Xiao Xia Chen v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-3867
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XIAO XIA CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A78-473-188)
Immigration Judge: Rosalind K. Malloy
____________
Submitted Under Third Circuit LAR 34.1(a)
December 1, 2009
Before: FISHER, HARDIMAN, and STAPLETON, Circuit Judges.
(Filed:December 7, 2009)
____________
OPINION OF THE COURT
_________
HARDIMAN, Circuit Judge.

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Xiao Xia Chen seeks review of the order of the Board of Immigration Appeals
(BIA) denying her motion to reopen her deportation proceeding. We will deny Chen’s
petition for review.
I.
A.
Because we write for the parties, we recount only the facts and procedural history
necessary to our decision. Chen arrived in the United States on December 7, 2000. She
subsequently applied for asylum, withholding of removal, and relief under the Convention
Against Torture, claiming that she would be persecuted in China because she refused to
marry the son of the village chief. On December 12, 2002, the Immigration Judge denied
Chen’s application and entered an order of removal and the Board of Immigration
Appeals affirmed. Nevertheless, Chen remained in the United States, married, and gave
birth to a son on April 4, 2006, and a daughter on June 20, 2007.
On May 16, 2007, Chen filed a motion to reopen the removal proceedings, arguing
that conditions had changed in China. Specifically, Chen asserted that Fujian province
has increased its enforcement of China’s Population and Family Planning Laws such that
the birth of her two children placed her at risk of being subjected to forced sterilization or

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Chen submitted: her own affidavit; an amended Form I-589 in support of the1
asylum application; the birth certificates of Chen, her husband, and her son; a marriage
certificate; a letter from her doctor verifying her second pregnancy; an affidavit from her
father in China; a document entitled “Response of the Administrative Office of the
National Population and Family Planning Committee to the Fujian Province Population
And Family Planning Committee’s inquiry on the legal applicability and use of [Family
Planning] Laws toward the reproductive behavior of Chinese Citizens residing in other
countries,” dated 2006; the Changle City Family Q&A Handbook, dated July 1999; the
Testimony of John Aird on China’s New Family Planning Law, dated September 23,
2002; a Consular Information Sheet, dated May 29, 2003; a Letter in Response to the
Issue of Identification of Nationality from the Department of Public Security of the
People’s Republic of China, dated October 22, 1997; the 2005 and 2006 Annual Reports
of the Congressional-Executive Commission on China; the Testimony of Harry Wu
before Congress on December 14, 2004; an article entitled “One Child Over Birth, the
Whole Family Detained” from World Journal, dated March 11, 2007; an article entitled
“China Shamed by Forced Abortions” from Times Online, dated 2005; and an article
entitled “Who Controls the Family” from Washingtonpost.com, dated 2005.
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abortion upon her return to China. In support of her motion to reopen, Chen submitted
several documents we list in the margin.1
The BIA denied the motion to reopen on August 31, 2007. In reviewing the
materials Chen submitted, the BIA observed that many of the documents provided only
general background regarding China’s human rights record and its enforcement of
population control policies. The BIA also noted that a number of the documents in the
record pre-dated 2005, the year in which Chen claimed that Fujian began escalating its
enforcement of the Family Planning Law. Furthermore, the BIA held that the affidavits
submitted by Chen and her father were insufficient to create a reasonable likelihood that
Chen could objectively prove the basis of her fear of persecution upon returning to China.
Although the affidavits recount two incidents of forced sterilization and abortion against

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On appeal, Chen has not assigned error to the BIA’s disregard for the 2005 and2
2006 State Department Reports or the two documents discounted as lacking authenticity.
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women in Fujian province who had at least one child, there was no indication that the two
women were similarly situated to Chen, i.e, repatriated Chinese nationals who bore
multiple children in the United States.
The BIA also disregarded some of Chen’s supporting materials. First, the BIA
noted that although Chen referenced the 2005 and 2006 State Department Reports on
China by citing their internet domain, she never made them part of the record, so the BIA
did not rely upon them. Second, the BIA questioned the authenticity of two of the
documents Chen proffered in support of her claim that U.S.-born children are counted
against returning Chinese nationals for purposes of the Family Planning Laws. The BIA
observed that the Chinese version of the Response of the Administrative Office—
purportedly dated 2006—contained multiple date stamps on the bottom of the document
which pre-dated 2006. Also, some of the answers in the Changle City Family Q&A
Handbook had inconsistent font and typeface, calling the validity of that document into
question. Therefore, the BIA refused to rely on these two documents.2
Based on its review of the record, the BIA concluded that Chen failed to overcome
the heavy burden of proof required to grant an untimely motion to reopen, and denied the
motion as time-barred. The BIA also concluded that the evidence was insufficient to
establish a prima facie case of eligibility for asylum because it did not establish a

