2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no va . e du/thir dc ir c uit_2004/32* The H onorab le William H . Yohn , United S tates District Judge fo r the Eastern

Distri ct of Pennsy lvania , si tti ng by des ignati on. NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

____________ Nos. 03-3746 and 04-1364

____________ WEN CHEN; DING C HENG XU, Petitioners

v. JOH N A SHC ROF T, Attorney General of the United States; BUREA U OF CITIZENSHIP AND IMMIGRA TION SERVICES,

Res pon dents

____________ On Petiti on for Review from an Ord er of th e Bo ard o f Imm igration Ap peals (Board Nos. A78-199-307 and A78-199- 308)

____________ Argued December 7, 2004 Be for e: R EN DE LL and FIS HE R, Circuit Judges , a nd Y OHN, * Distri ct Judge
. (Fil ed December 28, 2004) Theodore N. Cox Joshua E. Bardavi d (Argued) Law Office of Theodore N. Cox 401 Broadway, Sui te 701 New Y ork, NY 10013 Attorneys for Petit ioners1 Pet it io ne rs al te rn at iv el y ar gue th at th e Un ited St at es ’ o bl ig atio ns und erth e U. N. Protocolrelat

ing to t he stat us of refugees and the Conventi on Against Tort ure override the regulatory standard f or a mo tion to reopen whe n the alien fac es persecu tion or torture if repa tri ated, and additionall y, that pur suant t o the Internati onal Covenant on Civi l and Political Rights, theycannot be r epatri ated without givi ng due consider ation to the effect it would have on their

famili es. Because Petitioners did not r aise t hese cla ims before t

he BIA, theyhave fail ed to exhaust their administ rati ve remedies , and this Court is without jurisdictio n to co nside r either a rgum ent. 2 Earl B. Wil son (Argued) Linda S . Werne ry Terri J . Scadron Willi am C. Minick United States Department of Justi ce Office of Immigrat

ion Litigati on Ben Franklin St ation P.O. Box 878 Washington, DC 20044 Attorn eys for Resp ond ents

____________ OPINI ON OF THE COURT

____________ FIS HE R, Circuit

Judge
. Appellant s, Wen Chen and Ding Cheng Xu (“Petitioners ”), nat ives and ci tize ns of the People ’s Republi c of China, appe al the Board of Immigration Appeals’ (“BIA”) denial of thei r Motion to Reopen and Reconsi der and Motion t o Reopen and Remand their asy lum proceedi ngs. Petiti oners ar gue that the BIA abused it s discretion i n denyi ng their Motions to Reopen, because they pr esented ne w and materialevidence of pr ima facie eligibili ty for asy lum, withholding of removal, and relie f under Arti cle II I of the Convention Against

Torture. 1 We revers e the B IA’s denia l of P etitioner s’ M otion to2 Petitioner Ding Cheng Xu, the husband of Chen, entered the United States on or

about November 1, 1997, at an unknown place, without admi ssion or parole a fter inspe ction b y a Serv ice of ficer. C hen a nd X u w ere m arried o n Se ptem ber 9 , 1999 , in Ne w Y ork. T heir ca ses w ere co nsolid ated a t their req uest. 3 Reopen and Remand Based on Lozada and accordi ngly , do not reach the deni al of Petitioners’ M otion to Re open a nd R econsider. As w e write solely for the parties, a m inimum of facts w ill be recited. Petitioners initiall y sought

asy lum, withholding of removal, and relie f under Arti cle II I of the Convention Against

Torture on t

he ground that

Chen was persecute d on account of her political opinion. 2 Th e b as is o f C he n’ s c lai m w as th at s he w as se xu all y m ol es ted by a customer of he r employ er with t he complici ty of the chai rman of the factory where she worked in China, and as a res ult of reporti ng the inc ident to authori ties , she was terminated from her

job and threatened t

hat she s hould not voi ce further complai nts. The Immigrat ion Judge deni ed Petit ioners ’ appli cati on for asy lum on thi s basis , however, as “there [was] no evidence that t he harm suffere d by [Chen] was on acc ount of her a ctual or imp uted pol itical o pin ion .” (Im mig r. J. O rde r at 7 .) (A pp. 1 95.) Petitioners appealed t

he Immigration Judge’ s decis ion to t he BIA. During the pend ency of this app eal, C hen g ave b irth to tw in dau ghters . On M arch 2 5, 200 2, w hile their ap peal w as still pen ding befo re the B IA, P etitioner s filed a M otion to Rem and in order to present evidence of the birt h of their children, which they alleged would cause them to b e persecu ted unde r China’s o ne-child fam ily planning policy should they return to China. On M ay 28, 2003, the BIA affirmed the I mmigrati on Judge’s dec isi on denyi ng4

