Chun Fen Chen v. Attorney General of the United States

IMG-052 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4320
CHUN FEN CHEN,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-340-982)
Immigration Judge: Honorable Charles M. Honeyman
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 2, 2009
Before: BARRY, STAPLETON AND NYGAARD, Circuit Judges
(Opinion filed: December 17, 2009)
OPINION
PER CURIAM
Chun Fen Chen petitions for review of an order of the Board of Immigration
Appeals (BIA). For the reasons below, we will deny the petition for review.

-- 1 of 4 --

1 Chen had entered the United States using a fraudulent Singaporean passport.
2 Chen does not challenge the denial of his motion to reconsider.
3 In her petition for review, Chen requests review of the BIA’s June 2004 and July
2007 orders. However, the petition for review is untimely as to those orders, and we lack
jurisdiction to review them. See 8 U.S.C. § 1252(b)(1); McAllister v. Attorney General,
444 F. 3d 178, 185 (3d Cir. 2006).
2
Chen, a native of China, was charged as removable as an alien who entered the
United States through misrepresentation1 and without valid entry documents. She applied
for asylum, withholding of removal, and relief under the Convention against Torture.
Chen argued that she had been persecuted under the family planning policy in China. The
Immigration Judge found Chen removable and not credible and denied relief. The BIA
dismissed her appeal as untimely and denied her motion for reconsideration.
Chen then filed an unsuccessful motion to reopen alleging ineffective assistance of
counsel. In 2006, Chen filed another motion to reopen in which she argued that she had
given birth to a second child in the United States and would be subject to sterilization if
returned to China. In July 2007, the BIA denied the motion; it concluded that Chen had
not shown evidence of changed country conditions in China. On August 21, 2007, Chen
filed yet another motion to reopen with the BIA as well as a motion to reconsider. She
argued that she had new evidence that she would be sterilized if returned to China. The
BIA denied the motions, and Chen filed a timely petition for review.2
We have jurisdiction pursuant to 8 U.S.C. § 1252.3 We review the denial of a
motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.

-- 2 of 4 --

3
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).
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). The time and number requirements are waived for
motions that rely on evidence of changed circumstances arising in the country of
nationality. Id. We must uphold the BIA’s factual determinations if they are supported
by substantial evidence. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir. 2009).
Under the substantial evidence standard, we can reject the BIA’s findings only if “any
reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
As new evidence, Chen submitted an affidavit from her father. He stated that he
inquired of the local village committee and was told that Chen and her husband would be
subject to sterilization if they returned to China. C.A.R. at 32-33. Chen also submitted a
notice from the village committee stating that she and her husband must return for
sterilization. C.A.R. at 38. The BIA concluded that, in light of the previous adverse
credibility finding, the evidence submitted was not sufficient to warrant reopening. It
also noted that the village committee notice was not an original document, was
unauthenticated, and was obtained for the purposes of filing the motion to reopen. The
BIA also observed that the notice was inconsistent with the evidence described in Matter
of J-H-S-, 24 I&N Dec. 196 (BIA 2007), Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007),

-- 3 of 4 --

4 Chen is from the Fujian province.
4
and Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007). C.A.R. at 2-4.
Chen argues that the BIA should not have rejected her evidence on the grounds
that it was unauthenticated. Given the prior adverse credibility determination, we think it
reasonable for the BIA to have insisted on greater authentication than it might have
otherwise. Zheng v. Gonzales, 500 F.3d 143, 147 (3d Cir. 2007). Thus, the BIA did not
err in rejecting this evidence.
Moreover, even if the document were authenticated, the BIA also plausibly
rejected the content of the village committee notice as inconsistent with the evidence
discussed in its prior precedents. In Matter of J-W-S-, the BIA concluded that China did
not have a policy of requiring the forced sterilization of a parent who returns with a
second child born outside of China. In In re S-Y-G-, the BIA determined that the
petitioner had not shown changed country conditions. In In re J-H-S-, the BIA
determined that enforcement of the family planning policy was lax and uneven in the
Fujian province and there was no indication that the sterilizations were accomplished
through force and not incentives.4
Chen has not shown that the record would compel any reasonable adjudicator to
conclude that she had shown that she was prima facie eligible for asylum based on
changed country conditions. Accordingly, we will deny the petition for review.

-- 4 of 4 --