NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 07

- 4255

___________ BI XIA CHEN, Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES

____________________________________ On Petition for Review of a Decision of the Board of Immigration Appeals

(Agency No. A77

- 297

- 056) Immigration Judge: Honorable Eugene Pugliese

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) August 1, 2008 Before: AMBRO, FISHER and JORDAN, Circuit Judges (Opinion filed : August 17, 2012 )

___________

OPINION

___________ PER CURIAM Petitioner Bi Xia Chen seeks review of a final order by the Board of Immigration Appeals ( A BIA @ ). For the reasons that follow, we wi ll deny Chen = s petition.2 I. Chen is a citizen of China and a native of China = s Fujian Province. In June 2000, after conceding removability, she filed an application for asylum, withholding of removal, and protection under the Convention Agains t Torture ( A CAT @ ), claiming that she had been the victim of a forced abortion in China. After a hearing in April 2001, the IJ found Chen incredible, denied her application, and ordered her removal. On appeal, the BIA affirmed the IJ = s decision. Chen did not file a petition for review and did not depart the United States as ordered. She remained in the United States, had a child in June 2002, married a fellow Chinese citizen in April 2005, and had a second child in September 2005. Background

Chen filed a motion w ith the IJ in July 2006 seeking to file a successive asylum application or, in the alternative, to reopen her immigration proceedings based upon the births of her two United States citizen children. On August 25, 2006, the IJ dismissed the motion for lack of jurisdiction. Chen filed the same motion with the BIA and also appealed the IJ = s decision. The BIA denied Chen = s motion, affirmed the IJ = s decision, and dismissed her appeal. This petition for review followed.
II. We have jurisdiction ov er the petition for review pursuant to INA ' 242 [8 U.S.C.

' 1252]. We review the BIA = s findings of fact for substantial evidence. Analysis

See INA

' 242(b)(4)(B) [8 U.S.C. ' 1252(b)(4)(B)]. We review legal determinations de novo ,3 subject to the principles of de ference articulated in Chevron v. Natural Res. Def. Council , 467 U.S. 837, 844 (1984). See Briseno

- Flores v. Att = y Gen. , 492 F.3d 226, 228 (3d Cir. 2007). We review the BIA = s decision to deny Chen = s motion to reopen for abuse of discretion. 1 See Guo v. Ashcroft , 386 F.3d 556, 562 (3d Cir. 2004). We give the BIA = s decision A broad deference, @ see Ezeagwuna v. Ashcroft , 325 F.3d 396, 409 (3d Cir. 2003), and will uphold it unless it was A arbitrary, irrational, or contrary to law. @ Tipu v. INS
A. , 20 F.3d 580, 582 (3d Cir. 1994).

Generally, an individual may apply for asylum only once, and must do so within one year of arriving in the United States. See

Chen argues that INA ' 208 permits an applicant to file a second or successive asylum application based upon changed personal circumstances, such as the birth of United States citizen children. She contends that such a successive asylum application may be filed at any time after entry of a final removal order, without mee ting the requirements that generally apply to motions to reopen immigration proceedings. INA ' ' 208(a)(2)(B), (C) [8 U.S.C.

' ' 1158(a)(2)(B), (C)]. However, the INA permits an exception A if t he alien demonstrates . . . the existence of changed circumstances which materially affect that applicant = s eligibility for asylum. . . . @ INA ' 208(a)(2)(D) [8 U.S.C. ' 1158(a)(2)(D)].

See

1 Chen does not dispute the BIA = s affirmance of t he IJ = s decision dismissing her motion for lack of jurisdiction. We therefore need not address the issue because it is waived. See Voci v. Gonzales , 409 F.3d 607, 610 n.1 (3d Cir. 2005).4 INA ' 240(c)(7) [8 U.S.C. ' 1229a(c)(7)] (generally permitting one motion to reopen, to be filed within ninety days of the final removal order, unless the motion is based upon changed country conditions); 8 C.F.R. ' 1003.2(c)(2) (same). Consistent with its precedent, the BIA rejected Chen = s proposed approach. See , e.g. , In re: C

