Qin Liu v. Attorney General of the United States

IMG-009 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3282
QIN LIU,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A79-407-596)
Immigration Judge: Honorable Donald Vincent Ferlise
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 4, 2009
Before: SLOVITER, JORDAN AND GREENBERG, Circuit Judges
(Opinion filed: November 5, 2009)
OPINION
PER CURIAM
Qin Liu, a native and citizen of China, petitions for review of an order of the Board
of Immigration Appeals (“BIA”) denying her motion to reopen her immigration
proceedings. For the reasons below, we will deny the petition for review.

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Liu arrived in the United States in June 2001. She appeared before an Immigration
Judge (“IJ”) and conceded that she was removable for entering without a valid entry
document. See Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C.
§ 1182(a)(7)(A)(i)(I)]. Liu applied for asylum, withholding of removal, and relief under
the United Nations Convention Against Torture (“CAT”), alleging that she suffered
persecution as a Falun Gong practitioner. The IJ denied relief in July 2003, finding that
Liu was not credible. The BIA affirmed without opinion in August 2004.
In February 2008, Liu filed a motion to reopen the proceedings, claiming that she
was the mother of two children born in the United States and that she likely would be
persecuted under China’s stricter enforcement of its coercive family planning policy. In
support of her motion, Liu submitted a notice issued by the Villagers’ Committee in
response to her “inquiry on enforcement of the Family Planning Law in our village.” The
notice advised Liu that the family planning policy is “strictly enforce[d],” that foreign-
born children might be treated as Chinese citizens for purposes of the policy, that “those
with two children will be targets for sterilization,” and that, despite her residency in the
United States, Liu “should strictly abide by the relevant local family planning ordinance”
if she returns. In addition, Liu provided an affidavit from her mother dated January 23,
2008, stating that “in the past year, the Family Planning Law was more strictly
implemented in our hometown.” Liu’s mother also identified two villagers who were
forcibly sterilized on June 4, 2007, because they had more than one child. Information
detailing China’s family planning policies was also documented in United States

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government reports (including State Department Country Reports), local and national
Chinese government policy documents and propaganda materials, numerous news
articles, Congressional testimony, and NGO reports.
The BIA concluded that the motion to reopen was untimely, see 8 C.F.R
§ 1003.2(c)(2), and that the evidence Liu submitted in support of her motion did not
establish changes in country conditions sufficient to warrant reopening. See 8 C.F.R.
§ 1003.2(c)(3)(ii). Accordingly, the BIA denied the motion to reopen. Liu filed a timely
petition for review of the order. The government has moved for summary affirmance,
which we will construe as a motion for summary denial of the petition for review.
An alien generally may file only one motion to reopen, and must file the motion
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). Liu filed her motion to reopen over
three years after the BIA issued the final removal order. The time and number
requirements do not apply when the motion to reopen relies 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
hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The term “previous hearing” in § 1003.2(c)(3)(ii)
refers to the proceedings before the IJ. See Filja v. Gonzales, 447 F.3d 241, 252 (3d Cir.
2006). We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252], and we review the
Board’s denial of a motion to reopen for abuse of discretion. See Liu v. Att’y Gen., 555
F.3d 145, 148 (3d Cir. 2009). Under this deferential standard of review, we will not

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disturb the Board’s decision unless it is arbitrary, irrational, or contrary to the law. See
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).
Liu claims that “the Board failed to recognize that the totality of the evidence
demonstrates a relevant change in country conditions in China.” We disagree. In Zheng
v. Attorney General, 549 F.3d 260 (3d Cir. 2008), we vacated the BIA’s denial of motions
to reopen based on changed country conditions in China because the BIA failed to
thoroughly discuss the evidence submitted by the petitioners or explain why it was not
sufficient. Id. at 268-69, 271. We noted that “‘[immigration judges] and the BIA have a
duty to explicitly consider any country conditions evidence submitted by an applicant that
materially bears on his claim,’ and ‘[a] similar, if not greater, duty arises in the context of
motions to reopen based on changed country conditions.’” Id. at 268 (quoting Guo v.
Gonzales, 463 F.3d 109, 115 (2d Cir. 2006)). As we recognized, “‘[t]he BIA should
demonstrate that it has considered such evidence, even if only to dismiss it. In so doing,
the BIA 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)).
Here, the BIA noted that it had “examined the evidence that was before the
Immigration Judge and the proffered evidence submitted with the motion.” The Board
specifically commented on the “evidence the respondent submitted of the enforcement of
the family planning policies in her hometown” and her “claim of recent sterilizations in
her hometown.” The BIA also cited both the 2000 and 2005 State Department Country

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1 We deny the Government’s motion for summary denial of the petition for review.
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Reports on Human Rights Practices, noting that “the Chinese government continues to
implement comprehensive and often harshly coercive family planning policies” and that
“there continue to be documented instances in which local family planning officials have
used coercion, including forced sterilization, to meet government goals.” Based on this
material, the BIA concluded that “the evidence . . . reveals an essentially static situation
with regard to the enforcement of the Chinese government’s coercive population control
policies, rather than a change in the implementation of the family planning policies in
[Liu’s] hometown since the removal hearings.”
We conclude that the Board’s decision was consistent with the standards we set
forth in Zheng. The BIA referred to both the background documentation and the
evidence specific to Liu’s hometown. Moreover, the Board provided specific reasons
why the evidence did not establish a material change in the enforcement of the family
planning policy. These reasons are supported by the record. Thus, we cannot say the
BIA abused its discretion in denying Liu’s motion to reopen. See Zheng, 549 F.3d at 268
Based on the foregoing, we conclude that the evidence submitted by Liu does not
compel the conclusion that she established changed country conditions for individuals
returning to China with United States citizen children. Accordingly, we will deny the
petition for review.1

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