2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-27-2010

He Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2849

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2849

___________

HE CHEN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. 077-281-659)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 14, 2010

Before: MCKEE, Chief Judge, HARDIMAN and COWEN, Circuit Judges

(Opinion filed: July 27, 2010 )

___________

OPINION

___________

PER CURIAM

Petitioner He Chen seeks review of a final order of removal of the Board of

Immigration Appeals (“BIA”) denying her motion to reopen her deportation proceedings. 

We will deny the petition for review.
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I.

Chen, a native and citizen of China, entered the United States in November 1999. 

The following month, Chen was served with a Notice to Appear, charging her as

removable under INA § 212(a)(7)(A)(i)(I) for not possessing or presenting the proper

documentation for admission. On March 2, 2000, Chen appeared at her immigration

hearing and indicated, through counsel, that she wanted to apply for asylum, withholding

of removal, and protection from removal under the Convention Against Torture (“CAT”). 

During the hearing, Chen was served with written notice that her next hearing was to be

held on May 17, 2000. On May 17 , after Chen failed to appear at her hearing, the th

Immigration Judge (“IJ”) ordered her removal to China in absentia.

In March 2008, Chen filed with the IJ a motion to reopen her proceedings, seeking

to reapply for asylum, withholding of removal, and protection under the CAT. However,

because the motion to reopen was untimely, Chen sought to be relieved from the time

restriction by alleging changed conditions in China since she was ordered removed in

2000. See 8 C.F.R. § 1003.23(b)(4)(i). Specifically, Chen claimed that because she now

has five children who were born after she had been ordered removed, she is now in

violation of China’s one-child family planning policy. Additionally, because she recently

converted to Christianity, she believes she would be subject to persecution based on her

religious beliefs.

After reviewing Chen’s motion to reopen, the IJ denied the motion. First, the IJ 
3

noted that there were no “exceptional circumstances” which prevented Chen from

appearing at the May 2000 hearing. See 8 C.F.R. § 1003.23(b)(4)(ii). The IJ further

found that Chen was primarily seeking relief based on a change in her personal

circumstances and that she failed to demonstrate changed conditions in China either

regarding the country’s current enforcement of its family planning policy or its current

treatment of Christians, as required by 8 C.F.R. § 1003.23(b)(4)(i). Chen filed a timely

appeal to the BIA and, in a May 2009 decision, the BIA determined that the IJ’s ruling

was proper. Chen filed a timely petition for review in this Court.

II.

Although we have jurisdiction to review the BIA’s order denying Chen’s motion to

reopen, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003), the scope of our

review is quite limited. INS v. Doherty, 502 U.S. 314, 323 (1992). Under the

regulations, the BIA “has discretion to deny a motion to reopen even if the party moving

has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court

has stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94,

110 (1988). Accordingly, we review the BIA’s denial of a motion to reopen for abuse of

discretion with “broad deference” to its decision. Ezeagwuna, 325 F.3d at 409. Thus, in

order to succeed on the petition for review, Chen must ultimately show that the BIA’s

discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20

F.3d 580, 582 (3d Cir. 1994) (quotation omitted). Chen has failed to make such a
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showing.

III.

Chen does not dispute that she filed an untimely motion to reopen, having filed it

nearly eight years after the IJ issued a final order of removal. However, she asserts that

the BIA erred in finding that she presented insufficient evidence to establish changed

circumstances in China, as required by 8 C.F.R. § 1003.2(c)(3)(ii), in order to avoid

application of the time restriction.

In her brief on appeal, Chen first argues that the BIA abused its discretion by

denying her motion to reopen “in light of the record evidence concerning the impact of

her having five United States Citizen children.” (Pet. Br. at 11.) Next, Chen argues that

this Court should remand her case to the BIA “for consideration of the documents

contained in Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008),” or alternatively “retain

jurisdiction so as to permit [her] to file a successive motion to reopen based on the

evidence in Lin . . . [because she] has five United States citizen children and public policy

favors family unity.” (Id. at 12.) Lastly, she argues that this Court should remand her

case to the BIA because the Board failed to consider three of its own unpublished

opinions granting motions to reopen “in cases where natives and citizens of the People’s

Republic of China had converted to Christianity in the United States.” (Id.)

As an initial matter, we find that the BIA correctly determined that Chen’s

changed personal circumstance, i.e., the birth of her children, is distinct from changed
 Chen also argues that we should remand her case to the BIA because “evidence is 1

becoming more available” and a remand would serve the “interests of justice.” (See Pet.

Br. at 21.) But this evidence, which she does not identify, is also not a part of the record. 

