Jing Liu v. Attorney General United States ( 2013 )

  •                                                              NOT PRECEDENTIAL
                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                         No. 13-1946
                                       JING CHUN LIU,
                          On Petition for Review of an Order of the
                               Board of Immigration Appeals
                                (Agency No. A078-435-237)
                       Immigration Judge: Honorable Donald V. Ferlise
                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     September 3, 2013
                   Before: AMBRO, JORDAN and BARRY, Circuit Judges
                              (Opinion filed: September 5, 2013)
          Petitioner Jin Chun Liu seeks review of a final order of the Board of Immigration
    Appeals (“BIA”). For the following reasons, we will deny the petition for review.
           Petitioner is a citizen of China. In 2001, removal proceedings were initiated
    against him pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien
    present in the United States without being admitted or paroled. Petitioner conceded
    removability but applied for asylum, withholding of removal, and protection under the
    Convention Against Torture, based on his opposition to China’s population control
    policies. In 2003, the Immigration Judge (“IJ”) denied relief, finding no credible
    evidence of past persecution or well-founded fear of future persecution, and ordered
    Petitioner removed to China. In 2005, the BIA upheld the IJ’s decision. In 2012,
    Petitioner filed a motion to reopen in the BIA, arguing that he had recently begun
    practicing Falun Gong and feared persecution on that basis if returned to China. On
    March 22, 2013, the BIA denied Petitioner’s motion. On April 5, 2013, Petitioner filed a
    counseled petition for review and a motion to stay removal in this Court. We denied his
    stay motion on April 21, 2013.
           We begin by making clear the limited scope of this appeal. We have jurisdiction
    under 8 U.S.C. § 1252(a) only with respect to the BIA’s March 22, 2013 order denying
    Petitioner’s motion to reopen. The petition for review was not timely filed within 30
    days of the BIA’s 2005 order upholding the IJ’s removal order. See 8 U.S.C.
    § 1252(b)(1); Stone v. INS, 
    514 U.S. 386
    , 405 (1995). The 30-day limitation period is
    mandatory and jurisdictional. See Vakker v. Att’y Gen, 
    519 F.3d 143
    , 146 (3d Cir.
    2008); McAllister v. Att’y Gen, 
    444 F.3d 178
    , 185 (3d Cir. 2006).
           We review the BIA’s denial of a motion to reopen using the “highly deferential”
    abuse of discretion standard. Guo v. Ashcroft, 
    386 F.3d 556
    , 562 (3d Cir. 2004). A
    motion to reopen must be filed in the BIA within 90 days of the date of entry of the final
    order of removal. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). There is no time
    limit on filing a motion to reopen in the BIA if the basis of the motion is to apply for
    asylum and the motion is based on changed conditions in the country to which removal
    has been ordered, if such evidence is material and was not available or discoverable at the
    previous proceeding. See INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii). The
    evidence presented must be genuine, authentic, and objectively reasonable. See In re S-
    Y-G, 24 I.&N. Dec. 247, 251 (BIA 2007).
           We agree with the BIA that Petitioner’s motion to reopen was untimely. The
    motion was filed over 7 years after the BIA’s May 9, 2005 final order of removal. His
    motion was subject to the 90-day limitations period because it was not based on changed
    conditions in China supported by material evidence that was not available or discoverable
    at the time of the previous proceeding. Instead, Petitioner’s motion sought reopening
    because he began the practice of Falun Gong in 2011 and feared persecution on that basis
    if returned to China.1 See Liu v. Att’y Gen, 
    555 F.3d 145
     (3d Cir. 2009). However,
      In support of his motion, Petitioner submitted a notice addressed to his parents in China
    by their local village branch of the Communist Party. The notice, dated July 2012, stated
    that reports had been received of Petitioner’s participation in Falun Gong and demanded
    he cease his activities and return to China for “severe punishment.” Petitioner also
    submitted a letter purportedly from his father stating that Chinese authorities had rushed
    Petitioner’s motion to reopen fails to demonstrate that the treatment of Falun Gong
    practitioners in China has materially changed since the time of his removal proceedings.
    To the contrary, Petitioner acknowledged that “[t]he Chinese government banned Falun
    Gong in China for over 10 years now.” We further note that the BIA found that the
    Communist Party notice, which was “unsigned and not authenticated in any manner,”
    was insufficiently reliable evidence. It also concluded that the letter from Petitioner’s
    father was unauthenticated, speculative, and written by a third party, and therefore was
    similarly unreliable. We agree that Petitioner did not establish through reliable evidence
    that the Chinese authorities were aware of his Falun Gong activities or that he would face
    persecution on that basis if returned to China. Therefore, we cannot conclude that the
    BIA abused its discretion in denying the motion.2
    into his home to serve the notice and demand Petitioner’s return to China for punishment.
      Petitioner’s motion to reopen also asked the BIA to invoke its sua sponte authority
    pursuant to 8 C.F.R. § 1003.2(a). In denying reopening, the BIA refused to exercise that
    authority. We lack jurisdiction to review the BIA’s refusal to exercise its sua sponte
    authority. Calle-Vujiles v. Ashcroft, 
    320 F.3d 472
    , 474 (3d Cir. 2003).