Xiu Yun Wang v. U.S. Attorney General , 387 F. App'x 933 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 20, 2010
No. 09-16078 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A095-455-458
XIU YUN WANG,
a.k.a. Xiu Yun Huang,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 20, 2010)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
Petitioner Xiu Yun Wang, a native and citizen of China, petitions this court
to review the order of the Board of Immigration Appeals’ (“BIA”) denying her
untimely motion to reopen her removal proceedings, 8 C.F.R. § 1003.2(a). Wang
argues that (1) this court should look to the 1951 Geneva Refugee Convention
(“Refugee Convention”) and the 1967 Protocol Relating to the Status of Refugees
(“1967 Protocol”) when interpreting and applying the procedural limitations of the
Immigration and Nationality Act of 1952 (“INA”); (2) the BIA erred in declining
to exercise its discretion to sua sponte reopen her case; (3) several provisions of
the INA violate the Due Process Clause, and its equal protection component, of
the U.S. Constitution; and (4) the BIA abused its discretion in denying her motion
to reopen based on China’s changed country conditions. For the reasons set forth
below, we deny the petition for review.
I.
Wang first cites to the non-refoulement1 provision, 8 U.S.C.
1
“Refoulement” is a French term for the expulsion or return of a refugee from one state
to another. Black’s Law Dictionary (8th ed. 2004). Relatedly, “nonrefoulement” is defined as a
refugee’s right not to be expelled from one state to another, especially to one where his or her life
or liberty would be threatened. Id.2
§ 1231(b)(3)(A),2 and references, inter alia, the Refugee Convention,3 Article 33
of the 1967 Protocol,4 in support of her claim that courts must look to Article 33 of
the Refugee Convention when interpreting and applying § 1231(b)(3)(A).
In deciding whether to uphold the BIA’s decision, we are limited to the
grounds on which the decision was relied. See NLRB v. U.S. Postal Serv., 526
F.3d 729, 732 n.2 (11th Cir. 2008); Kwon v. INS, 646 F.2d 909, 916 (5th Cir. May
4, 1981) (en banc). We ordinarily will not reach a question that the BIA declined
to address. See Gonzales v. Thomas, 547 U.S. 183, 186-87, 126 S.Ct. 1613, 1615,
164 L.Ed.2d 358 (2006); INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154
L.Ed.2d 272 (2002).
Because the BIA declined to address Wang’s claim that the procedural
limitations and the general non-refoulement provision of the INA should be
interpreted in light of several treaty provisions, her claim on this point is not
2
Section 1231(b)(3)(A) provides that “the Attorney General may not remove an alien to
a country if [he] decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A).
3
United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T.
6259, T.I.A.S. No. 6577.
4
Article 33 of the 1967 Protocol provides that “No Contracting State shall expel or return
(“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion. United Nations Protocol Relating to the Status of
Refugees, art. 33, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
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properly before us, and we do not reach it.
II.
Wang argues that the BIA erred in declining to exercise its discretion to
reopen her case sua sponte, pursuant to the general non-refoulement provision set
forth in 8 U.S.C. § 1231(b)(3)(A). She also challenges the constitutionality of the
provisions of the INA that prevent an alien subject to a final order of removal from
reopening her case to pursue a withholding-of-removal claim based on changed
circumstances other than those that arose in her country of nationality, but allow
an alien with a final removal order, who returns to the United States after removal
and seeks withholding of removal under the Convention Against Torture (“CAT”)
based on changed circumstances arising outside their country (“returnee aliens”),
to apply for the same relief. She contends that the general non-refoulement
provision, 8 U.S.C. § 1231(b)(3)(A), protects her individual rights to another
hearing prior to removal. She contrasts 8 U.S.C. § 1231(a)(5) and 8 C.F.R.
§ 1241.8, which apply to returnee aliens, with 8 C.F.R. § 1003.2, which applies to
aliens with final removal orders who have not yet left the United States, and
argues that the differential treatment accorded these two classes of aliens denies
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due process and equal protection in violation of the Fifth Amendment.5 According
to Wang, the rights to withholding of removal and to be free from persecution are
fundamental; thus, the differential treatment of returnee aliens, versus aliens
subject to deportation who have not yet left, is subject to strict scrutiny.
First, to the extent that Wang argues that the BIA erred in refusing to sua
sponte reopen her case, we lack jurisdiction to review its decision. See Lenis v.
