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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1894

___________

LI BIN LI,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A77 317 827)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 10, 2011

Before: SLOVITER, CHAGARES and WEIS, Circuit Judges

(Opinion filed: August 31, 2011)

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OPINION

___________

PER CURIAM.

Li Bin Li seeks review of an order of the Board of Immigration Appeals 

(“BIA”) denying her motion to reopen her removal proceedings. For the reasons that 

follow, we will deny the petition for review. 

Li is citizen of China who arrived in the United States on June 16, 2000. 
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Shortly thereafter, she was charged with removability pursuant to Immigration and 

Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I)]. Li

conceded that she was removable and applied for asylum. Later, however, an 

Immigration Judge (“IJ”) granted her request to “withdraw the application for admission” 

and ordered that if Li did not depart the United States by April 25, 2001, an order of 

removal would become immediately effective. Li did not depart. In 2007, Li filed a 

motion to reopen, seeking to apply for asylum on the ground that, since the time of her 

initial removal proceedings, she had given birth to three United States citizen children,

and feared persecution for violating China’s population control policies. The IJ denied 

the motion and the Board of Immigration Appeals (“BIA”) dismissed her appeal, holding, 

inter alia, that the birth of Li’s children was a change in personal circumstance, rather 

than a change of circumstances arising in China, and thus did not qualify as an exception 

to the 90-day time limit for filing a motion to reopen. 

Li filed a second motion to reopen in June 2010, seeking to apply for 

asylum, withholding of removal, and protection under the United Nations Convention 

Against Torture. She argued that material and previously unavailable evidence of 

changed circumstances in China was sufficient to excuse the time and numerical 

limitations on filing a motion to reopen. In support of her motion to reopen, Li submitted 

statements from women who were forcibly sterilized after having more than one child. 

The women’s statements were supported, in turn, by sterilization certificates and fine 

receipts. Li also provided a letter issued by her local Family Planning Office, which 
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stated that “if you bring your three children who were born in the United States to reside 

in China, . . . you must be sterilized . . . .” Li also provided letters, identity cards, 

passports, and birth and marriage certificates which apparently pertained to another 

applicant’s unrelated asylum case. She also submitted background material indicating 

that foreign-born children might be treated as Chinese citizens for purposes of the family 

planning policy. Finally, Li submitted a newspaper article and Amnesty International 

documents dated April 2010, which reported that Chinese authorities were working to 

sterilize close to 10,000 people who had violated the family planning policy in Puning 

City, Guangdong Province. 

After examining the evidence that Li had submitted, the BIA denied the 

motion to reopen, holding that it was untimely and that Li had failed to establish a change 

in country conditions so as to create an exception to the time limitation. In particular, the 

Board held that Li did not establish “in any manner” the authenticity of documents from 

China. The BIA also distinguished the evidence from the unrelated asylum case on the 

ground that it did not involve children born in the United States or the family planning 

policy in Li’s hometown. With respect to evidence indicating that foreign-born children 

would be counted in determining violations of China’s one-child policy, the Board 

concluded that such evidence was insufficient to demonstrate that Li would face forcible 

sterilization. Li filed a timely petition for review of the BIA’s decision. 

We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252]. We review 

the denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 
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241, 251 (3d Cir. 2006). Under this standard, we may reverse the BIA’s decision only if 

it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d 

Cir. 2002). An alien generally may file only one motion to reopen, and must file the 

motion with the BIA “no later than 90 days after the date on which the final 

administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The time and number 

requirements do not apply to motions that rely on evidence of “changed country 

conditions,” INA § 240(c)(7)(C)(ii) [8 U.S.C. § 1229a(c)(7)(C)(ii)], or “changed 

circumstances arising in the country of nationality . . . if such evidence is material and 

was not available and could not have been discovered or presented at the previous 

hearing.” 8 C.F.R. § 1003.2(c)(3). 

Li argues that the BIA failed to adequately explain why the evidence she 

submitted with the motion to reopen did not establish changed country conditions in 

China sufficient to warrant reopening.

