2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-27-2006

Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1763

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"Chen v. Atty Gen USA" (2006). 2006 Decisions. Paper 1206.

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NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 05-1763

XIU QIN(J) CHEN,

 Petitioner

 v.

ALBERTO R. GONZALES, ATTORNEY

GENERAL OF THE UNITED STATES

 

On Petition for Review of a Final Decision

of the Board of Immigration Appeals

BIA No. A75-809-672

Immigration Judge: William K. Strasser

 

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

March 28, 2006

 Before: RENDELL, SMITH, and BECKER, Circuit Judges

(Filed: April 27, 2006)

 

OPINION OF THE COURT

 

SMITH, Circuit Judge.

Xiu Qin Chen, a native and citizen of the People’s Republic of China, seeks

review of the Board of Immigration Appeals’ order denying her motion to reopen. We
Because the denial of the motion to reopen is a final order, see Sevoian v. 1

Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002), we may review it pursuant to 8 U.S.C. §

1252(a). 

2

will deny Chen’s petition for review and affirm the order of the BIA.1

Chen entered the United States on June 2, 1998. Because she did not have valid

travel documents at the time of application for admission, the former Immigration and

Naturalization Service (INS) served her with a Notice to Appear on June 3, 1998, alleging

a violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). At a hearing before an Immigration Judge

(IJ) on July 14, 2003, Chen conceded inadmissibility, but filed an application for asylum,

claiming that she had been persecuted in China because, as the third of four children in

her family, she was considered an “overbirth.” She explained that if she was returned to

China, she feared being imprisoned because she had not come to the United States

legally. The IJ denied Chen’s application for asylum, withholding of removal, and

protection under the Convention Against Torture. On September 16, 2004, the BIA

affirmed without opinion.

Chen subsequently filed a motion to reopen with the BIA based on the availability

of new evidence, specifically, a letter from the Villager’s Committee to her father which

indicated that her asylum application was an embarrassment to China and threatened her

with “severe punishment” if she did not withdraw it. The Board denied the motion,

concluding:
3

We have reviewed the document presented, and find it inherently unworthy

of belief as it is extremely implausible that her village committee would

know that the respondent was an asylum applicant in the United States. We

further note that no evidence was submitted that establishes that individuals

who apply for asylum in this country after they depart China illegally are

persecuted if they return.

App. at 2. Chen now appeals the BIA’s decision.

This Court reviews the BIA’s decision on a motion to reopen for abuse of

discretion, Sevoian v. Ashcroft, 290 F.3d 166, 170-71 (3d Cir. 2002), and we will not

disturb a discretionary decision by the Board unless it is “arbitrary, irrational, or contrary

to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).

The Code of Federal Regulations provides that “[a] motion to reopen proceedings

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

and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. §

1003.2(c)(1). The Supreme Court has recognized at least three grounds upon which the

Board can deny a motion to reopen: (1) failure to establish a prima facie case for the

relief sought; (2) failure to introduce previously unavailable, material evidence; and (3) a

determination that even if these requirements were satisfied, the movant would not be

entitled to the discretionary relief which he sought. INS v. Abudu, 485 U.S. 94, 104-05

(1988). In order to establish a prima facie case on a motion to reopen, the petitioner must

“produce objective evidence showing a ‘reasonable likelihood’ that he can establish [that

he is entitled to relief on the merits].” Sevoian, 290 F.3d at 175.

In this case, Chen submitted evidence that she claims was previously unavailable. 
4

The Board, however, found that evidence “inherently unworthy of belief” because it

considered it to be “extremely implausible that her village committee would know that

[Chen] was an asylum applicant in the United States.” We also note that, as the Attorney

General points out in his brief, Chen’s claim is suspect because the proffered letter was

not sent to her father until six years after she had left China. Additionally, her older sister

had left China, then later returned, and was not persecuted. The Board’s conclusion

reflects a determination that Chen has failed to establish a “reasonable likelihood” that

she will succeed on the merits. We cannot conclude that this determination is “arbitrary,

irrational, or contrary to law.” We will therefore affirm.