Xi Que Li v. ATTORNEY GENERAL OF THE UNITED STATES Petition for Review of an Order of the United…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4037
___________
XI QUE LI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency No. A76-506-646)
Immigration Judge: Honorable Donald V. Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
JULY 1, 2009
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: July 6, 2009)
___________
OPINION OF THE COURT
___________
PER CURIAM
Petitioner, Xi Que Li, a native and citizen of the People’s Republic of China,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her

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While it has no bearing on Li’s motion to reopen, we note that the Immigration Judge1
exhibited hostility and impatience toward Li during her removal hearing. For example,
when Li stated that she did not understand the basis for his ruling, Judge Ferlise stated:
“All right. Let me . . . make it as simple as I can. You’re a liar. Is that clear? You lied
to me. The whole application is . . . a lie. Is that clear? Is that clear enough?” (Joint
Appendix at 315.)
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motion to reopen. For the following reasons, we will grant her petition.
Li entered the United States in August 2000 and was issued a notice to appear
charging her as being unlawfully present pursuant to 8 U.S.C. § 1182(a)(6)(A)(I). In
response, she applied for asylum, withholding of removal, and relief under the
Convention Against Torture. Li’s application was based on her claim that Chinese
authorities forced her to undergo an abortion in August 1999.
In denying Li’s claims on May 21, 2004, the Immigration Judge (“IJ”) concluded
that Li was not credible and had not submitted adequate evidence to support her claims.1
On September 30, 2005, the BIA affirmed the IJ’s decision. Li did not file a petition for
review. On April 2, 2007, Li filed a motion to reopen the BIA’s decision and also sought
to file a successive asylum application. In the motion, Li claimed changed country
circumstances based on Chinese authorities’ stricter enforcement of the one-child policy
in her home province of Fujian. Li alleged that under the one-child policy she would be
subject to coercive birth control measures because of her two United States born children.
The BIA denied the motion on September 20, 2007, and Li, through counsel, has filed a
petition for review.

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Li spends much of her appellate brief arguing that she is entitled to file a successive2
asylum application regardless of whether she could satisfy these requirements. This
argument, however, is foreclosed by our recent opinion in Liu v. Att’y Gen., 555 F.3d
145, 150-52 (3d Cir. 2009).
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We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to
reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).
Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational,
or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
Motions to reopen are generally required to be filed with the BIA “no later than 90
days after the date on which the final administrative decision was rendered.” 8 C.F.R. §
1003.2(c)(2). The deadline does not apply to motions that rely on evidence of “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
proceeding.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA concluded that Li’s motion to2
reopen demonstrated only changes to her personal situation—i.e., the birth of her two
children. Citing to Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), the BIA concluded
that Li had failed to demonstrate that she would be persecuted due to the birth of her two
children, who were born in the United States. Accordingly, the BIA denied the motion to
reopen for Li’s failure to meet her burden of proof.
The BIA’s characterization of the motion to reopen as being based solely on
changed personal circumstances is inaccurate. Although changes in her personal

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circumstances do not constitute changed country conditions, they are relevant to her claim
that she would be persecuted under changing Chinese family planning laws. Indeed, Li’s
brief in support of her motion to reopen focuses, in part, on “the dramatic increase in the
use of forced abortions and sterilizations to implement the one child rule is change arising
in China . . . .” (Joint Appendix at 25.) Therefore, we will focus on the BIA’s
determination that Li failed to show changed country conditions in China.
Recently, we decided two cases presenting issues similar to the case at hand,
Zheng v. Att’y Gen, 549 F.3d 260 (3d Cir. 2008), and Liu v. Att’y Gen., 555 F.3d 145 (3d
Cir. 2009). In Zheng, we granted two petitions for review where the petitioners, like Li,
had been ordered removed but later had more than one child in the United States and
sought reopening on the basis of heightened enforcement of family planning policies in
Fujian province. Zheng, 549 F.3d at 262. We did so while noting the BIA has a “duty to
explicitly consider any country conditions evidence submitted by an applicant that
materially bears on [her] claim and a similar, if not greater, duty arises in the context of
motion to reopen based on changed country conditions.” Id. at 268 (citations and
quotations omitted). In that regard, we granted the petitions based on the BIA’s failure to
adequately consider the evidence Zheng submitted in support of his motion to reopen. Id.
at 269. Specifically, we found that “the BIA did little more than quote passages from its
earlier decision in J-W-S- without identifying-let alone discussing-the various statements
contained in the record before it that Zheng submitted in support of his motion to reopen.”

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Id. at 268.
In contrast, in Liu, which also involved a petitioner who alleged increased
enforcement of the one-child policy in Fujian province, we found that the record
supported “the BIA’s conclusions that Liu did not demonstrate changed circumstances in
China and would not have a reasonable fear of persecution if she returned to China.” Liu,
555 F.3d at 148-49. We quoted from the BIA opinion at length which discussed and
analyzed evidence Liu submitted of changed country conditions and determined, in light
of the evidence, that Liu failed to show a material change in the coercive population
control policy in China. Id.
Here, the BIA’s opinion is much closer to the type of analysis we deemed
inadequate in Zheng. The BIA’s entire analysis of the evidence Li submitted amounted to
a discussion of Matter of J-W-S- and a conclusory statement that, as in J-W-S-, Li’s
evidence was insufficient to meet her burden of proof. The BIA did not mention-let alone
discuss-Li’s affidavit and her mother’s affidavit, both of which recount recent instances
of forced sterilization in her home village. Moreover, Li’s mother’s affidavit, a 2007
letter from the Villager Committee, and a document from the National Family Planning
Committee, all state that children born abroad to Chinese nationals are counted for family
planning purposes, and that Li (or someone in her situation) would be sterilized upon her
return. The BIA, however, did not discuss why these documents were insufficient to
show changed country conditions.

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We note, as we did in Zheng, that ultimately, the BIA may have come to the
correct conclusion regarding Li’s motion: “the procedural shortcomings that we find
existed in the BIA proceedings . . . do not imply that the BIA reached an incorrect result
predicated on the records before it[.]” Zheng, 549 F.3d at 272. However, given the BIA’s
lack of analysis and cursory discussion of the evidence Li submitted, we will grant the
petition for review, vacate the BIA’s order, and remand for further proceedings consistent
with this opinion and our decision in Zheng.

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