Shun Chen Ni v. ROBERT M. WILKINSON, Acting Attorney General of the United States

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
SHUN CHEN NI,
Petitioner,
v.
ROBERT M. WILKINSON, Acting
Attorney General of the United
States, *
Respondent.
No. 20-9520
(Petition for Review)
_________________________________
ORDER AND JUDGMENT * *
_________________________________
Before BACHARACH, Circuit Judge, LUCERO, Senior Circuit Judge, and
PHILLIPS, Circuit Judge.
_________________________________
* During the pendency of Mr. Ni’s petition for review, Mr. Robert M.
Wilkinson became Acting Attorney General of the United States. We’ve
thus substituted General Wilkinson as the respondent. See Fed. R. App. P.
43(c)(2).
** We conclude that oral argument would not materially help us to
decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
March 4, 2021
Christopher M. Wolpert
Clerk of Court
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The issue here involves the scope of the Board of Immigration
Appeals’ discretion over motions to reopen. This issue emerged after two
Chinese citizens, Mr. Shun Chen Ni and his wife (Ms. Liying Qiu), had
applied for asylum, withholding of removal, and protection under the
Convention Against Torture based on fear of Chinese persecution against
Christians. The Immigration Judge and Board of Immigration Appeals
denied the couple’s applications.
Both Mr. Ni and Ms. Qiu then sought to reopen their proceedings,
claiming that conditions in China had worsened for Christians. The
motions to reopen were denied, and Mr. Ni and Ms. Qiu filed petitions for
review. We denied Mr. Ni’s petition for review, reasoning that China’s
oppression of Christians had not materially changed. Ni v. Sessions, 702 F.
App’x 674, 676 (10th Cir. 2017) (unpublished).
Though we had denied Mr. Ni’s petition for review, we granted his
wife’s, concluding that the Board of Immigration Appeals had erred in
downplaying her evidence of increased persecution against Christians from
2011 to 2015. Qiu v. Sessions, 870 F.3d 1200, 1202–04, 1206 (10th Cir.
2017).
After we determined that conditions in China had materially
worsened for Christians, Mr. Ni moved again for reopening. Despite our
opinion in his wife’s case, the Board of Immigration Appeals concluded
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again that Mr. Ni had failed to show a material change in country
conditions.
This conclusion is unsupportable. Mr. Ni’s evidence of worsening
conditions in China largely mirrored his wife’s evidence, which had led us
to grant her petition for review. Mr. Ni’s evidence was even stronger than
his wife’s because China had recently adopted a regulatory crackdown on
practicing Christians. We thus grant Mr. Ni’s petition for review.
I. We apply the abuse-of-discretion standard to the Board’s
determination that conditions in China did not materially worsen.
Mr. Ni is seeking review of his second motion to reopen filed
roughly ten years after the order of removal. So the threshold issue is
whether the motion to reopen was filed out-of-time.
A noncitizen can ordinarily seek reopening only in the 90-day period
following the removal order. 8 U.S.C. § 1229a(c)(7)(C)(i). But the 90-day
deadline does not apply when a noncitizen seeks reopening based on
material evidence of changes in country conditions that couldn’t have been
discovered at the time of the removal proceeding. 1 Applying this test, the
1 The statute refers to a change in conditions since the “previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(i). The first motion to reopen
could arguably be considered “the previous proceeding.” But when a
noncitizen has filed two motions to reopen, the Board compares the new
country conditions to the conditions at the time of the removal proceeding.
In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007).
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Board concluded that Mr. Ni had not shown a material change in country
conditions.
In reviewing that conclusion, we apply the abuse-of-discretion
standard. Qiu, 870 F.3d at 1202. The Board abuses its discretion when
making a factual finding unsupported by the evidence. Id+
II. The law-of-the-case doctrine does not prevent consideration of
the merits.
Mr. Ni’s evidence resembled the kind of evidence that he had
presented for his first motion to reopen. And, as noted, we upheld the
denial of his first motion to reopen. The government thus argues that the
law-of-the-case doctrine prevents relief. We disagree.
The law-of-the-case doctrine does not apply when the controlling
authority has changed. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251
(10th Cir. 2011). And the controlling authority changed here through our
precedential opinion in Qiu.
As the government points out, Mr. Ni’s second motion to reopen
included much of the evidence that he’d presented with his first motion.
That evidence largely duplicated the evidence that his wife had presented
with her own motion to reopen. We regarded the wife’s evidence as
compelling proof of increased persecution of Christians from 2011 to 2015.
Qiu, 870 F.3d at 1206.
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We reached a different conclusion when considering virtually
identical evidence in Mr. Ni’s first petition for review. But our opinion
there was not precedential. In contrast, our opinion in his wife’s case (Qiu)
was precedential. Given the existence of virtually identical evidence in the
two petitions for review, our precedential opinion in Qiu constitutes a
change in our controlling authority. The law-of-the-case doctrine thus does
not apply.
III. Given the controlling authority in Qiu, we conclude that the
Board abused its discretion in finding no material change in
country conditions.
In Qiu, we considered whether China’s oppression of Christians had
worsened materially from 2011 to 2015. Here we are considering whether
Chinese oppression worsened materially from 2009 to 2019. As a result, we
could uphold the Board’s decision only if (1) Nr. Ni’s evidence was
inferior to the evidence that his wife had presented or (2) the evidence
showed improvement in China’s treatment of Christians from 2015 to 2019.
