Haizem Liu v. Holder , 727 F.3d 53 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 13-1232
HAIZEM LIU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Joshua Bardavid on brief for petitioner.
Richard Zanfardino, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Terri J. Scadron, Assistant Director, were on brief for respondent.
August 13, 2013
LYNCH, Chief Judge. Haizem Liu,1 a native and citizen of
the People's Republic of China, was denied asylum and withholding
of removal, as well as protection under the U.N. Convention Against
Torture (CAT), and ordered removed to China by an Immigration Judge
(IJ) in June 2003. The Board of Immigration Appeals (BIA) affirmed
the IJ's removal order in 2004. But Liu did not leave the United
States.
In June 2012, about eight years later, she sought to
reopen proceedings on the ground of changed country conditions in
China. The BIA denied this motion to reopen and Liu now petitions
for review of that denial.
We deny the petition. This is one of a series of cases
in which we have similarly upheld the BIA's determination that
there have not been changed country conditions for Christians
returned to China who wish to practice in unregistered churches,
such as to warrant an exception to the time limits on motions to
reopen. See generally Yang Zhao-Cheng v. Holder, No. 12-2335, 2013
WL 3942931 (1st Cir. Aug. 1, 2013); Xiu Xia Zheng v. Holder, 502 F.
App'x 13 (1st Cir. 2013) (per curiam); Hang Chen v. Holder, 675
F.3d 100 (1st Cir. 2012); Le Bin Zhu v. Holder, 622 F.3d 87 (1st
Cir. 2010).
1
Petitioner's most recent affidavit states that her name is
Hai Zhen Liu. We use the name that appears in the immigration
records and is used by the government in its briefing.
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I.
Liu entered the United States without inspection on
August 30, 2001 near Calexico, California. She was detained that
same day and on August 31, 2001, was charged with inadmissability
under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the
United States without being inspected or paroled. Liu conceded her
removability, and sought asylum and withholding of removal on the
basis that she feared persecution because of her practice of Falun
Gong. The IJ denied both forms of relief on June 19, 2003 and
ordered Liu removed to China. Liu appealed to the BIA, which
summarily affirmed the IJ's decision on September 2, 2004.
Petitioner did not seek judicial review.
On June 11, 2012, Liu filed a motion with the BIA to
reopen her case. A motion to reopen generally must be filed within
ninety days of the final administrative decision. See 8 C.F.R.
§ 1003.2(c)(2), (3). Liu claimed that she had converted to
Christianity2 in November 2011. She began attending services at
the Church of Grace to Fujianese, a Protestant church in Chinatown
in New York. Her motion to reopen claimed that since her last
appearance in immigration court in March 2003, "conditions related
to treatment of Christians in China" had "fundamentally changed and
. . . significantly worsened." She argued that she fell within the
2
In her original asylum application filed in August 2002, Liu
had identified her religion as "Buddhism."
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"changed country conditions" exception to the ninety-day rule. See
8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
Liu submitted a number of documents, including her new
affidavit and new asylum application3 and a letter from a friend in
China who claimed to have been jailed in November 2011 because of
being Christian. In addition, she provided a U.S. State Department
Country Report on Human Rights Practices in China published in
2003, two Congressional-Executive Commission on China Annual
Reports, a 2009 State Department Country Report, a 2010 State
Department International Religious Freedom Report, and various
newspaper articles and reports from other organizations.
In a January 22, 2013 opinion, the BIA denied Liu's
motion to reopen. The BIA first rejected the motion because Liu's
conversion to Christianity "represent[ed] a change in personal
circumstances" and not a change in country conditions. Turning to
the purported change in country conditions, the BIA determined that
the letter from Liu's friend was to be given "very little weight"
because it lacked detail, was written for purposes of the
proceedings, and did not establish a change in country conditions.
The BIA reasoned that the other documentation did not show a
worsening of conditions in China for Christians, but rather showed
3
Liu admitted in her affidavit that the Chinese government
allows some churches to operate, but they must be registered. She
said she would not be willing to attend a registered church because
the ministers work for the government and they are not "genuine
churches." Hence, she would attend unregistered churches.
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that mistreatment of some Christians in China was a "longstanding
and ongoing problem." Finally, the BIA stated that there was not
adequate evidence that Liu would be persecuted upon her return to
China because there was no evidence that Chinese authorities knew
or were likely to become aware of Liu's adoption of Christianity.