U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir. 2008) (holding that we lack
jurisdiction to hear an appeal of the BIA’s denial of a motion to reopen based on
its sua sponte authority). However, we retain jurisdiction to consider
constitutional claims and questions of law under the INA raised in a properly-filed
petition for review. INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D); Ferguson v.
U.S. Att’y Gen., 563 F.3d 1254, 1259 (11th Cir. 2009).
Under the equal protection component of the Due Process Clause, the
government must treat similarly situated persons in a similar fashion. Leib v.
Hillsborough County Pub. Transp. Comm’n, 558 F.3d 1301, 1305-06 (11th Cir.
2009). When a law classifies a person in such a way that the person is treated
5
The basis for Wang’s differential treatment claim is that a returnee alien is
allowed to pursue a withholding of removal claim based on changed
circumstances other than those that arose in their country of nationality, whereas
aliens who have not yet left the United States are limited to claiming changed
circumstances in their country of nationality in order to reopen their case.
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differently, our level of scrutiny depends on the legislature’s basis for that
classification. Id. Because “Congress has plenary power to pass legislation
concerning the admission and exclusion of aliens,” federal classifications that
distinguish among groups of aliens are subject only to the non-demanding rational
basis review. Resendiz-Alcatrez v. U.S. Att’y Gen., 383 F.3d 1262, 1271 (11th Cir.
2004) (citations omitted). A “legislative classification subject to rational basis
review is accorded a strong presumption of validity.” Heller v. Doe, 509 U.S. 312,
319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993). This court’s review of
enactments subject to the rational basis standard must be “a paradigm of judicial
restraint.” FCC v. Beach Commc’ns, 508 U.S. 307, 314, 113 S.Ct. 2096, 2101,
124 L.Ed.2d 211 (1993). If any reasonably conceivable set of facts can provide a
rational basis for the challenged legislative classification, we are required to
uphold such legislative classifications, and the challenging party bears the burden
to demonstrate that no conceivable basis exists to support the classification.
Resendiz-Alcatrez, 383 F.3d at 1271 (quotation and citation omitted).
The non-refoulement provision, § 1231(b)(3)(A), provides that “the
Attorney General may not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social
6
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Pursuant to 8 C.F.R.
§ 1003.2(c)(2), an alien subject to deportation must file her motion to reopen
within 90 days of the final removal order. 8 C.F.R. § 1003.2(c)(2); 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i). However, there is no time limit on the filing of a motion
to reopen if it is based on changed country conditions arising in the country to
which removal has been ordered, and if the evidence in support of that motion is
material, and was not available or discoverable at the prior proceeding. 8 C.F.R.
§ 1003.2(c)(3)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii).
Pursuant to 8 C.F.R. § 1241.8(a), an alien who illegally reenters the U.S.
after having been removed, or having departed voluntarily, while under a removal
order, shall be removed through reinstatement of the prior order. 8 C.F.R. §
1241.8(a). However, if such an alien expresses a fear of returning to the country
of removal, the regulations provide that she “shall be immediately referred to an
asylum officer for an interview to determine whether [she] has a reasonable fear of
persecution or torture.” Id. at § 1241.8(e). Thus, the returnee alien need not show
changed country conditions in order to bring another claim of a reasonable fear of
persecution or torture. See id.
The Supreme Court has held that motions to reopen are disfavored in
removal proceedings because “[t]here is a strong public interest in bringing
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litigation to a close as promptly as is consistent with the interest in giving the
adversaries a fair opportunity to develop and present their respective cases.”
I.N.S. v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 913, 99 L.Ed.2d 90 (1988).
Because Wang has failed to negate “every conceivable basis which might
support” (1) allowing a returnee alien who expresses fear of returning to her home
country to have an interview with an asylum officer, and (2) barring an alien, who
is subject to a removal order and has not yet left the United States, from filing an
untimely motion to reopen, except upon a showing of changed country conditions,
we conclude that Wang’s constitutional challenges are without merit.
III.
Wang next argues that her application for withholding of removal and
supporting documentation provided in her motion to reopen established a prima
facie case for asylum, withholding of removal, and CAT relief, because (1) she
submitted a copy of 1996 family planning regulations from Liang Jiang County in
the Fujian Province that require, inter alia, sterilization of a husband or wife
within 40 days of the birth of their second child; (2) China’s family planning
policies are being enforced against Chinese nationals with children born in China
and those with children born abroad; and (3) she had submitted certificates of
sterilization of two of her friends who live in Changle City. Wang contends that
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to verify these supporting documents would require the assistance of Chinese
government officials, and to request such assistance would be an undue burden.
