Mei Yang v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1375
___________
MEI YANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78-296-507
(U.S. Immigration Judge: Honorable Donald Vincent Ferlise)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 19, 2009
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
Filed: August 28, 2009
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OPINION OF THE COURT
___________
PER CURIAM.
Petitioner Mei Yang seeks review of a final order of removal of the Board of
Immigration Appeals (“BIA”) denying her motion to reopen her deportation proceedings.
We will deny the petition.

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The BIA affirmed the IJ’s decision finding Yang’s claim lacked credibility and, even1
if true, failed to establish eligibility for relief. It reversed the IJ’s determination that Yang
filed a frivolous asylum application. (A.R. 142-43.)
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I.
Mei Yang is a 28-year-old native and citizen of China, who entered the United
States without being admitted or paroled in January 2001. In February 2001, the
Immigration and Naturalization Service filed a Notice to Appear and placed Yang in
removal proceedings. In turn, Yang filed an application for asylum based upon her
political opposition to the Chinese government’s property expropriation policy.
On March 12, 2002, the IJ, after reviewing Yang’s hearing testimony and the
evidence of record, denied Yang’s asylum application. The IJ found numerous
discrepancies and omissions between Yang’s asylum application, written documents, and
her testimony and ultimately concluded that she was not credible. Yang appealed the IJ’s
decision and, on January 29, 2003, the BIA affirmed, in part, the IJ’s decision. Yang did1
not file a petition for review of the BIA’s decision with this Court.
More than four years later, on June 4, 2007, Yang filed with the BIA a motion to
reopen and to file a successive asylum application. She asserted that the motion was
exempt from the ninety-day time restriction governing motions to reopen because her
motion was based on changed country conditions in China and based on facts not
previously available to her. Specifically, Yang contended that if she returned to China,
she would likely be persecuted as a violator of the one-child rule of the family planning

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law because enforcement of the law was becoming more frequent in Fujian Province,
Yang’s home province. Since her removal hearing in March 2002, Yang had given birth
to two children and was pregnant with her third child at the time she filed her motion to
reopen.
In support of her motion, Yang relied upon the United States Court of Appeals for
the Second Circuit’s decision in Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006).
Specifically, Yang argued that “the Second Circuit has taken notice of evidence which
confirms that Chinese nationals who have children abroad are nonetheless subject to
ordinary enforcement of the one-child rule, including sterilization.” (A.R. 28.)
In further support of her motion, Yang included the following documents: a 2003
Consular Information Sheet, 2005 and 2006 Annual Reports of the Congressional –
Executive Commission on China; the congressional testimony of Dr. John Aird and Harry
Wu; Changle City Family Planning Q & A Handbook; 2006 Policy Statement from the
Administrative Office of the National Population and Family Planning Committee; a 2007
World Journal excerpt on family planning practices in Fujian Province; a 1997 letter from
the Department of Public Security of The People's Republic of China; newspaper articles
on family planning practices in the regions of Linyi and Guangxi.
On January 11, 2008, the BIA ruled that Yang’s motion to reopen was time-barred
under 8 C.F.R. § 1003.2(c)(2). The BIA concluded that Yang had not overcome this bar
by showing changed country conditions in China as permitted under

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8 C.F.R. § 1003.2(c)(3)(ii).
II.
Although we have jurisdiction to review the BIA’s order denying Yang’s motion
to reopen, see, e.g., Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003), the scope
of our review is quite limited. INS v. Doherty, 502 U.S. 314, 323 (1992). Under the
regulations, the BIA “has discretion to deny a motion to reopen even if the party moving
has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court
has stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94,
110 (1988). Accordingly, the Court reviews the BIA’s denial of a motion to reopen for
abuse of discretion with “broad deference” to its decision. Ezeagwuna, 325 F.3d at 409.
Thus, in order to succeed on the petition for review, Yang must ultimately show that the
BIA’s discretionary decision was somehow arbitrary, irrational, or contrary to law. See
Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (quotation omitted). Yang has failed to
make such a showing.
III.
Yang does not dispute that she filed an untimely motion to reopen. Instead, she
argues that her motion should be considered pursuant to one of the exceptions to the time
restriction applicable to such motions. See 8 C.F.R. § 1003.2(c)(2). As mentioned above,
the BIA found that there was “insufficient evidence in this case establishing changed

