2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-17-2012

Feng Li v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1761

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1761

___________

FENG ZHI LI; YU FANG CHEN;

ZHU YU CHEN; ZHEN HUA CHEN,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(A96-109-436; A96-109-435; A96-109-434; A96-109-433)

Immigration Judge: Hon. Grace A. Sease

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 2, 2012

Before: SMITH, HARDIMAN AND ROTH, Circuit Judges

(Opinion filed: July 17, 2012)

___________

OPINION

___________

PER CURIAM

Feng Zhi Li and her children, Zhen Hua Chen, Yu Fang Chen, and Zhu Yu Chen 

(as derivative beneficiaries), petition for review of an order of the Board of Immigration 
2

Appeals (“BIA”) denying a motion to reopen. For the reasons that follow, we will deny 

the petition for review.

I.

Inasmuch as we are writing primarily for the parties and have previously discussed 

the background of the case, see Feng Zhi Li v. Att’y Gen., 379 F. App’x 235 (3d Cir. 

2010), we will recite the facts only as necessary to our decision. Li and her children, all 

natives of Fujian Province in the People’s Republic of China, conceded removability and

applied for asylum, withholding of removal, and relief under the United Nations 

Convention Against Torture. Li claimed that she was entitled to relief because she and 

her husband, who remains in China, had not complied with family planning regulations in 

Fujian Province, and that her husband had been forcibly sterilized as a result. An 

Immigration Judge found that Li’s claim was not credible due in part to her submission of 

an inconsistent and unauthenticated letter purportedly written by Chinese officials to 

corroborate her husband’s sterilization.1

Li filed a motion to reconsider, which the BIA denied in 2006. We dismissed her 

petition for review of that denial because the only claim that she raised—ineffective 

 Her applications were therefore denied. The

BIA affirmed the denial of relief, and Li did not seek review.

 1 At the time of Li’s removal proceedings, an applicant who had established that his or 

her spouse had undergone a forced abortion or sterilization procedure was per se entitled 

to refugee status. In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc). The 

presumption of asylum eligibility based on a spouse’s forced abortion or sterilization no 

longer applies. See Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir. 2009) (en banc); In 

re J-S-, 24 I. & N. Dec. 520 (A.G. 2008).
3

assistance of counsel—had not been raised below. C.A. No. 06–4155. Li then filed a 

motion to reopen with the BIA, alleging changed country conditions and ineffective 

assistance of counsel. The motion was denied in 2008, and Li sought review. She 

pursued only her ineffectiveness claim before this Court, and we denied the petition for 

review, concluding that the underlying motion to reopen was properly denied. Li

Li filed a second motion to reopen in 2011, again claiming changed country 

conditions in China. She alleged that because the BIA did not credit her claim that her 

husband was sterilized, it should consider whether she herself has a well-founded fear of 

being forcibly sterilized. The BIA denied the motion, concluding that the evidence Li

submitted did not establish that reopening was warranted based on changed 

circumstances.

, 379 F. 

App’x at 239-40.

II.

Li now seeks review of the BIA’s March 2, 2011 decision denying her second 

motion to reopen.

2 We have jurisdiction pursuant to 8 U.S.C. § 1252. The BIA’s denial 

of a motion to reopen is reviewed for an abuse of discretion and will not be disturbed 

unless it was arbitrary, irrational, or contrary to law. Fadiga v. Att’y Gen.

 2 After she filed this petition for review, Li filed a motion with the BIA to reconsider the 

denial of her motion to reopen. The BIA denied the motion to reconsider on November 

22, 2011, and Li did not petition for review of that denial. Our review of the present case 

is therefore limited to the BIA’s March 2, 2011 decision.

, 488 F.3d 142, 

153 (3d Cir. 2007).
4

An alien may file only one motion to reopen with the BIA and must do so within 

90 days of the date of entry of a final administrative order of removal. 8 U.S.C. 

§ 1229a(c)(7)(C)(i). However, these limitations do not apply to motions to reopen 

seeking asylum or withholding of removal based on 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 U.S.C. § 1229a(c)(7)(C)(ii); 

Zheng v. Att’y Gen.

Li does not dispute that the BIA correctly determined that the motion to reopen 

was untimely and number-barred. In addition, we agree with the BIA that the evidence 

Li submitted with her motion to reopen was insufficient to demonstrate changed 

circumstances. To support her contention that circumstances in China have changed such 

that she faces an increased likelihood of forced sterilization should she return, Li

submitted a photocopy of an unsigned letter purportedly written to her husband by the 

Population and Birth Control Bureau of Changle City, as well as letters and photographs 

of two Chinese women who claimed that they had been forcibly sterilized for failure to 

comply with family-planning policies.

, 549 F.3d 260, 265 (3d Cir. 2008).

Li argues that the BIA erred by rejecting the Population and Birth Control Bureau 

letter for lack of authentication. Official records entered into evidence in any proceeding 

before an Immigration Judge or the BIA must be authenticated. 8 C.F.R. § 1287.6. 

Although authentication need not be accomplished solely by the methods set forth in 

§ 1287.6, see Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004), Li failed to authenticate 
5

the purported letter by any means. We perceive no abuse of discretion in the BIA 

requiring Li to authenticate the letter, especially in light of the fact that it was obtained by 

her husband, who had previously procured another unauthenticated letter that was 

rejected. See Chen v. Att’y Gen.

Li’s remaining submissions likewise do not indicate that her case should have

been reopened. The affidavits of two women apparently forced to undergo sterilization 

do not establish a change in conditions in China such that Li is at an increased risk of 

persecution. To the contrary, the Immigration Judge’s 2004 opinion denying Li’s 

applications for relief from removal noted instances of forced sterilization in Fujian 

Province. Evidence of two isolated incidents occurring over the span of several years 

does not reflect a material change in conditions.

, 676 F.3d 112, 117 (3d Cir. 2011).

Li also argues that the BIA should have considered additional evidence, including 

a 2006 State Department Country Report that was not submitted with her present motion 

to reopen, but which she had produced in earlier proceedings before the BIA. In support 

of this contention, Li notes that we cited the 2006 Country Report in Huang v. Attorney 

General, 620 F.3d 372 (3d Cir. 2010). Although Huang involved the BIA’s failure to 

discuss the 2006 Country Report, we did not hold that the Board must address evidence 

that the petitioner had previously submitted. Indeed, because a motion to reopen based 

on changed conditions may only be granted if the alien produces material evidence that 

was “not available and would not have been discovered or presented at the previous 
6

proceeding,” § 1229a(c)(7)(C)(ii), the BIA did not err by failing to reconsider previously 

submitted materials that Li did not attach to her motion to reopen.3

III.

In sum, because the BIA properly concluded that Li did not satisfy the exception 

to the time and numerical limitations for filing a motion to reopen based on changed 

country conditions, we will deny the petition for review.

 3 To the extent that Li argued that her motion to reopen should have been granted in light 

of factual similarities between her circumstances and those at issue in Huang, we note 

that the opinion she attached to her motion to reopen does not itself constitute evidence of 

changed country conditions.