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The BIA had jurisdiction over Chen’s motion to reopen under 8 C.F.R. § 1003.2,3
and we have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252.
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reasonable likelihood that Chen would be able to provide proof in a reopened proceeding
of the objective basis for her fear of persecution upon returning to China. Chen filed a
timely petition for review of the BIA’s decision.3
II.
Motions to reopen are disfavored as a matter of law and an alien who seeks to
reopen bears a “heavy burden.” INS v. Abudu, 485 U.S. 94, 110 (1988); see also INS v.
Doherty, 502 U.S. 314, 323 (1992). We review the BIA’s denial of a motion to reopen
for abuse of discretion and “will not disturb the BIA’s decisions unless they are found to
be arbitrary, irrational, or contrary to law.” Zheng v. Attorney General, 549 F.3d 260,
264-65 (3d Cir. 2008) (internal citation omitted). Applying this “deferential standard of
review, we uphold the BIA’s factual determinations if they are ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole.’” Liu v.
Attorney General, 555 F.3d 145, 148 (3d Cir. 2009) (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)).
A.
An alien may file only one motion to reopen removal proceedings, “and that
motion must be filed no later than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2).

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The 90-day limitation does not apply to a motion to reopen which seeks asylum or
withholding of deportation “based on changed circumstances arising in the country of
nationality . . . if such evidence is material and was not available and could not have been
discovered or presented at the previous hearing.” 8 C.F.R. § 1003(c)(3)(ii). The Supreme
Court has set forth three bases on which the BIA can deny a motion to reopen: (1) the
alien failed to establish a prima facie case for the relief sought; (2) the alien failed to
introduce previously unavailable, material evidence that justifies reopening under the
regulation; or (3) in cases where relief is discretionary, the alien would not be entitled to
the discretionary relief even if a prima facie case were shown. Sevoian v. Ashcroft, 290
F.3d 166, 169-70 (3d Cir. 2002) (citing Abudu, 485 U.S. at 105).
In addition to satisfying the 90-day filing requirement, or the “changed
circumstances” exception, a motion to reopen must establish prima facie eligibility for
asylum. Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004) (citation omitted). To qualify
for asylum, an applicant must establish that she has a well-founded fear of persecution if
removed to her home country. 8 U.S.C. §§ 1101(a)(42), 1158(b). To establish a well-
founded fear, the applicant must show: (1) a subjective fear of persecution, (2) that is
objectively reasonable. Guo, 386 F.3d at 564. “An applicant bears the burden of proving
eligibility for asylum based on specific facts and credible testimony.” Zheng, 549 F.3d at
266 (citations omitted).

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During the pendency of Chen’s petition for review, we decided Zheng v. Attorney4
General, 549 F.3d 260 (3d Cir. 2008), and Liu v. Attorney General, 555 F.3d 145 (3d Cir.
2009), concerning the level of consideration the BIA must afford to materials submitted
by applicants in support of a motion to reopen. The parties submitted helpful
supplemental briefing on the applicability of these decisions to Chen’s case.
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B.
As a preliminary matter, we address the adequacy of the BIA’s consideration of the
documents submitted by Chen under our recent decisions in Zheng and Liu. In Zheng,4
we explained that, when considering a motion to reopen, the BIA has an obligation to
“actually consider the evidence and argument that a party presents,” and “to explicitly
consider any country conditions evidence submitted by an applicant that materially bears
on his claim,” 549 F.3d at 266, 268 (citations omitted). Although the BIA may consider
evidence in a summary fashion, and need not “parse or refute on the record each
individual . . . piece of evidence offered by the petitioner,” the BIA should demonstrate
that it has considered the petitioner’s evidence and “should provide us with more than
cursory, summary or conclusory statements, so that we are able to discern its reasons for
declining to afford relief to a petitioner.” Id. at 268 (quoting Wang v. BIA, 437 F.3d 270,
275 (2d Cir. 2006)). We then vacated and remanded the BIA’s order denying Zheng’s
motion to reopen because the BIA had “fail[ed] to discuss most of the evidentiary record
in Zheng’s case, as well as the conclusions that the Court of Appeals for the Eleventh
Circuit reached in Li [488 F.3d 1371 (11th Cir. 2007)] concerning at least some of the
documents” presented by Zheng. Id. at 269.

