NOT PRECEDENTIAL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

.

( F iled: January 25, 2016 )

________ _
OPINION *

________ _

* This disposition is not an opinion of the full c ourt 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 h is motion to reopen. For

the reas ons 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. 1 It is sufficient to note the following:

Chen entered the U nited 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, withh olding 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 burde n 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. § 12 52.3

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 t hat the BIA
“meaningfully consider ed ” the evidence presented by the petitioner. 5 Thus, “the BIA
should provide us with m ore 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.

A s a threshold matter, a motion to reopen must g enerally be filed with the BIA no
later than 90 days afte r the entry of th e fin al administrative decision. 7 None of Chen ’s
numerous motions to reopen complied with this timeline

. However, t his deadline does
not apply to motions based on “changed country conditions arising in the country of
nationality . . . if such evidence is mate rial and was not available and w ould 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. , 7 44 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 o vercome 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 mot ion on a
change in his personal circums tances, the m otion 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 l ocale.” 10 In any event, the BIA

concluded Chen’s motion failed because there i s 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, w e 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 conditi ons , 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, t he BIA provided us with sufficient reasoning for us to discern “ why t he
record supports its conclusion .” 11 T he BIA explained why it did not credit specific pieces

of evidence, noting either unreliability or lack of the comparator necessary to establ ish a
“change.” 12 Our r eview of this reaso ning 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 Chi na’s one

- child policy, the BIA ’s

determination that Chen did not show that this severity constituted a change fr om
conditions during his 1998 hearing is a viable interpre tation 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

J uxtaposition of C hen’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 p olicy when it discounted evidence because of its age , even though it was
previously unavailable. This assertion is unavailing because the BIA reasonably

concluded t hat the evidence reflected then

- existing circumstances. The BIA ultimately

was not persuad ed 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 pr ior 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 c ontends 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 condit i ons

.
V.

For the reasons set forth above , we w ill deny the petition for review

. 15

15 Bec ause 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.