FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QING LI CHEN, 

Petitioner, No. 06-71430

v. Agency No. 

M A76-641-064 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 8, 2007—Seattle, Washington

Filed May 2, 2008

Before: William C. Canby, Jr., Susan P. Graber, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Canby

4859
COUNSEL

Joshua E. Bardavid and Patricia S. Mann, Law Offices of

Theodore N. Cox, New York, New York, for the petitioner.

Anh-Thu P. Mai and Lyle D. Jentzer, Department of Justice,

Civil Division, Office of Immigration Litigation, Washington,

D.C., for the respondent. 

OPINION

CANBY, Circuit Judge: 

Petitioner Qing Li Chen is a citizen of China who is subject

to a final order of removal. She seeks to file an application for

CHEN v. MUKASEY 4861
asylum based on a change in her personal circumstances. The

Board of Immigration Appeals (“BIA”) held that such an

application could be presented only as part of a motion to

reopen her removal proceedings. The BIA then denied the

motion to reopen because it exceeded the limits on time and

number for such motions. Chen now petitions for review of

that denial. 

Chen’s petition presents a question of the proper interpretation of two arguably conflicting immigration statutes and their

implementing regulations. One statute and its regulation provide that an alien who is subject to a final order of removal

is limited to one motion to reopen the removal proceedings,

which motion must be filed within 90 days of the entry of a

final order of removal.1 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8

C.F.R. § 1003.2(c)(2). An exception to this time limit provides that there is no time limit for motions to reopen for asylum applications based on “changed country conditions

arising in the country of nationality or the country to which

removal has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii).2

Chen does not assert a change in country conditions. 

Another statute and its regulation provide that aliens who

apply for asylum must do so within one year after arrival in

the United States, and must show that they have not previously applied for and been denied asylum. 8 U.S.C.

§ 1158(a)(2)(B), (C); 8 C.F.R. § 208.4(a)(2). An exception to

the number and time limits is provided, however, for aliens

who can demonstrate “the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum.”

8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)(i)(B). Chen

alleges a change in her personal circumstances that qualifies

her for this exception. 

1The statute contains an exception for battered spouses and children,

which is not relevant to our case. See 8 U.S.C. § 1229a(c)(7)(C)(iv). 

2A regulation extends this exception to include freedom from the limits

on number, and not just time, for such motions to reopen. See 8 C.F.R.

§ 1003.2(c)(3). 

4862 CHEN v. MUKASEY
The question presented is whether the latter, broader exception permits Chen not only to avoid the general number and

time limits of the asylum statute, § 1158, but also to avoid the

number and time limits of the statute, § 1229a(c)(7), governing the reopening of removal proceedings by an alien subject

to a final order of removal. In a recently published decision

involving a different applicant, the BIA held that the answer

to this question is “no.” In re C-W-L-, 24 I. & N. Dec. 346

(B.I.A. 2007). We conclude that the BIA’s interpretation of

the two statutes, as they affect each other, is a reasonable one,

and we defer to that interpretation. See Chevron U.S.A. Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).

We accordingly hold that the BIA did not err in ruling that

Chen’s motion to reopen is barred by the number and time

limitations of § 1229a(c)(7), and we deny her petition for

review.3

FACTUAL AND PROCEDURAL BACKGROUND

Chen entered the United States on October 9, 1999. She

was apprehended for presenting a counterfeit passport and,

after being released on a $7,500 bond, she moved to New

York City. An exclusion hearing was held and Chen failed to

appear. She was ordered removed in absentia on November

24, 1999. A warrant issued for her removal, and she failed to

comply with INS instructions for departure. She moved to

reopen the removal proceedings, but her motion was denied.

She filed an appeal of that denial, which the BIA rejected as

untimely. 

In 2001, Chen married Yan Zheng in New York City and

the couple had their first child in 2002. Chen filed a second

motion to reopen the removal proceedings in January 2004,

and the immigration judge denied this motion as barred by the

time and number limits of 8 C.F.R. § 1003.2(c)(2). The BIA

affirmed. 

3We have jurisdiction pursuant to 8 U.S.C. § 1252. 

CHEN v. MUKASEY 4863
Over a year later, in 2005, Chen had her second child. She

then filed a “Motion to File Successive Asylum Application

Pursuant to 8 C.F.R. § 208.4,” alleging that her changed personal circumstances would result in the forced sterilization of

her or her husband if they returned to China because Chinese

population control policy prohibits this second child. The BIA

denied this motion, finding that it was time- and numberbarred as a motion to reopen under 8 C.F.R. § 1003.2(c)(2).

Chen petitioned this court for review. 

