FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 26, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11195

Non-Argument Calendar

________________________

Agency No. A77-914-051

YAN LU XIU, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL,

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(September 26, 2008)

Before BIRCH, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:
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Yan Lu Xiu, a native and citizen of China, petitions for review of the

decision of the Board of Immigration Appeals to deny her motion to reopen her

removal proceedings. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c). The

Board found that Xiu failed to prove that conditions in China had changed since

her original removal hearing. We grant Xiu’s petition and we vacate and remand

for further proceedings.

I. BACKGROUND

Xiu is a native of Changle City in the Fuijan province of China. On January

2, 2000, Xiu presented a false Japanese passport to enter the United States. After

her arrival, Xiu joined her husband, also a native of the Fuijan province, in New

York, and gave birth to two sons.

Two weeks after Xiu entered Miami, she was charged with entering the

country without a valid entry document. INA § 212(a)(7)(i)(I). The notice stated

that an asylum officer found that Xiu presented a credible fear of persecution. Xiu

told the asylum officer that Chinese family planning officials forced her to have an

abortion one year after her marriage because she had not obtained a birth permit. 

After the abortion, Xiu was required to submit to an examination every three

months. After Xiu failed to report for her examination in 1999, she left China in

fear that she would be incarcerated.
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Xiu conceded removability and applied for asylum, withholding of removal,

and relief under the Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment. See 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208-

16. Xiu relocated to New York and moved for a change of venue. Xiu did not

appear for her removal hearing in February 2000. The immigration judge found

that Xiu abandoned her application and ordered Xiu removed to China.

Xiu moved to reopen her case on the ground that counsel told her, absent a

written decision regarding venue, she was not required to attend scheduled

hearings. The immigration judge denied the motion. A month later, Xiu gave

birth to her first son. Twenty-eight days after the birth of her second son, the

Board dismissed Xiu’s appeal.

In August 2007, Xiu filed a motion to reopen her case based on changed

conditions in China and a motion for leave to file an application for asylum and

withholding of removal based on changed country conditions and changed

personal circumstances. To support her motions, Xiu offered previously

unavailable evidence that officials in the Fuijan province had intensified

persecution of parents of two children. Xiu presented her own affidavit, which

stated that family and friends reported an increase in the use of forced abortions

and sterilizations and criminal prosecution for those who resisted the family
4

planning policies. Xiu stated that village officials were aware that she had given

birth to two sons while living in the United States and, because the boys were

considered Chinese citizens, she feared that she would be forced to undergo

sterilization. Xiu also presented an affidavit from her mother, which stated that

family planning rules had been “more strictly implemented . . . in the past year”

and reported two forced sterilizations in Changle City in 2006 and 2007.

Xiu offered documents from local authorities and newspaper articles to

substantiate her allegations that local officials had intensified enforcement of

family planning policies. A Notice issued in January 2007 by the Changle City

family planning committee stated that “no additional child shall be permitted after

one boy”; a married “couple” was required to “undergo the sterilization operation

after the birth of their second child”; and acts “inconsistent” with the family

policies were “subject to punishments accordingly.” A document from the

Political Bureau of the Central Planning Committee for Fujian Province instructed

local family planning committees to use “new methods and scientific plan[s]” to

fulfill its 2007 family planning goals and urged officials, “especially in 2007,” to

“stabilize low level birth” and “eliminate” births that exceeded the number

allowed by family planning policies by “finish[ing] up the last round of operation

of IUD[s] and . . . sterilization” and to “strictly prohibit birth[s]” that occurred
5

“outside policy.” Two other government documents, including a March 2006

ordinance issued by the Administrative Office of the National Population and

Family Planning Committee and a May 2003 Administrative Opinion issued by

the Changle City Family Planning Board, stated that the national and Fujian family

planning laws did not recognize the foreign citizenship of children born to

Chinese parents. Those documents warned that “reproductive behaviors” in

violation of family planning policies would be “sanctioned” and could be

“considered an illegal birth.” A May 2007 article in the Shanghai daily newspaper

stated that “China is now cracking down on family planning violations,” including

births by government officials. Several other news articles in 2007 described the

creation of “population schools” by local officials to detain citizens and force

abortions and sterilizations. 