Liu makes three challenges in her petitions for review:
(1) that the BIA erred in "rejecting" the letter from Liu's friend;
(2) that the BIA abused its discretion in finding no change in
country conditions;4 and (3) that the BIA erred in finding that she
did not make a prima facie case of persecution on account of her
religious beliefs because Chinese authorities would not likely
discover her religious activity. We reject Liu's first two
challenges and have no need to reach the third.
II.
A. Legal Background
Motions to reopen removal proceedings are disfavored.
See, e.g., Hang Chen, 675 F.3d at 105 (noting compelling public
interest in finality); Le Bin Zhu, 622 F.3d at 91 (acknowledging
strong public interest in promptly ending litigation). As a
result, the BIA enjoys wide latitude in deciding such motions and
we review the BIA's decision for abuse of discretion. Le Bin Zhu,
4
Notably, Liu does not challenge the BIA's determination that
her conversion to Christianity constitutes a change in personal
circumstances, not a change in country conditions, and thus cannot
serve as a basis to reopen.
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622 F.3d at 91. That is, we uphold the decision "unless the
complaining party can show that the BIA committed an error of law
or exercised its judgment in an arbitrary, capricious, or
irrational way." Id. (quoting Raza v. Gonzales, 484 F.3d 125, 127
(1st Cir. 2007)) (internal quotation marks omitted).
Ordinarily, motions to reopen must be submitted within
ninety days of the final administrative decision. Raza, 484 F.3d
at 127 (citing 8 C.F.R. § 1003.2(c)(2)). One exception is if
"[the] alien makes a convincing demonstration of changed conditions
in his homeland." Id. The motion must present new facts that will
be proven at a hearing if the motion is granted. 8 C.F.R.
§ 1003.2(c)(1). Additionally, the new evidence must have been
unavailable and undiscoverable at the time of the former hearing
and it must be material. Le Bin Zhu, 622 F.3d at 92; 8 C.F.R.
§ 1003.2(c)(3)(ii). Particularly relevant here, the evidence "must
demonstrate the intensification or deterioration of country
conditions, not their mere continuation." Tawadrous v. Holder, 565
F.3d 35, 38 (1st Cir. 2009).
B. The Letter from Liu's Friend in China
Liu misrepresents the record in first arguing that the
BIA erred "in rejecting the supporting letter of Ms. Liu's friend
in China." The BIA did not reject the letter, but stated that the
letter would receive "very little weight."
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The BIA did not abuse its discretion in making that
determination and it provided sufficient reasoning. The BIA
justifiably noted that the letter was "scant on detail." The
letter is only four short paragraphs and merely states that the
friend was detained for being a Christian and that she believes Liu
would be arrested if Liu returned to China and continued to attend
church. It provides few specifics about the circumstances of the
friend's arrest. The BIA also permissibly considered that the
letter was prepared for the reopening motion.5 See Gi Kuan Tsai v.
Holder, 505 F. App'x 4, 8 (1st Cir. 2013) (BIA within its
discretion to decide letters did not establish materially changed
circumstances where "each was produced for the purpose of reopening
[the] final order of removal and written by the petitioner's family
or a person close to the petitioner"); cf. Zheng v. Mukasey, 546
F.3d 70, 72 (1st Cir. 2008) ("Absent substantiation, self serving
affidavits from petitioner and her immediate family are of limited
evidentiary value."). In any event, the letter offers no insight
into how or if conditions in China had changed, and would not have
satisfied Liu's burden.
5
Liu wrongly argues that the BIA could not discount the
letter for this reason because "Ms. Liu is required by both statute
and regulation to submit all reasonably available evidence to
corroborate her claims on motion." The reason for which the letter
was prepared provides insight into its likely veracity and
reliability, as does its lack of detail and conclusory assertions.
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C. Change in Country Conditions Determination
In determining if evidence submitted in support of a
motion to reopen demonstrates a material change in country
conditions justifying reopening of proceedings, the BIA "compare[s]
the evidence of country conditions submitted with the motion to
those that existed at the time of the merits hearing below." In re
S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007).
The BIA reasonably concluded that the mistreatment of
Christians who attend unregistered churches had not materially
worsened since 2003 but rather was a longstanding and ongoing
condition. The 2003 State Department Country Report, which serves
as a baseline, stated that government respect for religious freedom
was "poor" and that "crackdowns" against unregistered groups,
"including underground Protestant and Catholic groups, continued."