There is no basis for either conclusion. With his second motion to
reopen, Mr. Ni presented
 evidence resembling the material that his wife had presented
and
 evidence of increased oppression following our decision in his
wife’s case.
In Qiu, the Court relied mainly on five evidentiary items: (1) two
news articles referring to a China Aid Report, (2) the Council on Foreign
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Relations’ 2015 report on Christianity in China, (3) the U.S. Commission
on International Religious Freedom’s Annual Report for 2015, (4) the U.S.
State Department’s 2014 Country Report on Human Rights Practices, and
(5) a sworn statement by Ms. Qiu’s mother. Id. at 1202–04. Mr. Ni
provided similar evidence in his second motion to reopen.
News articles about a China Aid report. In Ms. Qiu’s case, we
discussed two news articles about a China Aid report, which had noted
(1) a 300% increase in persecution against Christians from 2013 to 2015,
(2) a growing sense of crisis, and (3) a drastic increase from 2013 to 2014
in the number of Chinese citizens imprisoned for their religious practices.
Id. at 1202.
Mr. Ni similarly submitted news articles detailing the increase in
persecution of Christians in China. One of the articles explained that “the
Chinese government [was] waging the most severe suppression of
Christianity in the country since religious freedoms [had been] granted by
the Chinese constitution in 1982.” R. at 52. Another article presented a
quotation from the founder of China Aid, who stated that China’s
crackdown in 2018 had represented the worst oppression against Christians
in 30 years. Id. at 48.
The Council on Foreign Relations’ 2015 Report on Christianity in
China. In Qiu, the Court also considered a report from the Council on
Foreign Relations. This report noted China’s movement upward from 37th
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in 2014 to 29th in 2015 on a list of the world’s greatest persecutors of
Christianity. Qiu, 870 F.3d at 1202.
Mr. Ni didn’t present a similar listing. But he did submit reports by
religious experts stating that the Chinese government was engaging in the
greatest crackdown on Christianity in 30 years. R. at 48, 52, 62.
The U.S. Commission on International Religious Freedom’s Annual
Report for 2015. In Qiu, we also relied on an annual report by the U.S.
Commission on International Religious Freedom, which stated that the
Chinese government had “engaged in unprecedented violations” against
Protestant Christians in 2014. Qiu, 870 F.3d at 1202–03 (internal quotation
marks omitted). The report noted that these violations had included the
destruction or removal of crosses from at least 400 Christian churches.
Mr. Ni presented a more recent annual report from the U.S.
Commission on International Religious Freedom. This report stated that in
2018, “[t]he Chinese government . . . [had] intensified its crackdown” by
closing or demolishing thousands of churches or religious sites. R. at 61.
In the report, the Commission pointed out that the government not only had
closed churches but also had increased restrictions, like banning online
sales of the Bible and depiction of Christian symbols. Id.
The U.S. State Department’s International Religious Freedom Report
for 2014. Qiu also relied on the U.S. State Department’s International
Religious Freedom Report for 2014. This report explained that the Chinese
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government had penalized lawyers for taking cases “defending
house-church activists.” Qiu, 870 F.3d at 1203 (ellipsis & internal
quotation marks omitted).
Mr. Ni presented similar evidence, explaining that Chinese
authorities had revoked professional licenses for attorneys who defended
Christians. R. at 82.
Sworn statement by Ms. Qiu’s mother. In Qiu, the Court also relied
on a sworn statement by Ms. Qiu’s mother, who had stated that (1) she
suffered physical harm because of her practice of Christianity and (2) the
Chinese government intended to punish Ms. Qiu. Qiu, 870 F.3d at 1203.
Mr. Ni presented his own sworn statement by Ms. Qiu’s mother. In
this sworn statement, the mother explained that her religious persecution in
China had worsened after 2016. R. at 24.
IV. Mr. Ni presents other evidence, unavailable to Ms. Qiu, of
increased persecution from regulations adopted in 2018.
As noted, Ms. Qiu showed increased persecution from 2011 to 2015.
But Mr. Ni pointed out that the Chinese government had intensified its
oppression of Christians in 2018. In that year, the Chinese government
adopted regulations banning online sales of the Bible, prohibiting
celebration of Christmas in many cities, requiring prior approval for
Christians to travel abroad, forcing churches to install cameras to allow
police surveillance, requiring the removal of crosses from churches, and
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prohibiting minors from participating in religious activities. R. at 48,
66-67, 75, 100. These regulations led Vice President Pence to conclude in
2018 that “religious persecution [was] growing in both scope and scale in
[China].” Id. at 67 (internal quotation marks omitted).
* * *
Given the heightened persecution wrought by the 2018 regulations,
Mr. Ni’s evidence of worsened conditions is even more compelling than his
wife’s. Given our conclusion that the Board abused its discretion in
upholding the denial of Ms. Qiu’s motion to reopen, we are constrained to
reach the same conclusion here. We thus conclude that the Board abused its
discretion by upholding the denial of Mr. Ni’s second motion to reopen.
Given this conclusion, we grant Mr. Ni’s petition for review and remand to
the Board for further proceedings.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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