2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-28-2004

Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3746

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Recommended Citation

"Chen v. Atty Gen USA" (2004). 2004 Decisions. Paper 32.

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*The Honorable William H. Yohn, United States District Judge for the Eastern

District of Pennsylvania, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 03-3746 and 04-1364

____________

WEN CHEN; DING CHENG XU,

 Petitioners

v.

JOHN ASHCROFT, Attorney General of the United States;

BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES,

 Respondents

____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board Nos. A78-199-307 and A78-199-308)

____________

Argued December 7, 2004

Before: RENDELL and FISHER, Circuit Judges, and YOHN,* District Judge.

(Filed December 28, 2004)

Theodore N. Cox

Joshua E. Bardavid (Argued)

Law Office of Theodore N. Cox

401 Broadway, Suite 701

New York, NY 10013

Attorneys for Petitioners
1

Petitioners alternatively argue that the United States’ obligations under the U.N.

Protocol relating to the status of refugees and the Convention Against Torture override

the regulatory standard for a motion to reopen when the alien faces persecution or torture

if repatriated, and additionally, that pursuant to the International Covenant on Civil and

Political Rights, they cannot be repatriated without giving due consideration to the effect

it would have on their families. Because Petitioners did not raise these claims before the

BIA, they have failed to exhaust their administrative remedies, and this Court is without

jurisdiction to consider either argument.

2

Earl B. Wilson (Argued)

Linda S. Wernery

Terri J. Scadron

William C. Minick

United States Department of Justice

Office of Immigration Litigation

Ben Franklin Station

P.O. Box 878

Washington, DC 20044

Attorneys for Respondents

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Appellants, Wen Chen and Ding Cheng Xu (“Petitioners”), natives and citizens of

the People’s Republic of China, appeal the Board of Immigration Appeals’ (“BIA”)

denial of their Motion to Reopen and Reconsider and Motion to Reopen and Remand

their asylum proceedings. Petitioners argue that the BIA abused its discretion in denying

their Motions to Reopen, because they presented new and material evidence of prima

facie eligibility for asylum, withholding of removal, and relief under Article III of the

Convention Against Torture.1 We reverse the BIA’s denial of Petitioners’ Motion to
2

Petitioner Ding Cheng Xu, the husband of Chen, entered the United States on or

about November 1, 1997, at an unknown place, without admission or parole after

inspection by a Service officer. Chen and Xu were married on September 9, 1999, in

New York. Their cases were consolidated at their request.

3

Reopen and Remand Based on Lozada and accordingly, do not reach the denial of

Petitioners’ Motion to Reopen and Reconsider.

As we write solely for the parties, a minimum of facts will be recited. Petitioners

initially sought asylum, withholding of removal, and relief under Article III of the

Convention Against Torture on the ground that Chen was persecuted on account of her

political opinion.2 The basis of Chen’s claim was that she was sexually molested by a

customer of her employer with the complicity of the chairman of the factory where she

worked in China, and as a result of reporting the incident to authorities, she was

terminated from her job and threatened that she should not voice further complaints. The

Immigration Judge denied Petitioners’ application for asylum on this basis, however, as

“there [was] no evidence that the harm suffered by [Chen] was on account of her actual or

imputed political opinion.” (Immigr. J. Order at 7.) (App. 195.)

Petitioners appealed the Immigration Judge’s decision to the BIA. During the

pendency of this appeal, Chen gave birth to twin daughters. On March 25, 2002, while

their appeal was still pending before the BIA, Petitioners filed a Motion to Remand in

order to present evidence of the birth of their children, which they alleged would cause

them to be persecuted under China’s one-child family planning policy should they return

to China. On May 28, 2003, the BIA affirmed the Immigration Judge’s decision denying
4

Petitioners’ application for asylum and denied their Motion to Remand, because the

arguments and evidence presented did not establish that the outcome would have been

different if remand was granted.

On June 23, 2003, Petitioners filed a Motion to Reopen and Reconsider Asylum

Proceedings with the BIA. On August 19, 2003, the Motion was denied as the BIA found

that it was not supported by objective evidence showing that persons in their situation,

Chinese nationals with foreign-born children, would be persecuted under China’s onechild family planning policy if returned to China. The Board thus concluded that

Petitioners failed to demonstrate prima facie eligibility for asylum.

On September 22, 2003, represented by new counsel, Petitioners filed their Motion

to Reopen and Remand Based on Lozada before the BIA. (Citing Matter of Lozada, 19 I.

& N. Dec. 637 (BIA 1988)). The Motion alleged that Petitioners were provided

ineffective assistance of counsel by their previous attorney, because he failed to submit

evidence that the Chinese government enforces its one-child policy against Chinese

nationals with foreign-born children in their earlier Motion to Reopen and Reconsider. In

support of this Motion, Petitioners attached an affidavit by John Shields Aird, a retired

demographer from the United States Bureau of the Census as a specialist on demographic

developments and population policy in China. In his affidavit, Aird asserted that China

enforces its one-child policy against persons in Chen’s and Xu’s situation. On

February 5, 2004, the Board again denied the Motion to Reopen and Remand Based on
3The latter conclusion was based upon the BIA’s determination that because Chen

gave birth to her twin daughters on May 1, 2001, she must have known that she was

pregnant on January 10, 2001, just four months before, when she testified before the

immigration judge in support of Petitioners’ asylum application. Therefore, the BIA

concluded that the information pertaining to the birth of Chen’s and Xu’s twin daughters

was not previously unavailable within the meaning of 8 C.F.R. § 1003.2(c)(1).

5

Lozada, finding that Petitioners still had not demonstrated prima facie eligibility for

asylum and also, that they failed to present new and previously unavailable evidence.3

Because this Court finds that Petitioners satisfied their burden of demonstrating

prima facie eligibility for asylum, we reverse the BIA’s denial of their Motion to Reopen

and Remand Based on Lozada.

A motion to reopen must establish prima facie eligibility for asylum. Guo v.

Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004) (citing Sevoian v. Ashcroft, 290 F.3d 166, 173

n.5 (3d Cir. 2002)). The prima facie case standard for a motion to reopen requires the

applicant to produce objective evidence showing a reasonable likelihood that he can

establish that he is entitled to relief. Id. (citing Sevoian, 290 F.3d at 174). A “‘reasonable

likelihood’” means “merely showing a realistic chance that the petitioner can at a later

time establish that asylum should be granted.” Id. at 564.

In Guo v. Ashcroft, this Court recently held that the prima facie case standard for a

motion to reopen was met where the applicant submitted, inter alia, the birth certificate of

the applicant’s first child, a letter from the applicant’s obstetrician describing the birth of

her second child, a previous BIA decision granting a motion to reopen asylum

proceedings of a Chinese applicant with two U.S.-born children, and most notably, an
6

affidavit by John Shields Aird in support of the applicant’s claimed fear of persecution

under China’s one-child family planning policy. Id. at 560. Because Petitioners here

presented substantially similar evidence to that offered in the Guo case, this Court finds

that Petitioners have met their burden in establishing prima facie eligibility for asylum.

We reject the BIA’s determination that Petitioners should have come forward with

the fact of Chen’s pregnancy and therefore failed to present new and previously

unavailable evidence. Only Chen’s giving birth, not her pregnancy, would have been

grounds for relief, so the presentation of her pregnancy alone would not have been a basis

for reopening and the presentation of the birth of the children after the January hearing

was new and previously unavailable evidence.

For these reasons, we will grant the Petitions at Nos. 03-3746 and 04-1364.

________________________