2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-5-2013

Jing Liu v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1946

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1946

___________

JING CHUN LIU,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A078-435-237)

Immigration Judge: Honorable Donald V. Ferlise

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 3, 2013

Before: AMBRO, JORDAN and BARRY, Circuit Judges

(Opinion filed: September 5, 2013)

___________

OPINION

___________

PER CURIAM

Petitioner Jin Chun Liu seeks review of a final order of the Board of Immigration 

Appeals (“BIA”). For the following reasons, we will deny the petition for review.
2

Petitioner is a citizen of China. In 2001, removal proceedings were initiated 

against him pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien 

present in the United States without being admitted or paroled. Petitioner conceded 

removability but applied for asylum, withholding of removal, and protection under the 

Convention Against Torture, based on his opposition to China’s population control 

policies. In 2003, the Immigration Judge (“IJ”) denied relief, finding no credible

evidence of past persecution or well-founded fear of future persecution, and ordered 

Petitioner removed to China. In 2005, the BIA upheld the IJ’s decision. In 2012, 

Petitioner filed a motion to reopen in the BIA, arguing that he had recently begun 

practicing Falun Gong and feared persecution on that basis if returned to China. On 

March 22, 2013, the BIA denied Petitioner’s motion. On April 5, 2013, Petitioner filed a 

counseled petition for review and a motion to stay removal in this Court. We denied his 

stay motion on April 21, 2013.

We begin by making clear the limited scope of this appeal. We have jurisdiction 

under 8 U.S.C. § 1252(a) only with respect to the BIA’s March 22, 2013 order denying 

Petitioner’s motion to reopen. The petition for review was not timely filed within 30 

days of the BIA’s 2005 order upholding the IJ’s removal order. See 8 U.S.C. 

§ 1252(b)(1); Stone v. INS, 514 U.S. 386, 405 (1995). The 30-day limitation period is 

mandatory and jurisdictional. See Vakker v. Att’y Gen, 519 F.3d 143, 146 (3d Cir. 

2008); McAllister v. Att’y Gen, 444 F.3d 178, 185 (3d Cir. 2006).
3

We review the BIA’s denial of a motion to reopen using the “highly deferential” 

abuse of discretion standard. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). A 

motion to reopen must be filed in the BIA within 90 days of the date of entry of the final 

order of removal. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). There is no time 

limit on filing a motion to reopen in the BIA if the basis of the motion is to apply for 

asylum and the motion is based on changed conditions in the country to which removal 

has been ordered, if such evidence is material and was not available or discoverable at the 

previous proceeding. See INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii). The

evidence presented must be genuine, authentic, and objectively reasonable. See In re SY-G, 24 I.&N. Dec. 247, 251 (BIA 2007).

We agree with the BIA that Petitioner’s motion to reopen was untimely. The 

motion was filed over 7 years after the BIA’s May 9, 2005 final order of removal. His 

motion was subject to the 90-day limitations period because it was not based on changed 

conditions in China supported by material evidence that was not available or discoverable 

at the time of the previous proceeding. Instead, Petitioner’s motion sought reopening 

because he began the practice of Falun Gong in 2011 and feared persecution on that basis 

if returned to China.1 See Liu v. Att’y Gen, 555 F.3d 145 (3d Cir. 2009). However, 

 

1

In support of his motion, Petitioner submitted a notice addressed to his parents in China 

by their local village branch of the Communist Party. The notice, dated July 2012, stated 

that reports had been received of Petitioner’s participation in Falun Gong and demanded 

he cease his activities and return to China for “severe punishment.” Petitioner also 

submitted a letter purportedly from his father stating that Chinese authorities had rushed 
4

Petitioner’s motion to reopen fails to demonstrate that the treatment of Falun Gong 

practitioners in China has materially changed since the time of his removal proceedings. 

To the contrary, Petitioner acknowledged that “[t]he Chinese government banned Falun 

Gong in China for over 10 years now.” We further note that the BIA found that the 

Communist Party notice, which was “unsigned and not authenticated in any manner,” 

was insufficiently reliable evidence. It also concluded that the letter from Petitioner’s 

father was unauthenticated, speculative, and written by a third party, and therefore was 

similarly unreliable. We agree that Petitioner did not establish through reliable evidence

that the Chinese authorities were aware of his Falun Gong activities or that he would face 

persecution on that basis if returned to China. Therefore, we cannot conclude that the 

BIA abused its discretion in denying the motion.2

 

into his home to serve the notice and demand Petitioner’s return to China for punishment.

2

Petitioner’s motion to reopen also asked the BIA to invoke its sua sponte authority 

pursuant to 8 C.F.R. § 1003.2(a). In denying reopening, the BIA refused to exercise that 

authority. We lack jurisdiction to review the BIA’s refusal to exercise its sua sponte 

authority. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003).