DISCUSSION

Under the Real ID Act, Pub L. No. 109-13, § 106(a), 119

Stat. 231, 310 (2005), this court may review the BIA’s interpretation of the “changed circumstances” exception to the

asylum statute. Ramadan v. Gonzales, 479 F.3d 646, 649-50

(9th Cir. 2007) (per curiam). As described above, Chen’s ability to reopen the proceedings depends on two statutory provisions (and their accompanying regulations) that appear to

conflict. Nothing in these statutes and regulations explicitly

indicates whether a successive and untimely asylum application by an alien under an order of removal is subject to the

limitations on motions to reopen. As we stated above, however, a recently published opinion of the BIA speaks to

Chen’s case. 

[1] In In re C-W-L-, 24 I. & N. Dec. at 350-51, a threejudge panel of the BIA held that a successive and untimely

asylum application filed by an alien under a final order of

removal must satisfy the requirements for a motion to reopen.

A published decision issued by a three-judge panel of the BIA

has precedential effect and is entitled to deference under

Chevron, so long as: (1) the underlying statute is ambiguous,

and (2) the BIA decision itself is not arbitrary, capricious, or

contrary to law. Garcia-Quintero v. Gonzales, 455 F.3d 1006,

1012-14 (9th Cir. 2006). 

[2] Congress has not unambiguously expressed its intent

with regard to the question at hand. The asylum provision, 8

4864 CHEN v. MUKASEY
U.S.C. § 1158(a)(2)(D), allows consideration of a successive

and untimely asylum application in cases of “changed circumstances.” The provision governing motions to reopen states

more narrowly, “There is no time limit on the filing of a

motion to reopen if the basis of the motion is . . . changed

country conditions arising in the country of nationality or the

country to which removal has been ordered . . . .” 8 U.S.C.

§ 1229a(c)(7)(C)(ii). Although neither of these provisions is

ambiguous taken individually, we consider them in light of

each other. 

In making the threshold determination under

Chevron, a reviewing court should not confine itself

to examining a particular statutory provision in isolation. Rather, the meaning—or ambiguity—of certain

words or phrases may only become evident when

placed in context. It is a fundamental canon of statutory construction that the words of a statute must be

read in their context and with a view to their place

in the overall statutory scheme.

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127

S. Ct. 2518, 2534 (2007) (internal quotation marks, alterations

and citations omitted). Nowhere does the statute indicate

whether a successive and untimely asylum application after

the entry of a removal order requires a motion to reopen.

Because the statute is silent on the interaction between the

two provisions at issue, we must defer to the agency as long

as its interpretation is reasonable. See Chevron, 467 U.S. at

843. 

[3] We conclude that the BIA’s interpretation is reasonable.

An alien subject to a final order of deportation must file any

application for asylum with the BIA. See 8 C.F.R.

§ 208.4(b)(4). The issue for the BIA in In re C-W-L-, as in

Chen’s case, was whether to entertain the application as a

free-standing claim for asylum subject to the more liberal

exception in § 1158(a)(2)(D), without regard to the limits on

CHEN v. MUKASEY 4865
motions to reopen under § 1229a(c)(7). It was reasonable for

the BIA to conclude that to permit such an avoidance of the

time and number limits on motions to reopen would make

nonsense of the more restrictive exception in § 1229a(c)(7).

The only exception to the number and time limits for reopening provided by Congress was for asylum claims based on

changed country conditions. The BIA stated that the narrow

scope of this limitation would be entirely frustrated if an alien

subject to removal who could not qualify for this exception

were free to seek asylum under § 1158(a)(2)(D). In re

C-W-L-, 24 I. & N. Dec. at 351. Accordingly, the BIA held

that such an asylum application can be made only in connection with a motion to reopen, subject to the limitations of

§ 1229a(c)(7). Id. This interpretation of the reach of the two

statutes was reasonable, and we defer to it. 

Chen contends that the BIA’s interpretation is unreasonable

because it renders the broader changed conditions exception

for asylum applications in § 1158 a nullity. That argument

overstates the case. Section 1158 continues to apply to aliens

seeking asylum who have not been adjudicated to be subject

to removal. As the BIA noted in In re C-W-L-, an asylum

applicant can still invoke this broader exception, albeit “principally at an earlier stage of proceedings than [ ] the 90-day

reopening provisions.” 24 I. & N. Dec. at 353. Although the

broader exception to the number and time limits in the asylum

provision may not assist aliens in Chen’s position, it cannot

be said that it is without effect in the statutory scheme under

the BIA’s interpretation. 

