NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-1859

_____________

XI CHEN,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA,

Respondent

_____________

On Petition for Review of an Order

of the Board of Immigration Appeals

(Agency No. A076-968-325)

Immigration Judge: Neil P. Miller

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

January 12, 2016

Before: McKEE, Chief Judge, AMBRO and SCIRICA, Circuit Judges.

(Filed: January 25, 2016)

_________

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

McKEE, Chief Judge.

Petitioner Xi Chen, a native of China, filed a petition for review of the March 9, 

2015 decision of the Board of Immigration Appeals denying his motion to reopen. For 

the reasons that follow, we will deny the petition for review.

I.

Because we write primarily for the parties who are familiar with this case, we need 

not recite the facts or procedural history in detail.1It is sufficient to note the following: 

Chen entered the United States without inspection in 1998 and was issued an order of 

removal pursuant to I.N.A. § 212(a)(6)(A)(i). In the ensuing years, Chen filed multiple 

untimely motions to reopen his requests for asylum, withholding of removal, and 

protection under the Convention Against Torture. He based these motions on a fear of 

persecution for his sexual orientation and under China’s one-child policy. The 

Immigration Judge and the BIA denied his untimely motions. 

At issue here is Chen’s September 5, 2014 motion to reopen based on changed 

country conditions. He alleged China has enhanced its enforcement of its one-child 

policy since his initial 1998 hearing, and he fears persecution because he has three 

children. The BIA concluded that Chen had not met his burden of establishing a material 

 

1 The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.2. We have jurisdiction under 

8 U.S.C. § 1252. 
3

change in country conditions, and denied his request to reopen.

2

 Chen subsequently 

sought judicial review.

II.

We review the denial of a motion to reopen for abuse of discretion.3 The BIA

abuses its discretion if it acts in a manner that is “arbitrary, irrational, or contrary to 

law.”4 Although this standard of review is deferential, we must be satisfied that the BIA

“meaningfully considered” the evidence presented by the petitioner.5 Thus, “the BIA 

should provide us with more than cursory, summary or conclusory statements, so that we 

are able to discern its reasons for declining to afford relief to a petitioner.”6

III.

As a threshold matter, a motion to reopen must generally be filed with the BIA no 

later than 90 days after the entry of the final administrative decision.7 None of Chen’s 

numerous motions to reopen complied with this timeline. However, this deadline does 

not apply to motions based on “changed country conditions arising in the country of 

nationality . . . if such evidence is material and was not available and would not have 

been discovered or presented at the previous proceeding.”8

 

2

J.A. 5.

3 See Pllumi v. Att’y Gen., 642 F.3d 155, 158 (3d Cir. 2011).

4 Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (quoting Sevoian v. Ashcroft, 290 

F.3d 166, 174 (3d Cir. 2002)) (internal quotation marks omitted). 

5 Zhu v. Att’y Gen., 744 F.3d 268, 272 (3d Cir. 2014).

6 Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (citation omitted). 

7 8 U.S.C. § 1229a(c)(7)(C)(i).

8 8 U.S.C. § 1229a(c)(7)(C)(ii).
4

Considering the record as a whole, the BIA found that Chen did not overcome his

untimeliness by establishing a material change in country conditions.

9

 Although the BIA

acknowledged that, since Chen’s hearing in 1998, he had become the parent of three 

United States citizen children, it found that, to the extent Chen based his motion on a 

change in his personal circumstances, the motion did not fall within 8 C.F.R. 

§ 1003.2(c)(3)(ii), which requires a change in country conditions.

The BIA also rejected the evidence Chen claimed demonstrates that increasingly 

strict enforcement of China’s one-child policy constitutes changed country conditions.

For instance, the BIA found that Chen had submitted evidence of old family planning 

campaigns, spanning 2007 to 2009, and “there is no indication that any campaigns are

currently taking place in the respondent’s home locale.”10 In any event, the BIA

concluded Chen’s motion failed because there is no evidence the campaigns represent a 

material change, as opposed to a recurrent event that began before Chen’s hearing.

IV.

In reviewing these conclusions, we are mindful that the BIA’s findings are entitled 

to substantial deference. Accordingly, we find that the record does not compel reversal 

of the BIA’s determination that Chen failed to carry his burden of proof. 

 

9 Even if the petitioner presents sufficient evidence of changed country conditions, the 

BIA may still deny the motion to reopen if the petitioner fails to establish a prima facie 

case for the relief sought. See Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007). 

10 J.A. 5.
5

Critically, the BIA provided us with sufficient reasoning for us to discern “why the 

record supports its conclusion.”11 The BIA explained why it did not credit specific pieces 

of evidence, noting either unreliability or lack of the comparator necessary to establish a 

“change.”12 Our review of this reasoning reveals the BIA did not abuse its discretion in 

finding Chen’s submissions fell short of a change in conditions. Although Chen’s 

evidence tends to show the harshness of China’s one-child policy, the BIA’s 

determination that Chen did not show that this severity constituted a change from 

conditions during his 1998 hearing is a viable interpretation of the record. The BIA

likewise did not act “contrary to law” in finding that the birth of Chen’s children was a 

personal change in circumstances, not country conditions.13

Juxtaposition of Chen’s objections with the BIA’s reasoning further illustrates that 

Chen’s protests are insufficient to overcome the substantial deference we owe the BIA’s 

decision. Chen appeals on two primary grounds. First, he claims the BIA deviated from 

established policy when it discounted evidence because of its age, even though it was 

previously unavailable. This assertion is unavailing because the BIA reasonably 

concluded that the evidence reflected then-existing circumstances. The BIA ultimately 

was not persuaded because the evidence did not reflect a requisite change. Indeed, some 

of this evidence describes the strict policies as “continue[d]” efforts.

14

 This undercuts 

Chen’s claim they are departures from prior policy, and thus show a change. 

 

11 Khan v. Att’y Gen., 691 F.3d 488, 499 (3d Cir. 2012). 

12 J.A. 5-6.

13 See Liu v. Att’y Gen., 555 F.3d 145, 151 (3d Cir.2009).

14 J.A. 147.
6

Second, Chen contends that his evidence that Fujian, his home province in China, 

mandates sterilization for parents of two or more children regardless of the children’s 

place of birth constitutes a change warranting reopening. Although Chen produced 

evidence indicating that such a policy has existed in some areas, the BIA did not abuse its

discretion in discounting it in the face of no strong evidence by Chen that what is now 

before us constitutes a change in country conditions. 

V.

For the reasons set forth above, we will deny the petition for review.

15

 

15 Because the BIA did not abuse its discretion in finding no material change in country 

conditions, we need not reach the separate question of whether Chen established a prima 

facie case for relief.