deny Chen’s petition for review of the BIA’s order affirming

the IJ’s refusal to reopen her application for asylum.




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