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
4-22-2004 

# B in C he n v . Att y Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1715

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the 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 at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

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w . v i l l a no va . e du/thir dc ir c uit_2004/791* The Honorable John R. Gibs on, Senior Cir cuit J udge for the United Stat es Court of Appeals for t

he Eighth Cir cuit, sitting by designation. NOT PRECEDE NTIAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT No. 03-1715 BIN CHEN,

Petitioner
v. JOHN ASHCROFT, Attorney General of the United States,

Respondent

_________________________________ On petiti on for revi ew of a final or der of the Bo ard o f Imm igration Ap peals

File No: A77-551- 032

_________________________________ Submitte d pursuant

to Third Ci rcuit

LAR 34.1(a) on March 25, 2004 Before: FUENTES , SMITH, and JOHN R . G IBS ON, * Circuit Judges (Fil ed: April22, 2004)

______________________ OPINI ON OF THE COURT

_______________________2

JO HN R. G IBS ON , Circuit Judge
. Bin C hen p etitions for rev iew o f a de cision b y the Bo ard o f Imm igration Ap peals (" Board ") de ny in g Ch en ' s mo ti on to r eo pe n hi s c as e. For th e r ea so ns se t o utbe lo w, we den y Ch en's p etitio n fo r rev iew
. I. Ch en, a c itizen o f the P eople 's Rep ublic o f Ch ina, en tered th e U nited S tates in January , 1999, wit

h a false passport . The Immigration and Natura lization Ser vice i ssued Chen a No tice to App ear, charging th at he w as remo vable from the Un ited States unde r 8 U.S.C. § 1227(a )(1)( A). At a hearing before an Immigr ation J udge, Chen admitted removabil ity , but a

pplied f or asy lum, withholding of r emoval, and protect ion under t he Co nve ntio n A gain st T ortu re. At an evident iary

hearing on t

he merit s of Chen's applic ation, Chen testi fied that he is a native and ci tize n of China, where he l ived with hi s wife and son. After his son
wa s born , offic ials enforcing Ch ina's fam ily plannin g po licy forcib ly inserted a n IU D in to hi s wi fe' s bo dy . Th e Che ns p ai d a p ri vat e do ct orto re move it , and h is wif e be came pr eg na ntag ai n. Che n' s e mpl oy er fo rc edhe r t o have an ab orti on, in se rt edan othe r I UD, and fined th e fam ily. Chen 's com pany de nied C hen h is half-yea r bon us an d pu blicly criticiz ed him for vi olating China's family planning pol icy , inc luding pl acing hi s name on
a w ork plac e bu lletin boa rd. Chen's wife aga in became pregnant. She was t aken away and for ced to under go an3

aborti on. Another fine was assess ed against the Chens. Chen testi fied that his company wanted to st eril ize hi s wife, but determi ned that

due to blood l oss duri ng the second aborti on, she was phy sical ly unable t o undergo the procedure. Therefore, the company told Chen that he would be st eril ized i nstead of hi s wife. Chen di d not repor t to have the pro ced ure don e an d w as f ired fro m h is job
. At the hear ing, Chen suppl ied documentation to s upport hi s asy lum appli cati on, such as a r eceipt

for the first f

ine ass essed agai nst hi m, cert ific ates from the birt h control operati ons, t

he notic e of ter

minati on from his j ob, bir th certific ates, his marr iage certi fica te, an d a h ous eho ld re giste r. Chen testi fied that his wife remained in China. She di d not come to t he United States because he "met

this person and I had this chance, and s he do not. " Chen said he could not a fford to pay

for both hi mself and her . Chen does not want to ret

urn to China bec aus e he fea rs ste riliza tion , arre st, or p lace me nt in a re- edu catio n ca mp . On December 6, 1999, the Immigrat ion Judge or ally denied Chen' s appli cati on for asy lum. The Judge found t hat Chen' s testimony was not detai led, consist ent, or underst andable. The Judge found part s of the t esti mony "vi rtual ly incomprehensible" and noted that "an es senti al pie ce of corroboration i s lacking in thi s case and t hat is an affidavi t" fr om Chen's wife attest ing to t he fact t hat the aborti ons were involuntary . The Judge sai d he would deny r elie f "on the bas is of a negative e xercis e of discr etion, " noti ng that C hen d id no t adeq uately ex plain w hy he ca me to the U nited S tates an d his w ife did4