Thus, to the extent Chen wishes to present new evidence to the BIA of changed country

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county conditions. See Liu v. Attorney General, 555 F.3d 145, 150-51 (3d Cir. 2009); see

also Wang v. Board of Immigration Appeals, 437 F.3d 270, 273 (2d Cir. 2006). Relief is

appropriately denied “where a petitioner is seeking to reopen [her] asylum case due to

circumstances entirely of [her] own making after being ordered to leave the United

States.” Wang, 437 F.3d at 274.

We further find that the BIA did not abuse its discretion in finding that Chen failed

to demonstrate the existence of a relevant change in the family planning policy in her

home province since her administrative hearing in May 2000. (A.R. 4-5.) Chen asserts

that the Seventh Circuit’s ruling in Lin, 532 F.3d at 597, confirms that country conditions

have worsened for women who have violated China’s “one child” policy. However, she

admits that “the record evidence in this case does not include that contained in Lin

concerning the particularized evidence.” (Pet. Br. at 21.)

Chen does not argue that the BIA “fail[ed] to discuss most of the evidentiary

record,” see Zheng v. Att’y Gen., 549 F.3d 260, 269 (3d Cir. 2008). Instead, she appears

to urge this Court to consider evidence outside of the administrative record, such as those

documents considered by the Second Circuit in Lin. However, we have previously held it

impermissible to take judicial notice of evidence that is not a part of the administrative

record. See Berishaj v. Ashroft, 378 F.3d 314, 330 (3d Cir. 2004). Accordingly, we 1
conditions, she should do so in a motion to reopen. Furthermore, although Chen urges the

Court throughout her brief to remand her case based on equitable considerations or,

alternatively, to “retain jurisdiction,” we find no basis for doing so.

6

reject Chen’s argument that her case should be remanded to the BIA so that it may

consider the evidence set forth in Lin.

We further conclude that the BIA did not err in finding that, based on the materials

Chen submitted with her motion to reopen, she was unable to establish a material change

in the enforcement of the China’s family planning policy. First, the BIA correctly noted

that at least one of the documents offered by Chen pre-dated her administrative hearing

and thus did not qualify as evidence that was not available, and could not have been

discovered or presented in May 2000, 8 C.F.R. § 1003. 2(c)(3)(ii). (A.R. 2.) Although

Chen included an affidavit with the motion, she did not claim to have any knowledge of

how officials in her home province are currently enforcing the family planning policy, nor

did she submit any affidavits from family members or friends who could verify that there

has been an increase in forcible sterilizations. (Id.)

Additionally, the BIA found the unauthenticated photocopies of an alleged notice

regarding the further carrying out of the family planning regulations and a written reply

from the Fujian Province Family Planning Commission were not specific to Chen’s

particular circumstances, nor did they contain “an indicia of reliability.” (Id.) Moreover,

the reply from the Fujian Province Family Planning Commission was written more than

five years ago, and the BIA found it failed to establish the current level of enforcement. 
 Although we recognized in Cruz v. Att’y Gen., 452 F.3d 240, 250 (3d Cir. 2006), that 2

agencies should not move away from their previous rulings without “cogent

explanations,” Chen does not discuss, either in her BIA appeal or in her brief before this

court, how the facts of her case mirror those present in the unpublished opinions she cites. 

She merely states that those cases present “similar facts.” (Pet. Br. at 8.) Because she

provides us with no further analysis, we are unable to conclude that the BIA’s denial of

her claim departs from its previous rulings.

7

(Id.) Based upon that analysis, we do not agree with Chen’s assertion that the BIA

abused its discretion by concluding that she failed to identify previously unavailable

evidence showing a material change in country conditions.

Chen also argues that the BIA improperly denied her motion to reopen based on a

change in China’s treatment of Christians since her administrative hearing in 2000. Chen

primarily argues that the BIA abused its discretion by failing to give adequate

consideration to three unpublished BIA decisions that she cited in her brief on appeal to

the BIA. (Pet. Br. at 21.)

The BIA’s unpublished decisions, however, are not binding authority and,

although the BIA may have granted an alien’s motion to reopen based on a claim of

religious persecution in China, those decisions are not precedent in future proceedings. 

See 8 C.F.R. § 1003.1(g) (noting the conditions, not present here, when a decision can

serve as precedent).

2

Chen also appears to argue that the BIA failed to adequately consider evidence of

changed conditions regarding the treatment of Christians which she submitted with her

motion to reopen. (Pet. Br. at 16.) Specifically, she alleges that the BIA failed to
8

consider an “Annual Report on the Persecution of Chinese House Churches by Province.” 

(Id.) However, a review of the BIA’s opinion shows that the Board cited and analyzed

that document specifically. (A.R. at 5.) Thus, the argument is without merit.

Having found no abuse of discretion on the part of the BIA in denying Chen’s

untimely motion to reopen, we will deny the petition for review.