2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-16-2012 

# S h u C ai v .; Att or ne y Ge ne r al U nit ed S t a t es
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 12-2452

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" S h u C ai v .; Att or ney Ge ne r al U

nit e d S t a t e s " (2012). 2012 D e cisio n s . P a pe r 150. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2012/1501 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 2

- 2452

___________ SHU RONG CAI , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

____________________________________

On Peti tion for Review of an Order of the Board of Immigration Appeals ( A099

- 564

- 558 ) Immigration Judge: Honorable Frederic G. Leeds

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) November 15, 2012 Before: AMBRO, JOR DAN and BARRY , Circuit Judges (Opinion filed : November 16, 2012 )

___________

OPINION

___________ PER CURIAM

. Shu Rong Cai, a native a nd citizen of China, petitions for review of an order entered by the Board of Immigration Appeals (“BIA”) denying her motion to reopen2 removal proceeding s . We will deny Cai’s petition for review. In 2001, Cai entered the United States without inspection, and in 2005 she applied for asylum , withholding of removal , and Convention Against Torture protection

. Cai cla imed to fear persecution under China’s population control policies due to the birth of her two children in the United States

. Cai conceded removability, and an Immigration Judge (“IJ”) denied her applications for relief from removal after conducting an

ev identiary hearing. In October 2008, the BIA dismissed Cai’s appeal. This Court denied Ca i ’s petition for review. Shu Rong Cai v. Att’y Gen.

In September 2011, Cai filed a motion to reopen . She claim ed that she became a practicing Catholic in 2011, that conditions for Catholics in China ha ve worsened since her hearing before the IJ , and that she w ould likely face persecution on account of her religious beliefs. T he BIA denied the motion to reopen as untimely filed , and it concluded that Cai failed to submit evidence indicating that she would face persecution in China or that the conditions there have materially changed since her 2007 hearing

. Cai timely filed this petition for review

. , 356 F. App’x 593 (3d Cir. 2009)

.

We have jurisdiction under 8 U. S.C. § 1252(a). We review the BIA’s denial of a motion to reopen for abuse of discretion. Luntungan v. Att ’ y Gen. , 449 F.3d 551, 555 (3d Cir. 2006) (citing Caushi v. Att’y Gen. 436 F.3d 220, 225 (3d Cir. 2006)

. “ We will not reverse the BIA ’ s discretiona ry rulings ‘ unless they are found to be arbitrary, irrational, or contrary to law. ’ ” Khan v. Att ’y Gen. , 691 F.3d 488, 495 (3d Cir. 2012)3 (quotin g Jian Lian Guo v. Ashcroft Cai does not dispute the untimeliness of her m otion to reopen, which had to be filed within ninety days of the final administrative removal order . 8 U.S.C. § 1229a(c)(7)(C)(i). Instead, Cai invokes the changed country conditions exception , which provides that t he ninety

- day period is inapplicable wh e re the movant seeks reopen ing based on evidence of “changed country conditions arising in the country of nationality

... if such evidence is material and was not available and w ould not have been discovered or presented at the previous proceeding .” 8 U.S.C . § 1229a(c)(7)(C)(ii). , 386 F.3d 556, 562 (3d Cir. 2004)

.

Cai supported her motion to reopen with the following documents: her own affidavit; a n ew asylum application ; birth and baptismal certificate s; a letter from her church in the U.S.; photographs of her church activities; a Village Committee notice ; a n affidavit from the wife of Cai’s cousin in China; a 2007 State Department report ; and other “background” materials. Cai contends that th is evidence established her prima facie eligibility for asylum based on a fear of future persecuti on in China due to her newly adopted religion. We discern no abuse of discretion in the BIA’s decision to reject Cai’s evidence as insufficient to warrant reopening

. The BIA observed that Cai’s own affidavit “is speculative, not based, in part, on
pers onal knowledge, and does not demonstrate that [Cai]’s possible treatment in China, including arrest, would amount to persecution.” A.R. at 3

- 4. Cai concedes that her

a ssertions are based on “facts that she has never directly experienced,” Petitioner’s Br . at 14, but she argues that her “only source of information is based on what she was told by4 her family members in China , ” i d.

