Chen v. Atty Gen USA ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-5-2009
Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3993
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3993
___________
BING JIAN CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A73 486 186)
Immigration Judge Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 15, 2009
Before: MCKEE, NYGAARD AND ROTH, Circuit Judges
(Opinion filed June 5, 2009 )
___________
OPINION
___________
PER CURIAM
Bing Jian Chen petitions for review of a Board of Immigration Appeals (“BIA”)
decision denying his motion to reopen his immigration proceedings. We will deny the
petition for review.
Chen is a native and citizen of China who came to the United States in 1995
without a valid immigrant visa. In 1996, an Immigration Judge denied Chen’s
applications for asylum and withholding of deportation, in which he claimed persecution
based on his religion, and ordered that Chen be excluded and deported from the United
States. The BIA dismissed Chen’s appeal. In 2000, the proceedings were reopened so
that Chen could pursue relief under the Convention Against Torture (“CAT”). The
Immigration Judge denied CAT relief, and the BIA affirmed the IJ’s decision in 2002. In
2005, Chen sought to reopen the proceedings again, claiming that he would be subjected
to coercive birth control measures if he returned to China as a result of the birth of his
first child. The BIA found the motion untimely and denied reopening.
In 2006, Chen filed another motion to reopen asserting that he and his wife were
expecting their second child, and that he feared that he would be forcibly sterilized if
removed to China. Chen argued that his motion was not barred by numerical or time
limitations applicable to motions to reopen due to changed conditions in China. Chen
stated that instances of forced sterilizations had increased in his home province, Fujian
Province. In support of his motion, Chen submitted an affidavit stating that two of his
former neighbors in China were forced to undergo sterilization in 2005 after the birth of a
second child. Chen also submitted a letter from the Hunan Village Committee stating that
he would be required to report to the family planning office within one week of his return
2
to China and undergo sterilization at an arranged date. Chen also submitted the 2005 U.S.
Department of State Country Report on Human Rights Practices for China, which he
argued reflected an increased use of forced sterilizations in China.1 Chen further argued
that, in light of the increase in the use of forced sterilizations, he is prima facie eligible
for asylum as the expected father of two children. Finally, Chen asserted that, under the
immigration regulations, he may file a successive asylum application without seeking to
reopen his proceedings.
The BIA determined that the motion to reopen was numerically-barred and time-
barred under 8 C.F.R. § 1003.2(c)(2). The BIA concluded that Chen had not overcome
these bars by showing changed country conditions in China as permitted under 8 C.F.R.
§ 1003.2(c)(3). The BIA explained that the birth of a United States citizen child and a
pregnancy constituted a change in personal circumstances, not a change in circumstances
arising in the country of nationality which would create an exception to the limitations for
filing a motion to reopen.
The BIA further concluded that, even if it accepted Chen’s assertion that
circumstances had changed for him in China, the new evidence did not alter the outcome
of his case. The BIA explained that the objective evidence Chen had submitted related to
1
Chen also submitted other background information, including the congressional
testimony of Dr. John Aird and Harry Wu, the 2004 United States Department of State
Country Report, the Population and Family Planning Regulation of Fujian Province, a
2003 Consular Information Sheet, a 2005 Congressional Report, and two newspaper
articles regarding forced abortions and sterilizations in China.
3
the treatment of Chinese nationals residing in China who violate China’s one-child policy
rather than the treatment of Chinese nationals returning from abroad with United States
citizen children. The BIA also explained that, as it had held in Matter of C-C, 23 I. & N.
Dec. 899 (BIA 2006), the 2005 United States Department of State Human Rights Report
was insufficient to show prima facie eligibility for relief because it did not indicate that
Chinese nationals returning to China with foreign-born children have been subjected to
forced sterilization in Fujian Province.
