2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-3-2013

Yan Li v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1114

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 13-1114

_________________

YAN YAN LI,

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. A093-396-760)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 3, 2013

Before: AMBRO, JORDAN and BARRY, Circuit Judges

(Opinion filed: June 3, 2013)

_________________

OPINION

_________________

PER CURIAM

Yan Yan Li (“Li”) petitions for review of the Board of Immigration Appeals‟ 

denial of her motion to reopen. For the reasons that follow, we will deny the petition for 

review.
2

I.

In 2008, Yan Yan Li appeared at a removal proceeding before an Immigration 

Judge (“IJ”). Although Li did not contest the IJ‟s finding that she overstayed her visa in 

violation of 8 U.S.C. 1227(a)(1)(B), she sought withholding of removal on the basis of 

China‟s family planning policy. The IJ found her testimony lacking in credibility and 

ordered her removal to China. The Board of Immigration Appeals (“BIA”) affirmed in 

mid-2009. Due to attorney error, Li did not receive notice that her appeal was 

unsuccessful. Upon her motion, the BIA reissued its decision in December 2010, and we 

denied her subsequent petition for review in Li v. Att‟y Gen. of the U.S., 432 F. App‟x

137 (3d Cir. 2011). 

More than a year later, Li filed a counseled motion to reopen with the BIA. She 

stated that she converted to Christianity in 2011, and that the Chinese government had 

increased its persecution of members of unregistered Christian groups between 2008 and 

2011. In denying her motion, the BIA found that Li‟s evidence neither demonstrated that 

she will suffer persecution upon her return to China, nor established a change in country 

conditions. Therefore, the BIA determined that Li lacked a basis for filing her motion to 

reopen after the 90-day deadline for motions to reopen had passed. The BIA further 

declined to exercise its authority to sua sponte reopen Li‟s proceedings. Through 

counsel, Li filed a timely petition for review.

1

 

1 We lack jurisdiction to review the portion of the BIA‟s decision that denied sua sponte 

reopening. See Pllumi v. Att‟y Gen. of the U.S., 642 F.3d 155, 159 (3d Cir. 2011).
3

II.

We have jurisdiction under 8 U.S.C. § 1252, and we review denials of motions to 

reopen under a deferential abuse of discretion standard.

2

See Sevoian v. Ashcroft,

290 F.3d 166, 170, 174 (3d Cir. 2002). “Discretionary decisions of the BIA will not be 

disturbed unless they are found to be „arbitrary, irrational or contrary to law.‟” Tipu v. 

I.N.S., 20 F.3d 580, 582 (3d Cir. 1994) (citations omitted). A motion filed more than 90 

days after the final decision of the BIA cannot be entertained unless it “is based upon 

changed country conditions proved by evidence that is material and was not available and 

could not have been discovered or presented at the previous proceeding.” Pllumi v. Att‟y 

Gen. of the U.S., 642 F.3d 155, 161 (3d Cir. 2011). A renewed asylum application based 

on changes in personal circumstances filed outside of the 90-day window must be 

accompanied by a motion to reopen that successfully shows changed country conditions. 

Liu v. Att‟y Gen. of the U.S., 555 F.3d 145, 150 (3d Cir. 2009).

Li does not dispute that her motion to reopen was filed more than 90 days after the 

BIA‟s final decision. Rather, Li asserts that the BIA abused its discretion in denying her 

motion to reopen because it selectively considered the evidence to find that Li failed to 

establish changed country conditions. We have stated that the BIA is required to 

 

2 Because we find that the BIA‟s decision was not arbitrary, irrational, or contrary to law, 

we do not reach the BIA‟s alternative determination that Li did not establish a prima facie 

case for asylum relief. See Sevoian, 290 F.3d at 169-70 (3d Cir. 2002) (stating the BIA 

may deny a motion to reopen in asylum cases where it determines that “the movant 

would not be entitled to the discretionary grant of relief”) (quoting INS v. Abudu, 485 

U.S. 94, 105 (1988)).
4

consider the evidence of changed country conditions presented by a party, and that 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.” Zheng 

v. Att‟y Gen. of the U.S., 549 F.3d 260, 268 (3d Cir. 2008) (quoting Wang v. BIA, 

437 F.3d 270, 275 (2d Cir. 2006)). But it need not “parse or refute on the record each 

individual argument or piece of evidence offered by the petitioner.” Id. Here, the BIA

reviewed, among other evidence that Li submitted, Li‟s baptism certificate, a letter from a 

church in the United States, and excerpts from U.S. Department of State country and 

International Religious Freedom reports, China Aid Association reports, and research 

articles. The BIA then cited the 2009 U.S. Department of State country report on China, 

and the 2009 and 2010 International Religious Freedom Reports to support its finding 

that Li‟s evidence was inadequate to establish her eligibility for asylum or demonstrate 

the existence of changed country conditions.3 

To the extent that Li argues the BIA erred by failing to find the existence of 

changed country conditions, we find that the BIA‟s determination was reasonable in light 

of the evidence before it. The 2009 and 2010 International Religious Freedom Reports

establish that the practice of Christianity in China is restricted to those churches 

registered with the government. In those years, leaders and members of unregistered 

churches faced detention for activities related to their religious practice. The BIA

 

3 We note that, as the BIA found, Li‟s conversion to Christianity constitutes a change in 

personal circumstances rather than country conditions. See Liu, 555 F.3d at 150.
5

therefore reasonably concluded that Li did not establish changed country conditions 

sufficient to justify an exception to the time and number limitations on filing a motion to 

reopen. 

After reviewing the record, it does not appear that the BIA‟s decision was 

arbitrary, irrational, or contrary to law. Accordingly, we will deny the petition for 

review.