- W

- L

We accept the BIA = s approach. As we held in , 24 I&N Dec. 346, 351 (BIA 2007). The BIA concluded that, in order to read the provisions concerning successive asylum applications in harmony with the provisions concerning motions to reopen without rendering any portion of either statute superfluous, A Section 208(a)(2)(D) of the Act does not provide an independent basis for filing a late motion to reopen to apply for asylum without the showing of changed country conditions required by section 240(c)(7)(C) of the Act. @ BIA Decision at 2. Liu v. Att = y Gen. , 555 F.3d 145, 150 (3d Cir. 2009 ), A we defer to the BIA = s construction of the INA . . . that after completion of removal proceedings an alien must file an asylum application in conjunction with a motion to reopen and must meet the time and numerical limitations on motions to
reopen. @ Se e also , e.g. , Yuen Jin v. Mukasey , 538 F.3d 143, 151 (2d Cir. 2008) ( A

[C]hanged personal circumstances are insufficient to excuse an alien from the procedural requirements of a motion to reopen. @ ). Chen is subject to a final removal order and missed the n inety

- day deadline for filing a motion to reopen. See INA

' 240(c)(7)(C)(iii) [8 U.S.C. ' 1229a(c)(7)(C)(iii)]. Accordingly, the BIA appropriately rejected Chen = s motion to file a successive asylum application based solely upon changed5 personal circumsta nces without also meeting the requirements for filing an untimely motion to reopen. See Liu

B. , 555 F.3d at 150; INA

_ 240(c)(7)(C)(ii) [8 U.S.C.

' 1229a(c)(7)(C)(ii)].

Because she alternatively captioned her filing as a motion to reopen her removal
pro ceedings, the BIA appropriately considered whether Chen successfully met the requirements for a motion to reopen. See Zheng v. Att = y Gen. , 549 F.3d 260, 267

- 68 (3d Cir. 2008). To prevail on her otherwise untimely motion to reopen, Chen was required to sh ow A changed circumstances arising in the country of nationality @ through evidence that A

is material and was not available and could not have been discovered or presented at the previous hearing, @ which was held before the IJ in April 2001. See

The BIA considered whether Chen = s evidence supported a claim that conditions had materially changed for families returning to China with multiple children born outside of China. 8 C.F.R.

' 1003.2(c)(3)(ii).

2

2 In her motion, Chen did not argue materially changed country conditions. Instead, she relied exclusively on her changed personal circumstances and argued that she should be entitled to reopening of her proceedings based upon an A implicit changed personal circumstances exception @ to the time limitation for reopenin g, and upon equitable tolling. We find no error in the BIA = s decision to reject both of these arguments. See BIA Decision at 2. As evidence in support of her motion, Chen provided the following: (1) a March 1995 INS profile entitled A Family Planning Policy and Practice in the6 People = s Republic of China @ ; (2) a 2005 article entitled A Hong Kong Pregnant woman Almost Had Forcible Abortion While Visiting Hunan Province @ ; (3) a 2003 A

Announc ement of the Fall family Planning Campaign @ issued by Jieshi Township; and (4) two affidavits, dated may 2004 and January 2005, by demographer John Aird. See

The BIA adequately considered Chen = s proffered evidence and concluded that it was insu fficient to establish the necessary material change in the Fujian province coercive population control policy since Chen = s last hearing in 2001. A.R. 37.

Cf. , Zheng , 549 F.3d at 268

- 69. Citing its precedent, the BIA concluded that the majority of Chen = s supportin g evidence, most particularly the Aird affidavits, had been previously considered and rejected as insufficient to demonstrate changed country conditions. See , e.g. , Matter of J

W

- S

- , 24 I&N Dec. 185, 191

- 92 (BIA 2007); Matter of C

- C

After a careful review of the record, we conclude that substantial evidence supports the BIA = s finding tha t Chen = s documentary evidence did not establish materially changed circumstances warranting reopening of her case. , 23 I&N Dec. 899, 901

- 02 (BIA 2006). The BIA did not find Chen = s remaining evidence persuasive, and therefore concluded that she did not meet the standard for reopening.