Xiu offered the 2006 Country Report, which documented intensified

enforcement of family planning policies. The report stated that officials in the

Fujian Province forcibly sterilized women in 2006 and compelled citizens to

undergo abortions and sterilizations by using financial penalties. The report also

documented the forcible sterilization of “[a]t least 7,000 persons” in Shandong

Province. 
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Xiu also offered evidence to establish that she, as a mother of two children

born in the United States, would be subject to persecution upon removal to China. 

Xiu submitted an affidavit from Jin Fu Chen, which stated that he was forcibly

sterilized by Changle City family planning officials in 2003 when he returned to

Japan with his two children who had been born abroad. She also submitted a letter

from the Family Planning and Birth Control Office of Hangcheng Township,

Changle City dated July 20, 2007, which stated that Xiu’s two sons would be

“regulated as Chinese citizens”; the village “strictly implements” the family

planning policy and “citizens with two children [are] the target of sterilization and

have to undergo the sterilization operation”; and Xiu was to “strictly follow the

family planning regulations” when she returned to China.

The Board denied Xiu’s motion to reopen and her motion for leave to file a

successive application for asylum. The Board found that the motion to reopen was

time-barred. See 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(4)(ii). The Board

concluded that Xiu had not satisfied the exception to the 90-day deadline because

her evidence regarding the enforcement of family planning laws, which was

similar to evidence the Board had considered in previous motions, did not

establish a material change in circumstances in China and the birth of Xiu’s

children did not constitute a change in circumstances in the country of nationality. 
7

The Board found that the letter from the Family Planning and Birth Control Office

of Hangcheng Township was of “questionable authenticity” because Xiu did not

submit the original with the motion to reopen. The Board denied leave to file a

successive application for asylum because Xiu did not establish a change in

country conditions and concluded that her “documentary evidence” was

insufficient to establish that she would be persecuted by the Chinese government

for “her alleged violation of the Chinese exit laws.” 

II. STANDARDS OF REVIEW

We review the denial of a motion to reopen a removal proceeding for abuse

of discretion. Li v. U. S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007) (citing

Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001)). We review the legal

conclusion of the Board de novo. Al Najjar, 257 F.3d at 1287. “[A]dministrative

findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis

added).

III. DISCUSSION

Xiu argues that the Board abused its discretion by denying her motion to

reopen proceedings for failure to establish changed circumstances or a prima facie

case of eligibility for asylum. She also argues that she should be permitted to file
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a successive asylum application without filing a motion to reopen because she

presented evidence of changed country conditions. Xiu argues that she presented

evidence that local government officials recently have intensified enforcement of

the China “one-child” policy.

To qualify for asylum or withholding of removal, an alien must establish

that she has a well-founded fear of persecution if she is removed to her home

country on account of her race, religion, nationality, membership in a particular

social group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1),

1231(b)(3). The Immigration and Nationality Act states that forced abortions and

sterilizations are considered persecution:

A person who has been forced to abort a pregnancy or to undergo

involuntary sterilization, or who has been persecuted for failure or

refusal to undergo such a procedure or for other resistance to a

coercive population control program, shall be deemed to have been

persecuted on account of political opinion, and a person who has a

well founded fear that he or she will be forced to undergo such a

procedure or subject to persecution for such failure, refusal, or

resistance shall be deemed to have a well founded fear of persecution

on account of political opinion.

INA § 101(a)(42)(B); 8 U.S.C.A. § 1101(a)(42)(B). 

An alien may file a motion to reopen removal proceedings within 90 days

after the final administrative decision. 8 C.F.R. § 1003.2(c)(2). The deadline does

not apply if the motion to reopen is based on changed circumstances in the country
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of the alien’s nationality that was not available and could not have been presented

at the removal hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). 

The Board has discretion to deny a motion to reopen for at least three reasons: “1)

failure to establish a prima facie case; 2) failure to introduce evidence that was

material and previously unavailable; and 3) a determination that despite the alien’s

statutory eligibility for relief, he or she is not entitled to a favorable exercise of

discretion.” Al Najjar, 257 F.3d at 1302.