Cai’s professed fear of persecution derives mainly from the Village Committee notice and the affidavit prepared by her cousin ’s wife

. T he purported n otice from the

“ Changle City Tantou Town Yuan Dai Village Committee ” indicates that Chinese offici als intercepted mail that Cai had sent to the wife of her cousin, and in light of criticism that Cai expressed for China’s policy toward non

- governmental Catholic churches, the Village Committee ordered the wife of Cai’s cousin “to urge Cai

... to immediatel y stop her reactionary conduct of inciting Catholics in China to complain against the Chinese government’s current policy on religion and to return to China to accept stringent punishment from the government.” A.R. at 96. Absent compliance, the Village C ommittee added, Cai “would receive severe punishment and be imprisoned.” Whether or not Cai’s assertions are speculative , she failed to make a prima facie showing that she would face persecution in Ch ina.

Id. Similarly, the unsworn “affidavit” from the wife of Cai’s cousin , who claims to have been visited by village officials, asserts that Cai “ would definitely be arrested, sentence d, imprisoned and brutally perse cuted by the Chinese government.” Id.
T he BIA reasonably concluded that these documents

– with their vague references to arrest, punishment , and imprisonment

– d id not warrant reopening given the absence of evidence suggesting that Cai would face treatment rising to the level of persecution. at 95.

See Jarbough v. Att’y Gen. , 483 F.3d 184, 191 (3d Cir. 2007) (explaining that “[p] ersecution is an extreme concept that does not include every sort of treatment our society rega rds as offensive ,” and that “[a] busive treatment and harassment, while always deplorable, may5 not rise to the level of persecution ”) ( internal citation and quotation marks omitted) ; see also Pllumi v. Att ’y Gen. , 642 F.3d 155, 161 (3d Cir. 2011) ( “ The burd en of proof on a motion to reopen is on the alien to establish eligibility for the requested relief. ”) (citing En Hui Huang v. Att’y Gen. Furthermore, t he record supports the BIA’s conclusion that C ai’s “ evidence does not indicate that conditions for members of unregistered Catholic churches in China have worsened or otherwise materially changed since [Cai]’s previous hea r i ng in 2007. ” A.R.
at 4. Cai relied primarily upon a State Department report issued in 2007, the same year as her hearing before the IJ . T hat report does not reflect a change in conditions in China post

- dat ing th e hearing , and Cai offer s no argument at all on this appeal to question the BIA’s finding regarding the absence of a mat erial change in conditions in China

. 620 F.3d 372, 389 (3d Cir. 2010); 8 C.F.R. § 1003.2(c)).

1
We have considered Cai ’s remaining contentions but conclude that they are without merit and warrant no separate discussion. Based on the foregoing, we will deny the petition for review.

1 Although the BIA did n ot reach nor rely on this issue, we note that our intervening precedent indicates that Cai’s decision to begin practicing a new religion after she initially was denied relief from removal constitutes a change in her personal circumstances in the United Sta tes, which on its own is insufficient to establish changed country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C)(ii). See Khan v. Attorney General , 691 F.3d 488, 497

– 98 (3d Cir. 2012) (holding the “choice to engage in [certain] political activities after being ordered deported does not support application of the changed country conditions exception”)

. Our holding in Khan was consistent with earlier decisions that applied the same reasoning to changes in other personal circumstances. See, e.g., Liu v. Att’y Gen., 555 F.3d 145, 150

– 51 (3d Cir. 2009) (birth of children); Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006) (marriage status). Simply put, this type of “self

- induced change in personal circumstances cannot suffice.” Wang v. BIA, 437 F. 3d 270, 274 (2d Cir. 2006).”