Xiu Jin Yu; Yong Sheng Liu v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4080
___________
XIU JIN YU;
YONG SHENG LIU,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A79-458-432 and A79-309-522
(U.S. Immigration Judge: Honorable Charles M. Honeyman)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 16, 2009
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed: September 28, 2009)
___________
OPINION OF THE COURT
___________
PER CURIAM.
Petitioners, Xiu Jin Yu and Yong Sheng Liu, natives and citizens of the People’s
Republic of China, petition for review of the Board of Immigration Appeals’ (“BIA”)

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order denying their motion to reopen. For the following reasons, we will deny their
petition.
Liu entered the United States on April 11, 2001, and the Immigration and
Naturalization Service served him with a Notice to Appear and placed him in removal
proceedings on June 5, 2001. Yu, Liu’s wife and the lead petitioner, arrived on August 1,
2002, and the INS placed her in removal proceedings on August 8, 2002. Both petitioners
admitted removability, but sought asylum, withholding of removal, and protection under
the regulations implementing the Convention Against Torture (“CAT”). The petitioners
feared returning to China, arguing that they would be forcibly sterilized for violating the
one-child policy. Specifically, the couple believed they were at risk because they had a
second child while residing in the United States.
Following a March 9, 2005 merits hearing, the Immigration Judge (“IJ”) ruled that
petitioners failed to establish eligibility for any form of relief, and ordered them removed
to China. In an August 16, 2006 opinion, the BIA adopted and affirmed the IJ’s decision.
Petitioners sought review in this Court and we denied their petition in a January 15, 2008
opinion. Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008).
On April 28, 2008, Petitioners filed a motion to reopen their removal proceedings
with the BIA. In the motion, Petitioners claimed that mistranslations of the 2002 Fujian
regulation appended to the 2005 and 2007 State Department Asylum Profile constituted
previously unavailable evidence establishing changed country conditions. Petitioners also

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introduced four other previously unavailable documents which they asserted shows that
China maintains a national policy of forced sterilization. The BIA denied the motion, and
petitioners have filed a timely petition for review from that order.
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). We will
uphold the BIA’s factual determinations so long as “they are ‘supported by reasonable,
substantial, and probative evidence on the record as a whole.’” Liu v. Att’y Gen., 555
F.3d 145, 148 (3d Cir. 2009) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
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 motion to reopen was not filed within
the 90-day window; therefore, petitioners must show changed country conditions in order
to excuse the untimeliness.
The petitioners’ primary contention is that the State Department’s translation of the
2002 Fujian regulation, which was incorporated into the 2005 and 2007 State

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Department’s Profile of Asylum Claims and Country Conditions in China, is inaccurate.
The BIA dismissed this claim because the original BIA decision did not rely on the 2007
Profile. Petitioners, however, assert that the BIA’s original decision cited to cases which
relied on the 2005 Profile, and therefore, it changed the agency’s understanding of
conditions in Fujian Province. (Petr.’s Br. at 27.) Further, though the regulation was
adopted in 2002, petitioners assert that the alleged mistranslation constitutes changed
circumstances inasmuch as the State Department translation was not available until
October 2005, seven months after the petitioners’ hearing before the IJ. See Filja, 447
F.3d at 253 (“previous hearing” as used in § 1003.2(c)(3)(ii) refers to the hearing before
the IJ).
We reject the petitioners’ contentions. Even assuming, for the sake of argument,
that the petitioners’ version of the 2002 regulation is material to their case, the claim fails
because the regulation was in place at the time of petitioners’ hearing before the IJ.
Petitioners cite no statute, regulation, or case-law, and we are aware of none, which
would support their contention that a State Department mistranslation of a document
could constitute changed circumstances in an asylum applicant’s country of nationality.
Cf. Shardar v. Att’y Gen., 503 F.3d 308, 315 (3d Cir. 2007) (“The re-emergence of the
political party responsible for the applicant’s prior persecution is the type of situation that
would constitute a change in country conditions.”) To the extent that petitioners argue
that the BIA’s reliance on the mistranslation violated their right to due process, the instant

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petition for review is not a means to re-litigate the original removal proceedings. See
Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
The BIA also did not abuse its discretion in finding that petitioners failed to
establish a prima facie case to warrant reopening their asylum proceedings. See Zheng v.
Att’y Gen., 549 F.3d 260, 265 (3d Cir. 2008) (citation and quotations omitted) (BIA may
deny a motion to reopen if the movant fails to establish a prima facie case for the relief
sought). Petitioners argue that a document entitled “Announcement of Further
Improvement of the Family Planning Work” establishes a reasonable likelihood that they
would be persecuted if removed to China. (Petr.’s Br. at 41.) The BIA, however, found
that the document did not establish a prima facie case because it did not state that
sterilization was mandatory for couples with two or more children nor did it show that a
violator of the one-child policy would be forced to undergo sterilization. (Admin. Record
at 3.) The BIA gave reasoned consideration to the motion and made adequate findings to
support its conclusion. Zheng, 549 F.3d at 268. We do not find that the evidence
compels a contrary conclusion. See Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.
2001). For similar reasons, we agree with the BIA that the other three documents
petitioners submitted do not show a change in China’s coercive population program
which would warrant a reopening of petitioners’ case.
For the foregoing reasons, we will deny the petition for review.

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