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Yang also argues that, according to Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004), she2
meets the prima facie standard for reopening merely based upon her change in personal
circumstances. (Petitioner’s Brief at 13.) She claims that “at a minimum,” her personal
circumstances entitle her to have her case heard. (Id.) We disagree. Guo involved a
situation entirely different from that of Yang: (1) the alien in Guo submitted a timely
motion to reopen, and was not required to establish changed country conditions in China;
(2) in Guo, the alien, in contrast to Yang, had the burden to establish a prima facie case
demonstrating a reasonable likelihood that she would prevail on the merits; and (3) the
BIA in Guo, unlike here, applied the wrong standard.
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circumstances in China,” as required by 8 C.F.R. § 1003.2(c)(3)(ii) in order to avoid
application of the time restriction.
Yang argues that the BIA, in denying her untimely motion to reopen, gave only
“scant consideration of the proffered previously-unavailable evidence.” (Petitioner’s
Brief at 10.) We disagree.
As a preliminary matter, we agree with the Government that Yang’s changed
personal circumstance, i.e., the birth of her children, is distinct from changed county
conditions. See Liu v. Attorney General, 555 F.3d 145, 150-51 (3d Cir. 2009); see also2
Wang v. Board of Immigration Appeals, 437 F.3d 270, 273 (2d Cir. 2006). Relief is
appropriately denied “where a petitioner is seeking to reopen [her] asylum case due to
circumstances entirely of [her] own making after being ordered to leave the United
States.” Wang, 437 F.3d at 274.
In addition, Yang unsuccessfully argues that the BIA erred by failing to adequately
consider the evidence of changed conditions that she submitted with her motion to

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reopen. The record reflects that the BIA issued a clear and well-supported decision
denying Yang’s claim.
The BIA first determined that Yang’s reliance upon the Second Circuit’s decision
in Guo v. Gonzales, was misplaced. It pointed out that the BIA, upon remand in Guo,
“ultimately determined that the [alien’s] evidence did not adequately support the
reopening of the record.” (A.R. 2.) The BIA also noted that Yang’s assertion regarding
the case of Yu He Zheng (discussed in the 2006 Policy Statement), similar to its finding
in Matter of S-Y-G-, 24 I. & N. Dec. 247, 252 (BIA 2007), did not establish changed
circumstances. Furthermore, Yang’s Q & A document stated only that giving birth
outside of family planning guidelines “could” result in a fee (as noted in Matter of
S-Y-G-) and her proffered 2004 consular sheet and 2005 Congressional report failed to
establish that she would be persecuted. The 1997 letter that Yang included with her
motion was clearly “previously available” and the 2006 Congressional report indicated
that alleged “coercion” of those with several children consisted primarily of fines, which
did not constitute “persecution.” Additionally, the BIA concluded that Harry Wu’s 2004
congressional testimony was unclear and lacked a foundational basis and that recent State
Department reports indicating that Chinese children born abroad are “not counted” for
birth planning purposes for returnees is more persuasive than the testimonial documents
submitted by both Wu and John Aird.

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Lastly, the BIA found that the 2007 World Journal excerpt was not only unreliable,
but had no relevance to Yang or her locality and that there was insufficient evidence that
the articles discussing family planning policies in Linyi and Guangxi had any relevance to
Yang’s case. What is more, Yang admitted in her motion to reopen that “China officially
does not permit forced abortions and sterilizations and [instead] relies on economic
measures.” (See A.R. 17.) As a result, the BIA concluded that the evidence was
insufficient to establish changed circumstances in China and denied reopening Yang’s
case on that basis.
Based upon that analysis, we do not agree with Yang’s assertion that the BIA
failed to consider her new evidence or that the evidence does not support the BIA’s
conclusion. Indeed, we have remanded where the BIA has "fail[ed] to discuss most of the
evidentiary record," see Zheng v. Att’y Gen., 549 F.3d 260, 269 (3d Cir. 2008).
However, the BIA carefully considered Yang’s motion and concluded that she failed to
present evidence demonstrating that she will be subject to “arrest, physical mistreatment
or the degree of economic sanctions that would rise to the level of persecution” upon her
return to China. (A.R. 2.) Substantial evidence supports the BIA's conclusions.
Having found no abuse of discretion on the part of the BIA in denying Yang’s
untimely filed motion to reopen, we will deny the petition for review.

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