2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-29-2011

Bao Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4047

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IMG-063 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-4047

____________

BAO YING CHEN; JIN BAO LIU,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

__________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

(Agency No. A077-713-720 & A072-432-397)

Immigration Judge: Rosalind K. Malloy

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 10, 2011

Before: AMBRO, GREENAWAY, JR. AND GREENBERG, Circuit Judges

(Opinion filed: March 29, 2011)

____________

OPINION

____________

PER CURIAM

Bao Ying Chen and Jin Bao Liu petition for review of the Board of Immigration 

Appeals‟ final order of removal. For the reasons that follow, we will deny the petition for 

review.

Chen originally sought asylum on the basis of political persecution because of her 

opposition to China‟s population control policies. Chen and Liu were married in 1981, 
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had a son in 1982, and, after coming to the United States in 1999, Chen gave birth to the 

couple‟s daughter. On March 1, 2007, more than two years after the Board‟s decision, 

Chen and Liu filed an untimely motion to reopen proceedings with the Board, contending 

that they had new evidence, not previously available, that China has a policy that Chinese 

nationals with two children will be subject to family-planning enforcement upon 

resettlement in China even though one of the children was born in the United States. 

Chen and Liu, natives and citizens of China, and wife and husband, were ordered 

removed by an Immigration Judge after their requests for asylum, withholding of 

removal, and relief under the Convention Against Torture were denied. The IJ made an 

adverse credibility finding. In a decision dated February 4, 2005, the Board of 

Immigration Appeals upheld the IJ‟s adverse credibility finding, affirmed the decision, 

and dismissed the appeal. We dismissed their petition for review in Chen v. Gonzales, 

173 F. App‟x 959 (3d Cir. 2006). 

On August 13, 2007, the Board denied the couple‟s motion to reopen removal 

proceedings as untimely filed. As an initial matter, the motion was not filed within 90 

days as required by 8 C.F.R. § 1003.2. The Board noted that: “The respondent[s] argue[]

that their current motion is not subject to the time limitations provided in 8 C.F.R. § 

1003.2(c)(2) because they are submitting a new asylum application based on „changed 

circumstances arising in the country of nationality‟ which excuse[s] their otherwise 

barred motion. See 8 C.F.R. § 1003.2(c)(3)(ii) (providing changed circumstances 

exception). The respondents‟ claim is based upon the 1999 birth of their United States 

citizen daughter.” A.R. 42. The Board then held that Chen and Liu‟s evidence did not 

establish that circumstances in China have changed since the merits hearing.
3

Chen and Liu timely petitioned for review and we granted that petition on the 

basis of Zheng v. Att‟y Gen. of U.S., 549 F.3d 260, 268 (3d Cir. 2008) (Board has duty to 

explicitly consider any country conditions evidence submitted by applicant that 

materially bears on his claim). Although we upheld the Board in a number of respects, 

we concluded that the Board did not consider certain specific items of the couple‟s 

evidence. See Bao Ying Chen v. Att‟y Gen of U.S., 307 F. App‟x 708, 711 (3d Cir. 

2009). On remand, Chen and Liu submitted additional evidence consisting of an affidavit 

from Zhengying Quan (a woman in China who claimed that she was forced to undergo 

sterilization), her identity card and photographs, and a document from the Population &

Family Planning Bureau, Gulou District, Fuzhou City.

On November 30, 2009, the Board again denied the motion to reopen. The Board 

determined that the new evidence – the affidavit, identity card, and photographs of the 

woman in China who claimed that she was forced to undergo sterilization – was 

insufficient to support an untimely motion to reopen based on changed conditions in 

China because it was not supported by a medical report, sterilization certificate, or any 

detailed information of the circumstances surrounding the alleged forced sterilization. 

The Population & Family Planning Bureau document, which purported to be a response 

to an inquiry submitted on Chen‟s behalf, was not authenticated either in accordance with 

the governing regulation, 8 C.F.R. § 1287.6(b), or our precedent, see, e.g., Liu v. 

Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004) (8 C.F.R. § 287.6 is “not an absolute rule of 

exclusion”); Leia v. Ashcroft, 393 F.3d 427, 434 (3d Cir. 2005) (aliens may prove 

authenticity of documents through means other than those identified in 8 C.F.R. § 287.6), 

and thus the Board would not consider it. The Board stated that Chen and Liu had failed 
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to establish the authenticity of their new evidence in any manner, which the Board 

suggested was especially problematic for them because the IJ found that they previously 

had submitted evidence which was fabricated and untruthful.