3

3 In her motion, Chen relied upon our decision in Guo v. Ashcroft , 386 F.3d 556 (3d Cir. 2004), wherein we found that reo pening was warranted based upon the alien = s personal change in circumstances ( i.e. , the birth of one child and a verified second pregnancy) and documented evidence, including the Aird affidavit, which was sufficient to establish prima facie eligibility for asylum. However, as the BIA correctly concluded, Given the date of the 19957 INS profile, this document clearly could have been discovered or presented at the previous hearing in April 2001

. See 8 C.F.R.

_ 1003.2(c)(3)(ii). The 2003 family planning document and the 2005 news article concern provinces other than Fujian Province (specifically, Hunan Province and Jieshi Township in Guangdong Province). Moreover, we fail to see that they cont ain any information sufficiently convincing to overcome the BIA = s conclusion, based upon recent State Department Reports, that the Chinese government does not have a national policy of requiring forced sterilization of a parent returning with children born outside of China. See Matter of J

- W

- S

- , 24 I&N Dec. at 191. Finally, the value of the Aird affidavits repeatedly has been called into serious question both by this Court and by the BIA. See Zheng , 549 F.3d at 267 n.4 ( A We have rejected Aird = s position, as has the BIA. @ (citations omitted)). 4

see BIA Decision at 2, n.1, Guo is distinguishable because the applicant timely filed a motion to reopen, and therefore was not limited by the A changed country conditions @ exception set forth in 8 C.F.R. ' 1003.2(c)(3)(ii).

4 See also Liu v. Att = y Gen. , 555 F.3d 145, 149

- 50 (3d Cir. 2009) (quoting the BIA = s finding in J

- W

- S

- that A the Chinese government does not have a national policy of requiring forced sterilization of a parent who returns with a se cond child born outside of China. @ ); Yu v. Att = y Gen. , 513 F.3d 346, 349 (3d Cir. 2008) (upholding the BIA = s conclusion that asylum applicants = claim relying upon the Aird affidavit was undermined by information in recent State Department Reports, which co nstitute substantial evidence); Matter of J

- W

- S

- , 24 I&N at 189

- 90 (BIA 2007) ( A We therefore find that the evidence of record [primarily, two Aird affidavits] does not demonstrate that the Chinese Government has a national policy of requiring forced steril ization of parents who return with a second child born outside of China. @ ); In re C

- C

- , 23 I&N Dec. at 902

- 03 (concluding, inter alia , that A the affidavit . . . contains no evidence that returnees have been sterilized @ and that the 2005 State Department Re port contradicts and is more persuasive than the Aird affidavit)8 In her appellate brief, Chen attempts to bolster her claim by relying upon information in a 2005 State Department Country Report. That report does not appear in the administrative record; accordingly, we may not consider it. 5 See INA ' 242(b)(4)(A) [8 U.S.C. ' 1252(b)(4)(A)]; Berishaj v. Ashcroft , 378 F.3d 314, 331 (3d Cir. 2004) ( A It is a salutary principle of administrative law review that the reviewing court act upon a closed record. @ ). We note, however, tha t we have previously upheld the BIA = s conclusion that the 2005 State Department Report contradicts the Aird affidavit and sets forth substantial evidence that may undermine a petitioner = s asylum claim based upon coercive
f

amily planning practices in China. See , e.g. , Yu , 513 F.3d at 348

- 49; see also In re: C

- C

Based upon the meager supporting evidence that Chen supplied, we cannot conclude that the BIA abused its discretion in denying the motion to reopen. , 23 I&N Dec. at 902 ( A We also note that the latest documents on country conditions issued by the State Department [in 2005] conflict with the views of Dr. Aird. @ ).

6

5 While we have specifically called upon the BIA to consider current country information where possible so that our Court may avoid review of administrative records A

so out

- of

- date as to verge on meaningless, @ we have not adopted the approach of considering new state department country reports if they were not considered by the BIA in the first instance. See Berishaj , 378 F.3d at 329

- 30.

6 We note that the Court of Appeals for the S econd Circuit has upheld a BIA decision denying a motion to reopen supported by substantially stronger evidence of relevant country conditions than Chen presented here, including government documents issued by Fujian Province concerning enforcement of its family planning policies. See Shao v. Mukasey , 546 F.3d 138, 170

- 71 (2d Cir. 2008)9 III. Conclusion For the foregoing reasons, we will deny the petition for review.