Petitioners ’ appli cati on for asy lum and denied t heir Motion to Remand, because the arguments and e vidence pr esented di d not est ablis h that t he outcome would have been differe nt if remand was granted. On June 23, 2003, Petiti oners fi led a Motion t o Reopen and Reconsider Asy lum Proceedings with the BIA. On August 19, 2003, t he Motion was denied as the BIA found that i t was not suppor

ted byobjective evi dence showing that pers ons in their s ituat ion, Chinese nationals with forei gn-born chi ldren, would be persecuted under China’ s onechild f amilyplanning pol icyif ret urned to China . The Board thus concluded that Petitioners fail ed to demonstr ate prima faci e el ig ib il ity for as y lu m. On September 22, 2003, repres ented bynew counsel, Pet iti oners fi led the ir Motion to Reopen and Remand Based on Lozada before the BIA. (Cit ing Matter of Loz ada , 19 I. & N. Dec. 637 (BIA 1988)). The Motion al leged that Peti tioner s were provi ded ineff ective assistan ce of coun sel by their p reviou s attorn ey, becau se he failed to sub mit evidence that the Chinese government enforces its one-child policy against Chinese nationals w ith foreign-bo rn children in their earlier M otion to Re open a nd R econsider. In support of

this Motion, Petiti oners attached an aff idavit by John Shi elds Air d, a ret ired dem ogra pher from the U nited S tates B ureau of the Cen sus as a spe cialist on dem ogra phic developments and population poli cy i n China. I n his affi davit, Aird asser ted that China
en fo rc es it s o ne -c hi ldpol ic y ag ai ns t p er so ns in Che n’ s a nd X u’ s s it ua ti on. On February5, 2004, t

he Board again deni ed the Motion t o Reopen and Remand Based on3 The latter concl usion was based upon t he BIA’s determinati on that be cause Chen gave birt h to her twin daughters on May 1, 2001, she must have known that she was pregnant on J anuary 10, 2001, j ust four months before, when she testifie d before the immigration judge in sup port of Pe titioners’ asylum application. Th erefore, the B IA conclud ed that the info rmation pe rtaining to the birth of C hen’s and Xu’s tw in daugh ters was n ot previously unav ailable within the m eaning o f 8 C.F .R. § 100 3.2(c)(1). 5 Lozada , findi ng that Pet iti oners stillhad not demonstr ated prim a facie eligibili ty for asy lum and also, that t

hey fai led to present new and pre viousl y unavai lable evidence. 3 Because thi s Court fi nds that Petitioners sati sfied t

heir bur den of demonstrating prim a facie eligibili ty for asy lum, we rever se the BIA’s de nial of their Motion to Reopen and Remand Based on Lozada
. A motion to reope n must est ablis h prim a facie eligi bility fo r asylu m. Guo v. Ash croft , 386 F.3d 556, 563 (3d Cir. 2004) (ci ting Sevo ian v. A shcro ft , 290 F.3d 166, 173 n.5 (3d Cir . 2002)) . The prima faci e case st andard for a motion to r eopen requi res the applic ant to pr oduce objective evi dence showing a re asonable l ikeli hood that he can esta blish that h e is e ntitle d to relie f. Id. (citing Sevoian , 290 F .3d at 1 74). A “‘reas onab le likel ihood’” means “ merelyshowing a real istic chance t hat the petit

ioner ca n at a l ater time est ablis h that a sylum should be granted.” Id. at 564. In Gu o v. A shcro

ft , thi s Court re centl y hel d that t he prim a facie case standa rd for a
mo tion to re ope n w as m et w her e the app lican t sub mitte d, inter alia , the birt h certi ficat e of the appl icant ’s fi rst c hild, a letter fr om the appli cant’s obstet rici an descri bing the birth of her second chi ld, aprevious BIA decision gr anting a motion t o reopen asy lum proceedi ngs of a Chinese applicant with two U.S.-born chi ldren, and most notabl y, an6

affidavi t by John Shiel ds Aird in s upport of t he appli cant’s clai med fear of pers ecuti on und er C hin a’s o ne- child fam ily plan nin g po licy. Id. at 560. Be cause P etitioners here present ed substa ntial ly simil ar evide nce to that offer ed in the Guo case, t his Court finds that Pet iti oners have met

their burden in es tabli shing prim a facie el ig ib il ity for as y lu m. We reject the BIA ’s dete rmina tion tha t Petition ers sho uld h ave c om e forw ard w ith the fa ct of C hen’ s preg nanc y and the refor e failed to pres ent ne w a nd p reviou sly unavail able evi dence. OnlyChen’s givi ng birt h, not he r pregnancy , would have been grou nds f or relief , so the p resen tation o f her p regn ancy alo ne w ould not h ave b een a basis for reopeni ng and the pre sentation of the birt h of the chi ldren af

ter t he Januaryhearing was new and previousl y unavai lable evidence. For these reasons, we will grant the Peti tions at Nos. 03- 3746 and 04-1364.

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