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 The BIA is required to “actually consider the 

evidence and argument that a party presents.” Zheng v. Att’y Gen., 549 F.3d 260, 266 

(3d Cir. 2008) (quoting Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)). Indeed, 

“the BIA abuses its discretion if it fails completely to address evidence of changed 

 

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Li devotes a significant portion of her brief to arguing that her evidence demonstrates 

that she has a reasonable likelihood of success on the merits of her asylum application. 

As the Government notes, however, this argument is irrelevant because the BIA denied 

the motion to reopen on the ground that Li’s evidence was not sufficient to support 

reopening. See Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007) (explaining that 

whether a petitioner has presented previously unavailable and material evidence of 

changed country conditions and whether the evidence as a whole makes out a prima facie 

case for asylum are “related but analytically distinct” issues).
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country circumstances offered by a petitioner.” Id. At 268 (quoting Wang v. BIA, 437 

F.3d 270, 275 (2d Cir. 2006)). But this mandate does not require that the BIA “expressly 

parse or refute on the record each individual argument or piece of evidence offered by the 

petitioner.” Id. At 268 (quoting Wang, 437 F.3d at 275). In particular, the BIA is not 

required to address evidence that is plainly immaterial. See Guo v. Gonzales, 463 F.3d 

109, 115 (2d Cir. 2006) (finding an abuse of discretion where the BIA failed to consider 

documents that were “self-evidently material”). The burden is on the petitioner to prove 

that the BIA did not review the record or consider material evidence. Abdulai, 239 F.3d 

at 550. Li has not met that burden. In her brief, Li contends that the Board abused its 

discretion by failing to mention evidence of the 2010 crackdown by authorities in Puning 

City, Guangdong Province. Importantly, however, this evidence is not material because 

Li is from Fujian Province. Cf. Yuan v. Att’y Gen., 642 F.3d 420, 426 (3d Cir. 2011)

(holding that substantial evidence supported BIA’s determination that evidence unrelated 

to birth control policies in petitioner’s native province was inapposite). 

Li also faults the BIA for failing to appropriately consider evidence 

indicating that the Chinese government “changed its policy and began to count overseasborn children for family planning purposes.” In Matter of J-W-S-, the BIA held that 

evidence in the record failed to demonstrate that the Chinese government has a national 

policy of requiring forced sterilization of a parent who returns with a second child born 

outside of China, or that Fujian Province officials in particular were particularly likely to 

punish, by forcible sterilization, returning Chinese nationals with “unauthorized” children 
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born abroad. Matter of J-W-S-, 24 I. & N. Dec. 185, 190-91 (BIA 2007). In support of 

her argument that the birth control policy had changed, Li relies on a Report of 

Investigation issued by the United States Citizenship and Immigration Services. That 

Report, which was cited in Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 216 (BIA 

2010), indicated that a Chinese parent who returns with a second child born abroad will 

be “sanctioned in compliance with the relevant family planning rules and regulations 

upon returning to mainland China.” Li alleges that the “difference between the Board’s 

finding in J-W-S- and H-L-H- is so pronounced as to be stunning.” Significantly, 

however, after examining other evidence in the record, including “highly probative” State 

Department reports on country conditions, the Board in Matter of H-L-H & Z-Y-Zconcluded that “physical coercion to achieve compliance with family planning goals is 

uncommon and unsanctioned by China’s national laws and that the overall policy is much 

more heavily reliant on incentives and economic penalties.” Id. At 218. Ultimately, the 

BIA held that “the respondent has not shown that her locality represents a current 

exception to the general rules in which the Chinese Government relies on a variety of 

measures short of persecution to enforce its population control policy.” Id. Notably, we 

recently cited the “comprehensive discussion” in Matter of H-L-H & Z-Y-Z- in rejecting 

a claim that the BIA “failed to consider evidence showing that petitioners’ children will 

be treated as Chinese citizens.” Chen v. Att’y Gen., -- F.3d --, 2011 WL 923353, at *2 

(3d Cir. Mar. 18, 2011). Here, the BIA stated that it was “not persuaded that the evidence 

indicates that our decision in Matter of J-W-S- . . . is erroneous, or that [the evidence] 
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demonstrates changed country conditions since that decision.” Under these 

circumstances, we conclude that evidence fails to show that the BIA abused its discretion 

in denying reopening.

For the foregoing reasons, we will deny the petition for review.