The Board on remand also specifically considered the evidence we identified in 

Bao Ying Chen, 307 F. App‟x 708, 711-12, and noted that it reflected that China regards 

a child of Chinese nationals who have not permanently settled in another country as a 

Chinese national. Nevertheless, this evidence is insufficient to support an untimely 

motion to reopen based on changed conditions in China, 8 U.S.C. § 1229a(c)(7)(C)(ii),

because it did not reflect a change in China‟s population control policies, nor did it 

indicate that Chinese nationals who have a second child born in the United States will 

face forcible sterilization upon their return to China, see, e.g., Matter of S-Y-G-, 24 I. & 

N. Dec. 247 (BIA 2007).

Chen and Liu have timely petitioned for review. We have jurisdiction under 8 

U.S.C. § 1252(a)(1), (b)(1). The couple contend in their brief that the Board abused its 

discretion in denying their motion to reopen on remand by failing to properly consider 

their new evidence and in holding that their evidence was insufficient to establish 

changed circumstances.

We will deny the petition for review. We review the Board‟s denial of a motion to 

reopen for abuse of discretion. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 

314, 323 (1992). Under this deferential standard of review, we will not 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). “A motion to reopen proceedings shall state 

the new facts that will be proven at a hearing to be held if the motion is granted and shall 
5

be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). “A 

motion to reopen proceedings shall not be granted unless it appears to the Board that 

evidence sought to be offered is material and was not available and could not have been 

discovered or presented at the former hearing.” Id. 

The “motion must be filed no later than 90 days after the date on which the final 

administrative decision was rendered in the proceeding sought to be reopened,” id. at 

1003.2(c)(2), except that the time limitation does not apply where the alien seeks to 

“apply or reapply for asylum or withholding of deportation based on changed 

circumstances arising in the country of nationality or in the country to which deportation 

has been ordered, if such evidence is material and was not available and could not have 

been discovered or presented at the previous hearing,” id. at 1003.2(c)(3)(ii). See also 8 

U.S.C. § 1229a(c)(7)(C)(ii).

Because Chen and Liu‟s motion to reopen was not filed within the required 90 

days, it had to be based on changed country conditions in China with respect to the 

Chinese government‟s enforcement of its population control policies. We conclude that 

the Board did not abuse its discretion in denying their untimely motion to reopen because 

they did not make the required showing.1 Under the standards we set forth in Zheng, 549 

F.3d 260, the Board must explicitly consider any country conditions evidence that 

materially bears on an applicant‟s claim, see id. at 268. On remand, the Board properly 

 

1 The Board originally and on remand understood Chen and Liu to have invoked the 

“changed circumstances” exception, as did the Attorney General when the case was 

originally briefed, see Respondent‟s Brief in C.A. 07-3705, at 11. Accordingly, the 

Attorney General‟s current objection to our construction of the basis of the couple‟s 

request to have their untimely motion considered on the merits, see Respondent‟s Brief, 

at 18-19 n.6, is both inconsistent with his original position and unpersuasive.
6

considered the specific evidence we identified for consideration in Chen and Liu‟s case. 

In evaluating their documentary evidence, the Board relied on its prior evaluation of 

similar evidence, see Matter of S-Y-G-, 24 I. & N. Dec. 247. This was reasonable. 

Matter of S-Y-G- held that, despite claims by the asylum applicants of an official policy 

of sterilization after the birth of two children, the State Department was not aware of such 

a policy at either the national or provincial level. We note also that Matter of J-W-S-, 24 

I. & N. Dec. 185 (BIA 2007), held that the evidence of record did not demonstrate that 

the Chinese government has a national policy of requiring forced sterilization of a parent 

who returns with a second child born outside of China, or that Fujian Province officials in 

particular were particularly likely to punish, by forcible sterilization, returning Chinese 

nationals with “unauthorized” children born abroad. See also Matter of H-L-H- & Z-YZ-, 25 I. & N. Dec. 209, 214 (BIA 2010) (“Although acknowledging that there were 

„reportedly‟ forced sterilizations in Fujian in 2006, the State Department observes [in its 

2007 Profile of Asylum Claims] that Consulate General officials visiting Fujian have 

found that coercion through public and other pressure has been used, but they did not find 

any cases of physical force employed in connection with abortion or sterilization.”).

