NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13-1945

____________

SHAN EN ZHANG; 

JUAN CHEN, 

a/k/a

KO-MIN TSAO,

 Petitioners 

 

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency Nos. A089-252-304 & A095-710-240)

Immigration Judge: Alberto J. Riefkohl

Submitted under Third Circuit LAR 34.1(a)

on November 7, 2013

Before: GREENAWAY, Jr., VANASKIE and ROTH, Circuit Judges

 

(Opinion filed: December 13, 2013)

O P I N I O N 

ROTH, Circuit Judge:
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Shan En Zhang and his wife Juan Chen seek review of a final order of removal 

rendered by the Board of Immigration Appeals (BIA) denying a motion to reopen their 

proceeding. We will deny the petition for review.

I. Background

Petitioners, Zhang and Chen, are citizens of the People’s Republic of China. Chen 

entered the United States without valid documents on May 29, 2005, and was subject to

removal proceedings after the Department of Homeland Security issued a Notice to 

Appear under the Immigration & Nationality Act (INA), 8 U.S.C. § 1182(a)(7)(A)(i)(1). 

Zhang arrived in the United States on August 4, 2007, also without valid entry 

documents, after being smuggled from China. Petitioners subsequently met in the United 

States and registered their marriage in New York on December 12, 2007. The 

Immigration Judge (IJ) consolidated the cases for Zhang and Chen, who had both applied 

for asylum, withholding of removal, and relief under the Convention Against Torture 

(CAT), claiming persecution by Chinese authorities for their practice of Falun Gong.

At the merits hearing, Zhang claimed that he departed China after Chinese 

authorities detained and beat him for his practice of Falun Gong. Chen stated that she 

began her practice of Falun Gong after meeting Zhang and that together they attended 

Falun Gong demonstrations to protest China’s suppression of Falun Gong. On June 16, 

2008, the IJ issued an oral decision, finding that Zhang failed to sufficiently corroborate 

his claims and that Chen lacked evidence to support her claims. The IJ denied 

Petitioners’ applications. On October 30, 2009, the BIA dismissed their appeal.
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On December 30, 2009, Petitioners concurrently filed their first motion to reopen 

before the BIA, claiming that they have a well-founded fear of future persecution because 

certain Chinese residents in America discovered Zhang’s involvement in Falun Gong and 

reported his activities in China. Zhang contended that government cadres had confronted

his parents about his Falun Gong involvement and told them that Zhang must return to 

China for punishment. In addition, Petitioners requested that the October 30, 2009, BIA 

decision be reissued. On April 27, 2010, the BIA reissued its decision and denied the 

motion to reopen. We denied Petitioners’ appeal on April 15, 2011. Zhang v. Att’y Gen., 

423 Fed. Appx. 243 (3d Cir. 2011).

The instant proceedings concern Petitioners’ second motion to reopen, filed on 

October 2, 2012, in which Petitioners argued that their motion should not be barred by 

the 90-day time requirement because they can show that country conditions have 

worsened in China for Falun Gong practitioners. Chen argued to the BIA that Chinese 

authorities visited her mother in China, where they cautioned her that Chen must return to 

China for severe punishment. Petitioners submitted additional evidence in support of 

their motion to reopen, including a local village notice stating that Chinese authorities 

will punish Chen for her Falun Gong participation, an affidavit from Chen’s mother 

averring the same, a 2007 asylum report from the U.S. Department of State, and several 

news articles regarding Falun Gong punishment in China.

On March 15, 2013, the BIA found that Petitioners’ evidence was insufficient to 

establish that treatment of Falun Gong practitioners had materially changed to excuse the 

untimely and number-barred motion to reopen. First, “[t]o the contrary, the background 
4

evidence reflects that Falun Gong was banned by the Chinese government in July 1999 

prior to respondent’s June 2008 hearing,” and that any continuing mistreatment “does not 

reflect a material change in circumstances, but rather, a continuation of practices that 

have existed for many years in China.” Second, the BIA found that the evidence 

submitted in support of “changed circumstances” was speculative and unauthenticated. 

Finally, with respect to Chen, the BIA determined “that she began practicing Falun Gong 

in 2008, which is a change in personal circumstances that does not constitute a change 

‘arising in’ China” to meet the exception to the 90-day time limit. 

II. Analysis

A motion to reopen before the BIA must be filed within 90 days after the date of 

the final administrative decision “in the proceeding sought to be reopened.” 8 C.F.R. § 

1003.2(c)(2). The 90-day time limit, however, does not apply where the motion to 

reopen is “based on changed circumstances arising in the country of nationality or in the 

country to which deportation has been ordered, if such evidence is material and was not 

available and could not have been discovered or presented at the previous hearing . . ..” 8 

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

Zhang and Chen have petitioned for review of the BIA’s denial of their motion to 

reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s 

denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. 

v. Doherty, 502 U.S. 314, 323 (1992); Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 

2002). The BIA’s factual determinations must be upheld if “supported by reasonable, 

substantial, and probative evidence on the record considered as a whole.” Immigration & 
5

Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotations 

omitted); Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004).

Because Petitioners’ motion to reopen was not filed with the BIA within 90 days 

of the April 27, 2010, decision and the evidence presented did not support changed 

conditions in China, the BIA did not abuse its discretion in denying their motion to 

reopen the proceedings. The BIA’s determination that Petitioners failed to demonstrate

changed country conditions in China is supported by substantial evidence, which shows

not that China’s treatment of Falun Gong practitioners has worsened but that, after the 

merits hearing, China’s response to Falun Gong has remained constant. Zheng v. Att’y 

Gen., 549 F.3d 260, 266 (3d Cir. 2008). Moreover, the affidavit and village notice were 

not authenticated and otherwise do not indicate punishment for Falun Gong practitioners 

that is more severe than at the time of the merits hearing.

Moreover, as to Chen, the only change in circumstances that she could 

demonstrate was her adoption of Falun Gong, which she contends began when she met 

her husband in the United States. We have held, however, that such a change in 

“personal circumstances” does not constitute a change in country conditions in China to 

excuse an alien from complying with a time limit on a motion to reopen under § 

1003.2(c)(3)(ii). Liu v. Att’y Gen., 555 F.3d 145, 149-51 (3d Cir. 2009). Accordingly, 

for the foregoing reasons, we will deny the petition for review.