We held recently that evidence of a campaign of forced sterilization in an

alien’s home village constitutes changed circumstances and qualifies for an

exception to the 90-day filing deadline for a motion to reopen. Li v. U.S. Att’y

Gen., 488 F.3d 1371, 1375 (11th Cir. 2007). Li submitted affidavits that reported

accounts of sterilization in her home province and offered Country Reports of the

State Department, the 2005 Consular Information Sheet, and congressional

testimony to corroborate the affidavits. Id. at 1373. We concluded that Li

submitted evidence that, since the time of her original removal hearing,

government officials in the Fujian province “had intensified the persecution of

parents of two children.” Id. at 1375.

This case is indistinguishable from Li. Xiu presented evidence that

government officials have changed their policies regarding the enforcement of
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abortion and sterilization in her home village of Changle City and the Fujian

province. Xiu submitted her own affidavit, which stated that she had a fear of

forced sterilizations because of reports in her hometown that enforcement of the

family planning policy had become “tougher” in the last year. Xiu’s mother, Lin,

attested that government officials in the Fujian province had intensified efforts to

enforce family planning laws and Changle City officials had forced a man and

woman in 2006 and 2007 to undergo sterilization for failing to comply with the

village’s family planning laws. Although the Board questioned the authenticity of

the document from the Family Planning and Birth Control Office of Hangchen

Township, the Board did not make any findings about the credibility of Xiu’s or

Lin’s statements. Cf. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.

2005) (a factfinder must make “‘clean determinations of credibility’”).

Xiu also presented substantial evidence to corroborate her anecdotal

evidence that she would face persecution if she were returned to China. Xiu

offered an affidavit from Jim Fu Chen that documented his forced sterilization in

2003 after he and his wife returned to China with two children that were born in

Tokyo while the couple was studying abroad. Government documents also

substantiate Xiu’s claim of changed conditions. A document distributed by the

Political Bureau of the Central Planning Committee for Fujian Province in
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December 2006 ordered local family planning committees to use “new methods

and scientific plan[s]” to fulfill 2007 family planning goals and urged officials,

“especially in 2007,” to “stabilize low level birth” and “eliminate birth[s] beyond

policy.” Consistent with that directive, the Changle City family planning

committee issued a Notice to the public the next month that mandated sterilization

after the birth of a second child and punishment for dissidents of the family

planning policy. The 2006 report from the State Department and newspaper

articles recounted human rights violations related to the Chinese family planning

policies.

The government argues that this evidence establishes, at most, a “strict

implementation” of the family planning laws, but that stricter enforcement is

entirely the point. Xiu’s evidence established that circumstances regarding the

enforcement of family planning policies had intensified since Xiu filed her

original application for asylum in 2000. It is no answer for the government to say

that the family planning laws were not being enforced strictly earlier.

The Board denied Xiu’s motion based on its rejection of similar evidence

offered in previous motions, but those decisions are not persuasive. In stark

contrast to the evidence offered by Xiu, previous applicants before the Board were

found not credible and did not establish any change in the enforcement of the
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Chinese family planning policy in their provinces. See In re S-Y-G, 24 I. & N.

Dec. 247 (BIA 2007); In re J-W-S, 24 I. & N. Dec. 185 (BIA 2007). Although Xiu

submitted a few documents that had been discounted by the Board in its earlier

decisions, she also presented evidence that established that local officials have

intensified enforcement of the policy through direct and indirect coercion. See

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (a factfinder must

“consider all evidence introduced by the applicant” in support of asylum

eligibility).

The Board abused its discretion when it refused to reopen Xiu’s removal

proceedings after Xiu established that conditions have changed in her country of

origin since her original removal hearing. In the light of our decision to grant

relief, we need not address whether Xiu is permitted to file a successive asylum

application based on changed circumstances. We GRANT Xiu’s petition,

VACATE the order that denied Xiu’s motion to reopen, and REMAND for

consideration of Xiu’s application for asylum.

PETITION GRANTED.