not, s tating that Chen' s acti ons were not "t he ty pe of conduct t

hat we should be encouraging here with grants of asylum." Chen timely

appealed t

he Immigrat ion Judge' s decis ion to t he Board of Immigrat ion Appeals. The Board affirmed on October 8, 2002. Chen di d not seek judici al revi ew of the Board' s decis ion. Rat her, on December 27, 2002, Chen moved the Board to reope n his cas e to al low him to submit new evidence, c onsisting of Chen' s and his wife' s resi dent ide ntifi cati on cards, an affidavi t from his wife, and a s chool noti ce
ann oun cing Ch en's v iolat ion of C hin a's fa mily p lann ing pol icy. On F ebruary 12, 200 3, the Boa rd denied C hen's motion to reopen. T he Bo ard concluded t

hat as t o the ide ntifi cati on cards and t he affidavi t, Chen had not demonstrat ed that t he evidence was pr eviousl y unavai lable . As to t he school notice, the Board hel d that it di d no t " suppo rt

a f in di ng t ha t t he re sp ond en t' s wi fe was fo rc edto und er go t wo invo luntary ab ortions , espec ially in view of the Imm igration Judg e's adv erse cr edibility finding which we a ffirmed in our October 8, 2002, order." Chenfi le d a p et itio n fo r r evi ew wi thth is court on Mar ch 1 4, 200 3. Chencl ai ms that t he Board erre d in affi rming the I mmigrati on Judge' s denialof his r equest for asy lum and for deny ing his motion t o reopen. We willaddress e ach clai m in turn. II. The A ttorney

General has discretion to grant as ylum to an ali en who q ualifies as a refug ee. 8 U .S.C. § 115 8(b) (2 000 ). A re fug ee is a p erson wh o is un able o r unw illing to5

retur n to his or her native countrybecause of "per secuti on or a well- founded fear of persecution on account

of race, reli gion, national ity , membershi p in a particular soci al group, or politicalopinion. " 8 U.S.C. § 1101( a)(42) (A). In t he Ill egal Immigr ation Reform and Immigrant Responsibility Act of 1996 ("IIRIRA "), Congress specified that "a person who has been for ced to abort a pregnancy or to undergo involuntar

y st eril izat ion, or who has been pers ecuted for fail ure or r efusal to undergo such a pr ocedure or for other resi stance to a coerci ve populat ion control progr am, shal l be deemed to have been persecut ed on account of pol iti cal opi nion . . ." Pub. L. No. 104-208, 110 Stat. 3009-546 (Se pt. 3 0, 19 96) . Th e ap plica nt b ears the b urd en o f es tabli shin g re fug ee s tatus . See 8 C.F .R. § 2 08.13 (a) (20 02); Abdille v. Ashcroft , 242 F.3 d 47 7, 48 2 (3 d C ir. 20 01)
. If an applic ant fai ls t o establ ish that he or s he is entitl ed to asylum, we may pr esume that he or she can not me et the hig her stan dar d re qui red for wit hho ldin g of rem ova l. Janusiak v. INS , 947 F.2d 46, 47-48 (3d Cir. 199 1). Much of Chen's brief

is dedi cated t o arguing t hat he i s actual ly

eligible for a sylum and that we should overt

urn the Board' s October 8, 2002 decisi on. However, Chen waived his right t o judici al revi ew of this dec isi on. A peti tion for judici al revi ew must be file d within 30 day s of the Board' s decis ion. 8 U.S. C. § 1252(b)( 1). Chen di d not seek judici al revi ew within thi s ti me. The 30-day time period is "juri sdict ional in nature and must be construed with strict fi delity to [its] terms." St one v. INS , 514 U.S. 386, 4051 The Imm igration and N ationa lity Act orig inally impo sed a 90-d ay time p eriod to

