Ming Chen v. Holder , 722 F.3d 63 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2055
MING CHEN,
Petitioner,
v.
ERIC H. HOLDER., JR., Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Zhong Yue Zhang, a/k/a John Z. Zhang, on brief for petitioner.
Lori B. Warlick, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Principal Deputy Assistant Attorney
General, and Melissa Neiman-Kelting, Senior Litigation Counsel,
Office of Immigration Litigation, on brief for respondent.
July 9, 2013
HOWARD, Circuit Judge. Ming Chen, a native and citizen
of the People's Republic of China, petitions this court for review
of the Board of Immigration Appeal's ("BIA") order denying his
motion to reopen removal proceedings as untimely. Because Chen
failed to satisfy any of the exceptions to the time limit for a
motion to reopen, we deny his petition.
I.
Chen entered the United States with a fraudulent passport
in June 1997. In January 1998, the legacy Immigration and
Naturalization Service served him with a Notice to Appear ("NTA").
The NTA alleged that Chen had entered the United States through
fraud or willful misrepresentation, and did not otherwise have a
valid immigration entry document, rendering him removable under 8
U.S.C. § 1227(a)(1)(A). Chen submitted an application for asylum
and withholding of removal. He claimed that he had been persecuted
by the Chinese authorities as the second of three children born to
his parents, in violation of China's one-child policy. An
immigration judge denied this relief in September 1998. The BIA
affirmed this decision in August 2002, and Chen did not seek
further review.
Although the next step should have been Chen's removal
from the United States, he remained in the country for another nine
years. He resurfaced in 2011 to file a motion to reopen his
removal proceedings. Attached to this motion to reopen was a
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successive application for asylum and withholding of removal based
on Chen's membership in the China Democracy Party ("CDP").
According to the materials submitted in support of the application,
Chen had joined the CDP in 2010 and Chinese government officials
had become aware of his political activity in early 2011, exposing
him to the risk of persecution if he returned to China. He
submitted a letter, purportedly written by his mother, describing
how two government officials had visited her home in China to ask
questions about Chen's political advocacy. According to her
account, they told her that Chen would face imprisonment if he
returned to China.
Though Chen's motion to reopen fell well outside the
ninety-day deadline set forth in the regulations, see 8 C.F.R.
§ 1003.2(c)(2), Chen argued that his motion was based on changed
country conditions in China and therefore the deadline was
inapplicable, id. § 1003.2(c)(3)(ii). In particular, he noted that
the Chinese government had not initiated crackdowns against the CDP
until November 1998 -- after his last hearing in September 1998 --
and consequently the persecution of CDP members was by definition
a changed country condition. Additionally, he claimed that the
Chinese government had moved to suppress pro-democracy groups
beginning in 1998 and continuing to the present. Those against
whom these actions allegedly have been taken include members of
groups operating in the United States who later returned to China.
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In March 2012, the BIA denied Chen's motion to reopen as
untimely, concluding that he had not demonstrated changed country
conditions that would exempt his motion from the deadline imposed
in the regulations. It first determined that the letter from
Chen's mother lacked indicia of reliability to prove changed
country conditions, since the letter was not notarized and, even if
it was authentic, it came from "an interested party not subject to
examination."1 The BIA further held that Chen's involvement in the
CDP only constituted a change in his personal circumstances, and
not a change in country conditions.
The BIA next looked to the broader claim that conditions
had worsened for the CDP and democracy activists since 1998. Since
the CDP had only recently come into existence at the time of Chen's
last immigration hearing, the BIA looked at the conditions for
democracy activists in general and found that "the treatment of
pro-democracy activists at the time of the respondent's last
hearing was similar to that described in [the latest country
report]." It concluded that, "to the extent that the respondent's
motion is not based on a change in his personal circumstances, we
nonetheless do not find the respondent has met his burden of
1
The BIA incorrectly referred to Chen's father as the author
of this letter. Chen has not raised any issue relating to this
mistake. In fact, his brief also mistakenly identifies his father
as the author of the letter. This error is not relevant to our
decision.
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showing material, changed conditions in China." The BIA denied his
motion to reopen, and he petitioned us to review this decision.
II.
The BIA has "broad discretion, conferred by the Attorney
General, to 'grant or deny a motion to reopen.'" Kucana v. Holder,
558 U.S. 233, 250 (2010) (quoting 8 C.F.R. § 1003.2(a)).
Accordingly, we review the BIA's denial of Chen's motion to reopen
for abuse of discretion. Smith v. Holder, 627 F.3d 427, 433 (1st
Cir. 2010). Under this standard, "we uphold the agency's
subsidiary findings of fact as long as they are supported by
substantial evidence, we review embedded legal conclusions de novo,
and we review judgment calls for abuse of discretion." Id.(quoting Vaz Dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir. 2010))
(internal quotation marks omitted). Chen's motion to reopen
indisputably fell outside of the time limits prescribed in 8 C.F.R.
§ 1003.2(c)(2). The question is whether Chen qualifies for an
exception to the time limit because his motion is "based on changed
circumstances arising in the country of nationality . . . [that
are] material and . . . could not have been discovered or presented
at the previous hearing." 8 C.F.R. § 1003.2(c)(3)(ii).