In some areas religious services were broken up and leaders and
followers harassed, fined, beaten, and detained. Other materials
show that churches were demolished or closed in that time frame and
certain church leaders had been arrested and were missing since
before 2003.
Several of Liu's documents did not show an escalation in
mistreatment of Christians post-2003. The 2009 State Department
Country Report stated that "[t]he government continued to strictly
control religious practice and repress religious activity outside
government-sanctioned organizations and registered places of
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worship" (emphasis added). Likewise, the 2010 Congressional-
Executive Commission on China Annual Report stated that officials
"continued . . . to harass and, in some cases, detain and imprison
members of unregistered Protestant churches, while also razing
church property" (emphasis added), and "continued to arbitrarily
harass, intimidate, detain, or imprison some of the estimated 50 to
70 million Chinese Protestants who worship in China's unregistered
congregations" (emphasis added).6
Other documents evidenced improved treatment of
Christians in China since 2003. A 2010 Immigration and Refugee
Board of Canada report states that "[s]ources report that many
Christian groups, even those which are unregistered, are becoming
more public and able to carry out their activities openly." It
cites one researcher finding "reduced hostility" to Christianity in
China.
Liu heavily relies on news articles stating that the
degree of persecution has increased and that a crackdown on
unregistered churches was coinciding with "the most expansive
assault on dissent in China in years." The non-government group,
China Aid, claims an almost 200% increase in the "overall situation
of persecution" against Christians from 2006 to 2010. The BIA is,
6
The 2009 Report made similar findings that "[o]fficials
continue to subject Protestants who refuse to register to
harassment, detention, imprisonment, and forced church closure."
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of course, not bound by an outside group's categorization of what
counts as persecution or its estimates.
The BIA did not abuse its discretion in giving greater
weight to the other documents, including the State Department
reports and Congressional-Executive Commission reports, that
describe the problems as ongoing. See Hang Chen, 675 F.3d at 108(stating that BIA must consider evidence contradicting State
Department reports but noting that State Department reports are of
"high probative value"). Nor did the BIA need to discuss each
piece of evidence individually. See Raza, 484 F.3d at 128 ("An
agency is not required to dissect in minute detail every contention
that a complaining party advances. It is enough if the agency
fairly considers the points raised by the complainant and
articulates its decision in terms adequate to allow a reviewing
court to conclude that the agency has thought about the evidence
and the issues and reached a reasoned conclusion."). The BIA
considered the evidence in its entirety and made a reasoned
judgment in exercising its discretion.
Contrary to Liu's argument, our circuit's decision in
Smith v. Holder, 627 F.3d 427 (1st Cir. 2010), does not compel a
different result. Smith involved a motion to reopen by an activist
political leader based on a claim of political persecution that
followed a swell of electoral support for the political opposition
in Zimbabwe, which led to a crackdown by the ruling party on
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opposition figures. Smith presented strong new evidence of changed
conditions. Among the new evidence was the attack on and
destruction of his family's home in retaliation for their political
activity, the killing of a cousin, and a new government program
under which returning failed asylum seekers were harshly
interrogated and beaten. Id. at 431. We held that the BIA
committed an error of law in concluding that, because the
petitioner was not in the country to experience changed country
conditions, he had not established a material change. Id. at 435-
36. The BIA did not rely on any such reasoning here. Further, the
evidence in Smith did establish intensification and not a mere
continuation of earlier conditions. Id. at 436 n.9. The
petitioner in Smith presented materials showing that his family had
been intimidated and physically attacked for their political views.
Id. at 431. He also presented reports from government and non-
government entities that agreed that human rights abuses in his
home country were worsening. Id. at 431-32. That simply is not
the case here.
Where a petitioner fails to establish changed
circumstances, it is not necessary to reach the issue of whether
she has made out a prima facie case for relief. See, e.g., Gi Kuan
Tsai, 505 F. App'x at 9. Hence, we do not reach that issue here.
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III.
The BIA did not abuse its discretion in concluding that
Liu did not make a "convincing demonstration of changed conditions"
in China for Christians practicing in unregistered churches, as
needed to warrant reopening the proceedings. Le Bin Zhu, 622 F.3d
at 92 (quoting Raza, 484 F.3d at 127). Accordingly, the petition
for review is denied. So ordered.
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