file a peti tion for

judici al revi ew, but II RIRA shortened the time peri od to 30 day s. The 30- day p rov ision app lies to all fin al or der s en tered afte r O ctob er 3 0, 19 96. See Singh v. INS , 315 F.3 d 11 86, 1 188 (9th Cir . 200 3). 6 (1995) (co nstruing form er 8 U.S .C. § 110 5a(a)(1)). 1 Chen ' s mo ti on t o r eop en h is cas e do es not change our

con cl usi on. The S upr eme Court has hel d that t

he final ity

of an underl yi ng deportation order is unaffec ted by

the sub seq uen t filin g of

a m otio n to reco nsid er o r reo pen . Id. Thus, Chen's December 27, 2002 motion t o reopen does not tollthe 30-day

deadli ne for seeking judici al revi ew of the October 8, 2002 merits decisi on. Therefore, to the e xtent t hat Chen seeks r eview of eit her the Immigr ation J

udge's order denying asylum or the Boar d's de cisi on affirmi ng that ord er, w e are wit hou t juris dicti on t o he ar h is cla ims
. See Mar tine z- Ser rano v . I NS , 94 F.3 d 12 56, 1 258 (9th Cir . 199 6) (a ppl ying form er 8 U.S .C. § 110 5a( a)(1 )). Ch en also petition s for re view of the Bo ard's de nial of his m otion to reop en his case. The Board de nied the motion on Februar y 12, 2003. Chen fil ed a peti tion for review with t

his cour t on March 14, 2003. Therefore, the pet iti on was filed wit hin the 30- day w indo w a nd w e hav e jurisd iction to review the B oard 's denial o f the m otion to
reo pen . Ou r rev iew is fo r ab use of d iscre tion
. INS v. D oher ty , 502 U.S . 314 , 322 (19 92)
. We will no t overtu rn the B oard 's decisio n un less it w as arb itrary, irrational, o r con trary to law
. Sevoian v. Ashcroft , 290 F.3 d 16 6, 17 4 (3 d C ir. 20 02)
. Chen sought to introduce f our piece s of new evidence i n his moti on to reopen,7

including tw o resident iden tification cards and an affida vit from his w ife. The B oard found that

Chen failed to show why this evidence was pr eviousl y unavai lable . Motions to reopen s hall not

be grante d unless it appear s to the Board that the evi dence sought to be offered "i s materi al and was not availa ble and coul d not have been di scovered or presented a t the forme r hearing." 8 C .F.R. § 100 3.2(c)(1); see also INS v. Abudu , 485 U.S . 94, 10 4-05 (198 8). Ch en m akes no ar gum ent in h is brief w hy the B oard abus ed its disc retio n w ith re spe ct to t hes e ru ling s. Th erefore , Ch en h as w aive d th e issu e. See Fed. R. App. P. 28(a )(9) ( an argument must contai n "appell ant' s contentions and t he reasons for them, with citations to the a uthori ties and parts of the re cord on which the appell ant relies"); Martinez- Serrano , 94 F .3d a t 12 60. Chen also produce d a school notice dat ed November 8, 2002, which s tate d that Chen was fined for vi olating the family pl anning poli cy. The Board found that the noti ce di d no t " suppo rt

a f in di ng t ha t t he re sp ond en t' s wi fe was fo rc edto und er go t wo invo luntary ab ortions , espec ially in view of the Imm igration Judg e's adv erse cr edibility finding which we a ffirmed in our October 8, 2002, order." Chen argues that the Boar d abused it s discr etion be cause the Immigrat ion Judge did not make any

credibi lit

y fi nding in hi s order. While the Board' s order r eferred to the Judg e's decis ion, the Bo ard m ade a n ind epen dent d eterm ination that the new evide nce d id not subst antia lly

alte r Chen's clai m for asy lum. The Board not ed that the schoolnotice does no t corroborate C hen's claim that his w ife was forced to ha ve two involuntary8

aborti ons. The evi dence did not add any ne w facts, but

merely bolst ered Chen' s original clai m that was al ready

determi ned insuffi cient to support

a grant of

asy lum. Therefore, the Board was within its discr etion in concludi ng that t he affidavi ts were not

materi al and did not justif

y reop enin g C hen 's cas e. Ac cor din gly, C hen 's petit ion for rev iew is D EN IED
.