2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-27-2015

Mei Chen v. Attorney General United States

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"Mei Chen v. Attorney General United States" (2015). 2015 Decisions. Paper 527.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 14-1931

_______________

MEI RONG CHEN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED 

STATES OF AMERICA, 

 Respondent

_______________

On Petition for Review of a Decision of the Board of Immigration Appeals

(BIA-1 No. A079-092-472)

Immigration Judge: Eugene Pugliese

_______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

May 21, 2015

Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges

(Filed: May 27, 2015)

_______________

OPINION

_______________

 

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
2

FUENTES, Circuit Judge:

Mei Rong Chen challenges the Board of Immigration Appeals’s denial of her 

motion to reopen decade-old removal proceedings. We will deny her petition for relief.

Chen is a Chinese national who was detained in 2001 by immigration authorities 

upon her unauthorized arrival in the United States. She thereafter sought asylum and 

withholding of removal on the basis of her alleged Falun Gong faith, but her application 

was denied. By way of explanation, the Immigration Judge noted “there [was] no proof 

that this woman knows much of anything about Falun Gong” and declared her 

“completely unpersuasive” application insufficient to carry her burden of proof. The 

Board denied Chen’s subsequent appeal. 

Chen remained in the country, and in February 2014 she filed the instant motion to 

reopen, which pointed to (1) her newfound Christian faith, which she contends would 

subject her to anti-Christian persecution in China; (2) her two American-born children, 

which she says will subject her to persecution under China’s population control policies; 

and (3) alleged intensification of anti-Christian bias in China in the past decade. 

The Board denied the motion to reopen as time-barred. The motion was 

presumptively untimely by many years, though “[t]here is no time limit on the filing of a 

motion to reopen if the basis of the motion . . . is based on changed country conditions 

arising in the country of nationality or the country to which removal has been ordered, if 

such evidence is material and was not available and would not have been discovered or 

presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C). In the Board’s view, 
3

Chen’s conversion to Christianity and her recent parentage constituted changes in her 

personal circumstances rather than changes in country conditions. Meanwhile, the Board 

found that population control and repression of religious minorities were longstanding 

attributes of Chinese policy that had not, in light of evidence submitted by Chen or 

otherwise, materially changed since Chen’s previous proceeding. The Board explained 

that “[m]ere allegations of and documents indicating a ‘continuation’ of repressive 

practices are not evidence of a change . . . [and] even a worsening recent trend over the 

last several years does not necessarily represent a material change when compared to the 

conditions that existed at the time of the merits hearing, particularly one that occurred so 

long ago.” Finally, irrespective of any change in country conditions that might lift the 90-

day time-bar, the Board determined Chen did not establish a likelihood of success on the 

merits. Chen’s allegations of “sporadic” and unauthorized punishments for violation of 

population control policies were, in the Board’s view, insufficient to establish a wellfounded fear of future persecution. See 8 C.F.R. § 1208.13(b). Nor did she show that any 

official campaign against religious activity was at a high level in her native Fujian 

Province.

On appeal, Chen disputes the Board’s determination that she failed to show 

material changes in religious repression and population control in her home province.

1

In 

 

1 Because we uphold the Board’s determination that Chen failed to show changed country 

conditions, we need not address whether a petitioner is entitled to bring an otherwise 

untimely motion to reopen based on repressive policies that were inapplicable to the 

petitioner at the original proceedings. Compare Chandra v. Holder, 751 F.3d 1034, 1037 

(9th Cir. 2014) (“[I]f there is sufficient evidence of changed conditions in the receiving 
4

chief, she points to a letter from her father and her and her husband’s affidavits. These 

aver that Chen’s mother has been jailed, beaten, and monitored for her Christianity; that 

the Chinese government is aware that Chen, too, is a Christian; and that, because of the 

foregoing, Chen is likely to be persecuted for her Christianity and moreover sterilized 

given she has more than one child. Chen also points to a series of news articles describing 

crackdowns on religious practice in her home province. She makes a conclusory 

contention that “[t]his worsening trend represents a material change when compared to 

the conditions that existed at the time of the merits hearing [] thirteen years ago,” but she 

provides no support.

“We review the [Board]’s denial of a motion to reopen for abuse of discretion,

and review its underlying factual conclusions related to the motion for substantial 

evidence.” Caushi v. Att’y Gen. of U.S., 436 F.3d 220, 225-26 (3d Cir. 2006) (internal 

citations omitted). We may only reverse if the denial was “arbitrary, irrational, or contrary 

to law.” Id. at 226.

Chen’s position is unavailing under this strict standard. We cannot conclude that 

the Board erred in determining the relevant policies did not change between 2002 and 

2014, for Chen presents no information that would allow us to compare persecution of 

 

country, there is nothing in the plain language of the regulation that prevents a petitioner 

from referring to his personal circumstances to establish the materiality of that 

evidence.”) with Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir. 2007) (“It makes 

no sense to allow an alien who manages to elude capture by the immigration authorities 

for years after he has been ordered to leave the country, and has exhausted all his legal 

remedies against removal, to use this interval of unauthorized presence in the United 

States to manufacture a case for asylum.”). 
5

Christians in 2002 and 2014, let alone enough to conclude that persecution is materially 

worse now, and in ways that would be relevant to her. As to the prospect that Chen will 

be sterilized if she returns to China, we have held that a native of Chen’s home province 

had no well-founded fear of future persecution based on having two children while 

resident in the United States. See Ying Chen v. Att’y Gen. of U.S., 676 F.3d 112, 116 (3d 

Cir. 2011). Chen provides no reason to believe that China’s population control policies 

are different now than when we decided Ying Chen. 

As we lack a basis to conclude the Board’s decision was “arbitrary, irrational, or 

contrary to law,” Caushi, 436 F.3d at 226, we will deny the petition.