[4] Nor are we persuaded that a regulatory comment cited

by Chen mandates a different result. This comment, published

by the Department of Justice’s Executive Office for Immigration Review, accompanied a proposed rule change in 1997. 62

Fed. Reg. 10,312, 10,316 (Mar. 6, 1997). It states that the

Department of Justice (“DOJ”) decided to drop the regulatory

requirement that a successive asylum petition based on

changed circumstances be raised through a motion to reopen.

4866 CHEN v. MUKASEY
Id. We agree with the Seventh Circuit that the legal significance of this language is not entirely clear, and it does not

trump the legal effect of the BIA’s interpretation of the two

statutes. See Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th

Cir. 2007). Moreover, as the BIA’s decision points out, the

DOJ’s failure to require motions to reopen in every case does

not necessarily mean that a motion to reopen is not required

when the alien is subject to a final order of deportation. In re

C-W-L-, 24 I. & N. Dec. at 353. It is not inconsistent with the

DOJ’s comment to apply the reopening limitations independently of the asylum statute so that they govern an alien such

as Chen under a final order of removal. See id.

The plain language of the statute further supports this

approach because the changed conditions exception for asylum applications is permissive on its face: “An application for

asylum of an alien may be considered . . . .” 8 U.S.C.

§ 1158(a)(2)(D) (emphasis added); see United States v. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ when used

in a statute, usually implies some degree of discretion.”). The

BIA’s interpretation of the statute takes Congress at its word,

that it may consider such applications but need not do so in

every case. The BIA has struck a balance between considering

such applications and maintaining procedural rules that ensure

the interest in adjudicative finality. Its interpretation harmonizes the competing exceptions. Its interpretation of the statutes and regulations is reasonable, and its decision is not

arbitrary, capricious, or contrary to law. 

We acknowledge language in a handful of decisions suggesting that aliens in Chen’s position may seek asylum without a motion to reopen. See He v. Gonzales, 501 F.3d 1128,

1133 n.9 (9th Cir. 2007); Xiao Xing Ni v. Gonzales, 494 F.3d

260, 273 (2d Cir. 2007) (Calabresi, J., concurring); Haddad

v. Gonzales, 437 F.3d 515, 518-19 (6th Cir. 2006); Guan v.

BIA, 345 F.3d 47, 49 (2d Cir. 2003) (per curiam). In He, after

holding that changed personal circumstances would not support a successive and untimely motion to reopen removal proCHEN v. MUKASEY 4867
ceedings, we stated in a footnote that the Hes could

nevertheless file an application for asylum apart from the

removal proceedings under the asylum statute. See He, 501

F.3d at 1133 n.9. We acknowledged, however, that the issue

was not before us. Id. Because the interplay between the two

statutory provisions was not “presented for review” in He, we

are not bound by He’s offhand observation. See Barapind v.

Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per

curiam). Similarly, the Second and Sixth Circuits made their

suggestions in dicta. In deferring here to the BIA’s statutory

interpretation, we reject these dicta. 

Two other circuits have published opinions squarely

addressing the question presented here, and both reach the

conclusion that the BIA reached in In re C-W-L-. See Cheng

Chen, 498 F.3d at 760-61; Zheng v. Mukasey, 509 F.3d 869,

872 (8th Cir. 2007). “Deference is especially appropriate in

the context of immigration law, where national uniformity is

paramount.” Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th

Cir. 2006). National uniformity in the immigration context

also counsels deference where, as here, a failure to defer

would cause a split of authority among the circuits. 

[5] Chen’s final contention is that her removal will violate

“the U.N. Protocol Relating to the Status of Refugees, the

Convention Against Torture, and [her] Due Process rights.”

She has not established her right to any relief that may be

available under any of these provisions, however, and she has

failed to show how any of them is violated by the application

of reasonable procedural requirements for the adjudication of

her claims. See Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir.

2001) (rejecting claim that Convention Against Torture overcomes time limits for assertion of claims in deportation proceedings); Logan v. Zimmerman Brush Co., 455 U.S. 422,

437 (1982) (stating that “the State certainly accords due process when it terminates a claim for failure to comply with a

reasonable procedural or evidentiary rule”). 

4868 CHEN v. MUKASEY
CONCLUSION

The BIA’s interpretation of §§ 1158(a)(2)(D) and

1229a(c)(7), and their implementing regulations, in In re CW-L- was reasonable, and we defer to it in accord with Chevron, 467 U.S. at 842-45. Applying the same interpretation to

Chen, who is subject to a final order of removal, the BIA

properly concluded that Chen could apply for asylum only in

connection with a motion to reopen, subject to the time and

number limitations of § 1229a(c)(7). Because Chen exceeded

those limitations and did not claim to qualify for the country

conditions exception to them, her motion was properly

denied. Chen’s remaining contentions are without merit. 

PETITION FOR REVIEW DENIED.

CHEN v. MUKASEY 4869