Chen's evidence of changed country conditions falls into
two categories: 1) evidence that he has become a target of the
government since he joined the CDP; and 2) evidence that since 1998
the Chinese government has cracked down on the CDP and pro-
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democracy groups more generally. The first category of evidence
cannot sustain a showing of changed country conditions; it only
indicates a change in Chen's personal circumstances. "Under the
case law, a change typically will be categorized as a change in
personal circumstances, as opposed to a change in country
circumstances, if the change is self-induced." Larngar v. Holder,
562 F.3d 71, 76 (1st Cir. 2009). This prevents aliens from
repeatedly reopening their removal proceedings based on changes
that are within their control. See Wang v. B.I.A., 437 F.3d 270,
274 (2d Cir. 2006) ("[I]t would be ironic, indeed, if petitioners
like Wang, who have remained in the United States illegally
following an order of deportation, were permitted to have a second
and third bite at the apple simply because they managed to marry
and have children while evading authorities."). This rule applies
even if the change in personal circumstances will expose the alien
to persecution in his home country. See Khan v. Attorney Gen. of
U.S., 691 F.3d 488, 497 (3d Cir. 2012) (holding that a petitioner's
decision to join the Awami National Party was a change in personal
circumstances, despite evidence that ANP members are targeted in
Pakistan).
The evidence shows that any risk that Chen faces in China
is not because of changes within that country, but due to his
personal decision to engage in political activism. Chen began
advocating for democratic reform in 2010. In 2011, Chinese
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government officials allegedly visited his parents' home and
threatened to arrest Chen because "he joined the reactionary
organization -- China Democracy Party in the United States." This
account, coupled with the lack of any threats prior to 2010,
supports only the conclusion that the government was responding to
Chen's nascent political activity. We need not question the
sincerity of Chen's civil disobedience; even assuming that Chen
joined the CDP out of a desire to change China's political
institutions, he did so long after the United States had ordered
him removed. He knew, or should have known, that he could not
legally remain in this country, and that he would be returned to
China. His decision to join the CDP was made in light of that
probability. That decision, therefore, cannot, by itself, form the
basis of a motion to reopen his removal proceedings after the
deadline has passed.2
Rather than address this defective proof of changed
conditions, Chen focuses his argument on the second category of
evidence that he presented to the BIA -- evidence that the Chinese
government has cracked down on democracy activists since 1998. The
articles and documents that Chen submitted do not paint a
flattering picture of the Chinese government's treatment of pro-
democracy groups. Taken at face value, they show that the Chinese
2
Because we reach this conclusion assuming the truthfulness
of Chen's evidence, we need not address the BIA's finding that the
letter from Chen's mother lacked reliability.
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government has consistently targeted and suppressed pro-democracy
activists since well before 1998. According to Chen's submissions,
Chinese citizens who openly criticize their government regularly
face harassment, detention, and "re-education," and the submissions
indicate that little has changed to this day. At the very least,
the documents Chen provided do not "point[] unerringly" to a
finding that Chinese policy materially changed since before Chen's
application was adjudicated. Gilca v. Holder, 680 F.3d 109, 114
(1st Cir. 2012) (quoting Nikijuluw v. Gonzales, 427 F.3d 115, 120
(1st Cir. 2005)) (internal quotation marks omitted). Thus, the
BIA's factual finding as to conditions in China is backed by
substantial evidence.
This is true even considering the Chinese government's
alleged treatment of the CDP in particular. According to Chen, the
relevant change in country conditions is a "crackdown" that the
Chinese government initiated against the CDP in November 1998.
Chen's argument glosses over a salient point: the CDP was, at
that time, only a fledgling pro-democracy group. The record shows
that the CDP first applied for registration with the Chinese
government in June 1998. The government promptly rejected that
application and began arresting CDP leaders only months later.
Accordingly, the "crackdown" against the CDP would not have
constituted a material change in country conditions; at most it
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would be an example of the Chinese government swiftly suppressing
a newly organized group.
To the extent that Chen suggests that the founding of the
CDP, by itself, constitutes a changed material condition within
China, we reject that argument. The treatment of particular groups
is certainly relevant to assessing country conditions. But when,
as here, a new political group advances a cause that other groups
have already advanced and receives the same harsh treatment as the
prior advocacy groups, the group's formation alone does not
constitute a changed country condition.
Similarly, Chen's allusion to the Chinese government's
alleged recent efforts to silence Internet dissent does not
demonstrate changed country conditions. The Internet has emerged
as an effective tool for dispersing ideas in authoritarian
societies, and the Chinese government's purported desire to control
that medium is entirely consistent with its general approach toward
pro-democracy activism. See Qing Chen v. Attorney Gen. of U.S.,
428 F. App'x. 212, 215 (3d. Cir. 2011) (per curiam) ("[T]he Chinese
Government's efforts to control activism via the internet [are]
merely part of its ongoing history of suppressing dissent and
controlling the dissemination of barred ideas and material."
Indeed, Chen submitted a 1997 State Department report that noted an
existing law prohibiting Internet activities that incite "division
of the country." U.S. Department of State, China Country Report on
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Human Rights Practices for 1997 8 (1998). In sum, we uphold the
BIA's finding that country conditions have not materially changed
within China.
III.
The BIA's refusal to reopen was not an abuse of its
discretion. Accordingly, Chen's petition for review is denied.
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