Although we did not direct the Board to consider any new evidence on remand, 

Chen and Liu were permitted to submit additional evidence. The Board considered it and 

rejected it as unreliable and insufficient, and we conclude that this was not an abuse of 

the Board‟s discretion. Chen and Liu contend that the document from the Population & 

Family Planning Bureau, Gulou District, Fuzhou City, dated February 8, 2009, was not 

given meaningful consideration by the Board as required by Zheng. See Petitioner‟s 

Brief, at 7, 9. They also argue that the Board should have remanded the matter to the IJ 
7

so that the State Department could investigate its authenticity. See id. at 7, 10. In 

addition, they argue that the documents relating to Zhengying Quan, the woman in China 

who stated that she had been forcibly sterilized, were authentic on their face. See id. at 8. 

They submit that their new evidence is reliable and authentic and establishes that 

circumstances in China have changed. 

The Population & Family Planning Bureau document states in the first paragraph 

that Chen “has violated Section 2, Article 5 stipulated in the Regulations” of Fujian 

Province. A.R. 7. “She must pay a fine of RMB 31,005 to Family Planning Bureau at 

Gulou District in accordance with the provincial penalty rules, section 7, (36)(2) for overborn child.” Id. Paragraph 2 states in pertinent part that Chen‟s children are citizens of 

China even though they were born in the United States. See id. Paragraph 3 states that 

China‟s family planning policies will apply to Chinese nationals who engage in 

reproductive behavior overseas if those individuals do not have permanent residence 

status overseas or a visa stay for at least three years. See id. Paragraph 4 states that 

Chen‟s children do not fall into any “waiver exception,” and she thus is in violation of the 

Fujian Province Population and Family Planning Regulations. Id. Paragraph 5 states: 

“Chen, Bao Ying must be sterilized pursuant to the Fujian Province Population and 

Family Planning Regulations.” Id. A concluding unnumbered paragraph states: “It is 

hereby decreed!” Id. 

The Board rejected this document because it was not authenticated, and we 

conclude that the Board did not abuse its discretion in doing so. We have reviewed the 

document and agree that it is questionable on its face. The document is unsigned and its 

authors are not identified. See generally Matter of H-L-H-, 25 I. & N. Dec. at 214 (“The 
8

documents obtained for the respondent from the Hai Xin Street Resident Committee of 

Huang Qi Town and from the Tong Xin Villager Committee of An Kai Township, both 

of Lian Jiang County, are entitled to minimal weight. These documents, which were 

obtained for the purpose of the hearing, are unsigned and unauthenticated and fail to even 

identify the authors.”). Chen and Liu made no effort to authenticate this document either 

in accordance with 8 C.F.R. § 1287.6(b), or our more lenient precedent, see Leia, 393 

F.3d at 434. In addition, when submitting the additional evidence on remand, Chen and 

Liu did not ask the Board for a remand to the IJ for the purpose of authenticating their 

new evidence; they simply asked the Board to consider it without profferingany 

potentially authenticating information, or an explanation about why such information was 

unavailable. A.R. 5. The Board, in the exercise of its discretion, also properly 

considered Chen and Liu‟s history, as found by the IJ, of submitting fabricated and 

untruthful documents in concluding that the Population & Family Planning Bureau 

document required authentication in some manner.

The affidavit from Zhengying Quan states that she was forced to undergo 

sterilization on March 26, 2008, and she believes that Chen will be sterilized if she is sent 

back to China. The Board determined that the affidavit was insufficient to support an 

untimely motion to reopen based on changed conditions in China because it was not 

persuasive on its face. It did not contain any detailed information of the circumstances of 

Zhengying Quan‟s sterilization, nor was it corroborated by independent evidence, such as 

medical records or a sterilization certificate. We have reviewed Zhengying Quan‟s 

affidavit, A.R. 10, and conclude that the Board‟s determination of unreliability was 

neither arbitrary, irrational, or contrary to the law. See Guo, 386 F.3d at 562. In addition 
9

to the problems noted by the Board, the affidavit does not show that Quan and Chen are 

similarly situated in that Quan does not specifically state that any of her children were 

born in the United States, cf. Fen Gui Lin v. Holder, 588 F.3d 981, 989 (9th Cir. 2009) 

(finding it significant that the asylum applicants were unable to point to evidence of any 

person being forcibly sterilized on removal to China based on having two children born 

in the United States); Shao v. Mukasey, 546 F.3d 138, 164 (2d Cir. 2008) (same).

For the foregoing reasons, we will deny the petition for review