The BIA also concluded that the letter from the Hunan Village Committee did not
establish prima face eligibility for relief. The BIA recognized that the letter stated that
Chen “must report to . . . undergo a sterilization operation,” but stated that the letter
provided no indication as to what would happen to Chen if he declined to report. Based
on these conclusions, the BIA found that the evidence did not establish changed
circumstances in China sufficient to support a reopening of the proceedings. Finally, the
BIA rejected Chen’s argument that he may file a successive asylum application, which is
not subject to the changed country conditions requirement of an untimely motion to
reopen. Chen filed a petition for review.2
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We
review the denial of a motion to reopen for an abuse of discretion. Liu v. Attorney
2
The petition for review was stayed pending the Court’s decisions in several similar
cases. Those cases have been decided, and the parties have filed supplemental briefs
addressing those decisions.
4
General, 555 F.3d 145, 148 (3d Cir. 2009). In addition, we uphold the BIA’s factual
determinations if they are supported by substantial evidence. Id.As an initial matter, we note that Chen’s argument that he may file a successive
asylum application without regard to the limits applicable to a motion to reopen is
foreclosed by our decision in Liu, in which we held that, after completion of removal
proceedings, an alien must file an asylum application in conjunction with a motion to
reopen and must meet the time and numerical limitations on motions to reopen. 555 F.3d
at 152. We also reject Chen’s argument that his case is similar to Zheng v. Attorney
General, 549 F.3d 260, 269-71 (3d Cir. 2008), where we vacated the denial of motions to
reopen based on the BIA’s failure to discuss the evidentiary record. Here, the BIA
referred in its decision to all of the background information provided by Chen, concluding
that this evidence was inapplicable because it did not address the treatment of Chinese
nationals returning from abroad with United States children. The BIA also specifically
discussed the 2005 United States Department of State Country Report and the letter from
the Hunan Village Committee.
Chen further argues that the BIA mischaracterized the grounds for his motion to
reopen by stating that he had alleged a change in personal circumstances based on the
birth of his child and his wife’s pregnancy, not a change in country conditions in China
which would create an exception to the time and numerical limitations for filing a motion
to reopen. We disagree. The BIA recognized the change in Chen’s personal
5
circumstances, but also considered the evidence and found that Chen had not established
changed circumstances in China. See also Liu, 555 F.3d at 148 (rejecting argument that
BIA mischaracterized the grounds for the motion to reopen).
Chen also argues that he established changed circumstances in China and that he is
prima facie eligible for asylum. Substantial evidence, however, supports the BIA’s
conclusions. The BIA correctly stated that the background evidence submitted by Chen,
including the 2005 U.S. Department of State Country Report, does not address the facts
of his case – the treatment of Chinese nationals returning from abroad to Fujian Province
with United States citizen children. Although the letter from the Hunan Village
Committee states that Chen will be required to undergo sterilization,3 the BIA recognized
that the letter does not state that Chen will be forcibly sterilized if he failed to report to
the family planning office. The Government correctly notes that the Fujian Province
regulations reflect that monetary rewards and fines are used to achieve compliance with
the family planning policy. In addition, the 2005 Congressional Report states that fines
are the main enforcement mechanism of the population control policy, that physical
coercion is illegal, but that there are reports of physical coercion. Similarly, the 2005
3
The letter states that, unless Chen had become a United States citizen or permanent
resident, or had received a Master or Ph.D. degree in the United States, he must report to
a family planning office within a week after arriving in China and undergo a sterilization
operation on an arranged date. The letter notes that the village strictly enforces The
Population and Family Planning Ordinance in Fujian Province, which dictates that those
with two children “will be designated as a target for sterilization, and must undergo the
necessary procedures.” A.R. at 61.
6
U.S. Department of State Country Report notes that physical coercion is prohibited, but
that reports of physical coercion continued.4 Although Chen stated in his affidavit that he
was aware of two incidents of forced sterilization in his village, the evidence does not
compel the conclusion that Chen established changed circumstances in China or that he is
prima facie eligible for relief from removal.
Accordingly, we will deny the petition for review.
4
The 2005 U.S. Department of State Country Report states that 7000 people were
forcibly sterilized in Linyi, Shandong Province, but the Report does not address Fujian
Province.