Wang also argues that the BIA erred in concluding that she had not shown that she
would be subjected to economic harm amounting to persecution. She next
contends that the State Department’s 2008 Country Report on China (“Country
Report”) shows that coercive pregnancy termination practices are used by the
Chinese government. Therefore, her fear is objectively reasonable that she, more
likely than not, would be sterilized upon being returned to China, and her motion
to reopen should have been granted because she made a prima facie showing for
withholding of removal. Wang also contends that the evidence presented
regarding China’s stricter enforcement of population planning rules established a
change in China’s country conditions, and thus, she argues, she is thereby exempt
from the 90-day filing deadline.
We lack jurisdiction to review claims that the petitioner failed to raise
before the BIA, regardless of whether the BIA chose to sua sponte address them.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006).
We review the BIA’s denial of a motion to reopen removal proceedings for abuse
of discretion. Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). “Our
review is limited to determining whether the BIA exercised its discretion in an
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arbitrary or capricious manner.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256
(11th Cir. 2009).
An alien may file one motion to reopen removal proceedings, and such
motion generally must be filed within 90 days of the date of the BIA’s final order.
INA § 240(c)(7)(A), (C)(i), 8 U.S.C. § 1229a(c)(7)(A), (C)(i). However, the 90-
day time limit does not apply if the motion to reopen is filed on the basis of
changed circumstances in the country of the movant’s nationality. 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(ii). To meet this exception, a
movant must show material evidence that was not available and could not have
been discovered or presented at the prior hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
C.F.R. § 1003.2(c)(3)(ii). Under 8 C.F.R. § 1287.6, an “official document,” such
as a certificate of sterilization surgery or abortion, is required to “be evidenced by
an official publication thereof, or by a copy attested by an officer so authorized,”
but unofficial documents, such as letters from family members or neighbors need
not be so evidenced. 8 C.F.R. § 1287.6. “An alien who attempts to show that the
evidence is material bears a heavy burden and must present evidence that
demonstrates that, if the proceedings were opened, the new evidence would likely
change the result in the case.” Jiang, 568 F.3d 1252, 1256-57.
In Li, we held that an alien’s extensive, “undisputed evidence of a recent
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campaign in her home village in China of forced sterilization warranted reopening
based on changed country conditions.” Li, 488 F.3d at 1375. We noted that the
BIA in Li’s case did not find either Li’s supporting affidavit nor her mother’s
affidavit incredible, and that the background materials submitted supported Li’s
fear that Fujian Province officials had “incentives and discretion” to sterilize
women with more than one child. Id. We determined that “Li’s evidence of a
recent campaign of forced sterilization in her home village, evidence consistent
with the conclusion of recent government reports, clearly satisfied the criteria for a
motion to reopen her removal proceedings.” Id.In Jiang, we addressed the BIA’s denial of Jiang’s motion to reopen based
on changed country conditions in China, filed after she had two children in the
United States, and in which she claimed that she feared persecution if returned to
China because her violation of China’s one-child policy would lead her to be
forcibly sterilized. Jiang, 568 F.3d at 1254. We noted that the case was
“startlingly like the case of Li” with regard to the evidential foundation presented
in each case. Id. at 1257-58.
Jiang argued that “recent increased enforcement of the one-child policy in
the Fujian Province, and more particularly, in her hometown, reasonably led her to
fear that she too would face persecution in the form of forced sterilization if she
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were removed to China.” Id. at 1258. We held that:
[t]he BIA’s decision again overlooked, or, inexplicably
discounted, not only the two affidavits Jiang provided in
support of her petition, detailing forced sterilizations in
Jiang’s own hometown—neither of which the BIA or IJ
found incredible—but also the 2004 and 2005 Country
Reports, which unambiguously corroborated incidents of
coerced sterilization, and explicitly recognized that the
Fujian Province is known for using ‘unspecified
remedial measures’ to deal with those in violation of
family planning polices.
Id. Accordingly, we held, “Jiang’s evidence established a prima facie case for
asylum and withholding of removal, especially in light of Li,” and directed the
BIA to reopen proceedings to consider the merits of her claims for asylum and
withholding of removal. Id.Because Wang’s evidence failed to establish changed conditions with
respect to China’s enforcement of its one-child policy, we conclude that the BIA
correctly denied Wang’s motion to reopen.
PETITION DENIED.
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