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


12-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4360




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BLD-109
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 07-4360
                                   ________________

                                    CHEN ZHI MING,
                                                              Petitioner

                                            v.

                          ATTORNEY GENERAL OF THE
                                 UNITED STATES
                     ______________________________________

                       On Petition for Review of a Decision of the
                            Board of Immigration Appeals
                               (Agency No. A78-852-463)
                         Immigration Judge: Daniel A. Meisner
                     _______________________________________

               Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  January 25, 2008

                Before: MCKEE, RENDELL and SMITH, Circuit Judges

                            Opinion Filed: December 17, 2008
                              _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Zhi Ming Chen filed a petition for review from the Board of Immigration

Appeals’s (“BIA”) order denying his motion to reopen. The government has moved for

summary denial of the petition. We will grant the government’s motion because the

petition for review presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6;
Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002).

                                              I.

       Chen is a native and citizen of the People’s Republic of China, Fujian Province.

He entered the United States in August 2001 and received a notice to appear in June

2002. In October 2002, more than a year after his arrival in the United States, he filed an

application for political asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). He claimed that he was persecuted under China’s family

planning laws after his wife gave birth to their second child in 1996 and that he feared

that he would be sterilized if forced to return to China. At his October 31, 2002 removal

proceedings, the Immigration Judge (“IJ”) determined that Chen was statutorily ineligible

for asylum because his application was untimely and that he was not credible. In

particular, the IJ found that Chen failed to testify credibly or produce any official

documentation that he was actually the father of two children. That, in conjunction with

other gaps in his story and the background materials—which indicated that it was much

more likely that a woman would be sterilized—led the IJ to state that “[i]t simply seems

incredible to me that the respondent truly fears sterilization upon return to China.” The

BIA summarily affirmed the IJ’s decision on April 9, 2004. Chen did not file a petition

for review of the BIA’s summary affirmance.

       Chen did, however, file a motion to reopen on June 4, 2007, which the BIA denied

as untimely. The BIA rejected his arguments that the ninety-day statute of limitation for



                                              2
motions to reopen should be equitably tolled due to ineffective assistance of counsel

and/or that the time limitation should not apply due to changed circumstances in China.

The BIA acknowledged that ineffective assistance of counsel can equitably toll the statute

of limitation, but it found that Chen was ineligible for relief because he did not exhibit

due diligence in seeking reopening. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d

Cir. 2005). Chen also argued that the motion’s untimeliness should be excused under 8

C.F.R. § 1003.2(c)(3)(iii), because of Fujian Province’s recent implementation of the

allegedly stricter family planning laws. Although Chen submitted a few unverified news

articles that discussed the implementation of the family planning laws, the thrust of his

claim was that the BIA should take judicial notice of documents submitted to the Second

Circuit Court of Appeals in Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006). The BIA

declined to consider documents not in the record 1 and found that the documents that Chen

did submit were insufficient to demonstrate a change of country conditions. Moreover,

the BIA found that Chen did not establish an exception to the statute of limitation because

the IJ had determined that Chen was not credible “with respect to his coercive population




   1
       The BIA noted that although the Third—not the Second—Circuit had jurisdiction
over the petition for review, the Second Circuit recently held that citing to documents
relied on in other cases is not sufficient to show changed country conditions or
circumstances. See Zheng v. United States Dep’t of Justice, 2007 WL 4480591, at *1 (2d
Cir. Dec. 21, 2007) (“In light of our recent decision in Xiao Xing Ni v. Gonzales, 494
F.3d 260 (2d Cir. 2007), we no longer find it appropriate to remand to the BIA for
consideration of the documents referenced in . . . Guo . . . because those documents are
not contained in the administrative record of this case.”).

                                              3
claim,” and because the BIA had summarily affirmed the adverse credibility finding.

Finally, the BIA found that Chen would be subject only to a fine for illegally departing

China and that this was not enough to qualify for relief under the CAT.

                                             II.

       We have jurisdiction over the petition under 8 U.S.C. § 1252 and review the BIA’s

denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241,

251 (3d Cir. 2006). Under that standard, the BIA’s decision may be reversed only if it is

“arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.

2002). We conclude that the BIA did not abuse its discretion by denying Chen’s motion

to reopen as untimely.

       Generally, motions to reopen must be filed no later than ninety days after the date

of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2). Although the time restriction is subject to equitable tolling for ineffective

assistance of counsel, Chen—who raised the ineffectiveness issue three years after the

BIA’s affirmance of the IJ’s decision—did not exercise the diligence necessary for tolling

to apply. See Mahmood, 427 F.3d at 251. The time limit may also be suspended where

the petitioner introduces evidence of changed country conditions that “is material and was

not available and could not have been discovered or presented at the previous hearing.”

See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Johnson v. Aschcroft, 286

F.3d 696, 704 (3d Cir. 2002). Nevertheless, even if the exception to the time limitation



                                              4
for changed circumstances is met, the BIA will not grant a discretionary motion to reopen

unless the petitioner establishes prima facie eligibility for the relief he seeks. Guo v.

Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004). This standard requires the petitioner to

“produce objective evidence showing a reasonable likelihood that he can establish that he

is entitled to relief.” Id. (internal quotations and citations omitted).

       Here, regardless of whether Chen submitted new evidence sufficient to show

newly stricter implementation of the Chinese family planning laws, he did not establish

that he was eligible for asylum or other relief, and thus the BIA did not abuse its

discretion in denying the motion. See id. Because Chen’s asylum claim is the same in his

motion to reopen as it was in his initial application, the BIA appropriately relied on the

IJ’s original adverse credibility finding in evaluating the motion to reopen. See id. at 562.

In particular, the IJ found that Chen failed to testify credibly or demonstrate with official

documentation that he was the father of two children. Chen did not submit any new

evidence in his motion to reopen to cause the BIA to doubt the adverse credibility finding.

Thus, because having children is a necessary component of Chen’s claim, he could not

show a reasonable likelihood that he was entitled to relief. See id. at 563. Accordingly,

the BIA did not abuse its discretion in denying his motion to reopen.

       Moreover, the documents that Chen submitted with his motion to reopen appear

insufficient to establish his fear of sterilization. Chen submitted three newspaper articles

from the World Journal, a Chinese language newspaper published in the United States



                                               5
and Canada, which purport to describe enforcement of the family planning laws in Fujian

Province. Chen did not, however, submit any affidavits from his family (who allegedly

live in China), the U.S. State Department Country Condition reports, or any other type of

documentation that would indicate that he has a legitimate fear of sterilization. Thus,

even if Chen had introduced evidence that he had two children, he did not submit

sufficient evidence to make out a prima facie case for asylum or other relief (or, more

precisely, that the BIA did not abuse its discretion in so concluding). See Zubeda v.

Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).

       Finally, as he provided no new evidence supporting his claim under the CAT, the

BIA did not abuse its discretion in determining that the proceedings should not be

reopened due to Chen’s fear that he would be subject to torture because he left China

illegally. See 8 C.F.R. § 1003.2(c)(3)(ii); 8 C.F.R. § 208.16(c)(4) (to be entitled to CAT

protection, an applicant must prove that it is more likely than not that he would be

tortured if removed to the proposed country of removal).

       For these reasons, we will grant the government’s motion for summary denial of

Chen’s petition for review. Chen’s motion for a stay of removal is denied.




                                              6