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In contrast to Zheng, in Liu we affirmed the BIA’s denial of a motion to reopen,
finding that the BIA adequately addressed Liu’s evidence and arguments for us to review
the substance of the BIA’s decision, and that the BIA’s denial was not an abuse of
discretion. Liu, 555 F.3d at 149-50. The BIA’s decision in the instant case falls
somewhere between the lack of consideration of the evidence in Zheng, and the thorough
review conducted in Liu. Not surprisingly, Chen argues that the BIA’s decision is closer
to Zheng, while the Government contends that the case is analogous to Liu.
Here, unlike in Zheng, the BIA took note of all the documents submitted by Chen
in support of her motion to reopen and provided its assessment of those documents.
Though neither the BIA’s consideration of Chen’s evidence nor its analysis of the
applicable law was as thorough as the opinion in Liu, it provides sufficient analysis to
enable us to discern its basis for rejecting Chen’s evidence, and gives us confidence that
the BIA reviewed and considered all of Chen’s evidence. For the reasons that follow, the
petition for review must be denied.
C.
Chen’s motion to reopen was filed almost three years after the BIA entered its final
decision in her removal proceeding, well after the 90-day deadline. Consequently, Chen
was required to show changed country conditions based on material and previously
unavailable evidence to overcome the untimeliness of her motion. Chen argued that since
the time of her prior hearing, the Fujian province government has increased the use of

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In fact, the documents Chen submitted tended to show that some forced5
sterilizations and abortions occurred in prior years. For example, the 2002 Aird
Testimony reports that there were “spectacular instances of coercion” since the late
1990s, that an investigative team from the U.S. State Department confirmed the
persistence of coercive measures in China in 2002, and that there was a long-running
practice of requiring late-term abortions in cases of unauthorized, but previously
undetected, pregnancies.
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forced abortions and sterilizations. However, a review of the record reveals that the
evidence submitted by Chen does not support a finding of changed conditions.
The documents Chen submitted include reports of coerced sterilization and
abortion in various parts of China, but they do not show that these incidents represented a
change from prior practices. For example, the 2005 Annual Report of the Congressional-
Executive Commission on China states: “[t]he Chinese government continues its
population control policy . . . . Coercive fines are the main enforcement mechanism,
although reports of local authorities using physical coercion to ensure compliance
continue, even though this practice violates Chinese law.” (emphasis added). Likewise,
the 2006 Annual Report of the Congressional-Executive Commission on China states:
Some local officials charged with implementing the national population
planning policy violate Chinese law by physically coercing abortions and
sterilizations. Although physical coercion violates [the planning law] local
officials continue to use physical coercion or the threat of physical coercion,
to enforce compliance with population planning laws and regulations. . . .
In 2006, officials in . . . Fujian province forcibly sterilized women.
Chen has not submitted country reports—or any other evidence—to show that the
practices reported in 2005 and 2006 represented a change from prior years. Although5

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Chen’s affidavit states that she “was told that since 2005, the government has increased
the use of forced abortions and sterilizations,” it was not an abuse of discretion for the
BIA to conclude that this isolated hearsay statement was insufficient to meet her burden.
Given the lack of evidence of changed conditions in China, the BIA did not abuse its
discretion in concluding that Chen’s motion to reopen was time-barred.
D.
Our review of the record also supports the BIA’s conclusion that Chen failed to
establish a basis for her fear of persecution as a returning national with U.S.-born
children. In its opinion, the BIA took note of its prior decision in Matter of C-C-, 23 I &
N Dec. 899 (BIA 2006), in which it discussed the variable application of the Family
Planning Law to Chinese nationals with children born overseas in contrast to those born
in China; namely, that there were no reports of forced sterilization or abortion against
“returnees from the United States.” Id. at 903. The BIA did not err when it concluded
that Chen’s documents failed to overcome this finding.
For the foregoing reasons, we will deny Chen’s petition for review.

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