NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4144

___________

XIU JIN YU; YONG SHENG LIU,

Petitioners

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A079-458-432 and A079-309-522)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 25, 2011

Before: BARRY, HARDIMAN and COWEN, Circuit Judges

(Opinion filed: May 25, 2011)

___________

OPINION

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PER CURIAM
2

Petitioners, Xiu Jin Yu and Yong Sheng Liu (collectively, “petitioners”), natives 

and citizens of the People’s Republic of China, petition for review of the Board of 

Immigration Appeals’ (“BIA”) order denying their motion to reopen. For the following 

reasons, we will deny their petition.

I.

Liu entered the United States on April 11, 2001, and the Immigration and

Naturalization Service (“INS”) served him with a Notice to Appear and placed him in 

removal proceedings in June 2001. Yu, Liu’s wife and the lead petitioner, arrived on 

August 1, 2002, and the INS placed her in removal proceedings in August 2002. Both 

petitioners conceded removability, but sought asylum, withholding of removal, and 

protection under the Convention Against Torture. The petitioners feared returning to 

China, arguing that they would be forcibly sterilized for violating the one-child policy. 

Specifically, the couple believed they were at risk because they had a second child while 

residing in the United States.

In March 2005, following a merits hearing, the Immigration Judge (“IJ”) ruled that

the petitioners failed to establish eligibility for any form of relief, and ordered them 

removed to China. The BIA adopted and affirmed the IJ’s decision. The petitioners

sought review in this Court and we denied their petition in January 2008. See Yu v. Att’y 

Gen. of the U.S., 513 F.3d 346, 349 (3d Cir. 2008). In April 2008, petitioners filed a 

motion to reopen based on the birth of a third child and an alleged mistranslation of a
3

2002 family planning regulation from Fujian Province appended to State Department 

Asylum Profiles. The BIA denied the motion, and this Court denied a petition for review.

In February 2010, the petitioners filed a second motion to reopen arguing changed 

country conditions. They submitted hundreds of pages of documents, which, they 

asserted, establish that local government officials in Fujian Province utilize a policy of 

forced sterilization that is more severe than it was at the time of the petitioners’ IJ 

hearing. The BIA denied the motion to reopen as time-barred and number-barred under 

the applicable regulations. This petition for review followed.

II.

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

the petitioners’ motion to reopen, and we apply the abuse of discretion standard to our 

review. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Thus, to succeed on 

their petition for review, the petitioners must show that the BIA’s decision was “arbitrary, 

irrational, or contrary to law.” Id. (quotation marks and citation omitted).

An alien generally may file only one motion to reopen and must file it with the 

BIA “no later than 90 days after the date on which the final administrative decision was 

rendered[.]” 8 C.F.R. § 1003.2(c)(2). The time and number requirements are waived for 

motions to reopen that rely on evidence of “changed circumstances arising in the country 

of nationality . . . 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). 

Petitioners argue that they meet this exception as to the time and number restrictions.
4

Petitioners submitted voluminous documentary evidence that included the 

petitioners’ and their children’s birth certificates, petitioners’ marriage certificate, a 1997 

Reply to Issues of Determination of Nationality, a 2003 Administrative Decision of the 

Fujian Province Family Planning Administration, the opinion of Dr. Flora Sapio 

regarding China’s family planning laws, accounts of Chinese nationals being subjected to

coercive family planning practices, research articles and media reports, and various other 

documents.

Petitioners argue that the BIA abused its discretion by not fully considering and 

analyzing the documentary evidence. The BIA must provide the Court “with more than 

cursory, summary or conclusory statements, so that we are able to discern the reasons for 

declining to afford relief to a petitioner.” Zheng v. Att’y Gen. of the U.S., 549 F.3d 260, 

268 (3d Cir. 2008) (citation omitted). The BIA need not, however, “parse or refute on the 

record each individual . . . piece of evidence offered by the petitioner . . . .” Id. (citation 

omitted).

Here, although the BIA’s opinion did not individually analyze each of the many 

documents in the record, the BIA’s analysis was sufficient under the Zheng standard. 

The BIA first named all of the documents submitted by the petitioners in support of the 

motion. The BIA then concluded that of those documents, the foreign documents were 

not properly authenticated in compliance with 8 C.F.R. § 1287.6. See Liu v. Ashcroft, 
5

372 F.3d 529, 532-33 (3d Cir. 2004).1 Other documents were incomplete. The BIA

pointed out that still other documents were already addressed in different BIA opinions

that concluded the evidence did not establish that China has a national policy of requiring 

the forced sterilization of a parent who returns with children born outside of China.

2

 

Thus, the BIA concluded that although there was voluminous documentary evidence 

submitted, that evidence did not go far enough in establishing changed country 

conditions.

The BIA also concluded that evidence in the record showed that conditions had 

not changed since the petitioners’ IJ hearing. In particular, the BIA referenced the May 

2007 Profile of Asylum Claims and Country Conditions (“Asylum Profile”). Petitioners

argued that the Asylum Profile was unreliable and should not serve as a basis for the 

 

1

In their motion to reopen, the petitioners argued that certain of the foreign 

documents were clearly authentic because they came from the Chinese government’s 

official websites. The petitioners, however, do not contest the BIA’s conclusion 

regarding the documents’ authenticity in their petition for review. Even if the petitioners 

are correct that certain of the foreign documents are authentic, it does not change our 

conclusion that the BIA adequately analyzed the documentary evidence in reaching a 

decision.

2

See In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 213 (BIA 2010) (explaining 

that State Department reports on country conditions are highly probative evidence); In re 

S-Y-G-, 24 I. & N. Dec. 247, 248 n.1 (BIA 2007) (denying a motion to reopen that 

included as evidence the Nationality Law of the People’s Republic of China, the 1999 

Changle City Family Planning Q & A, 2003 Fujian Province Administrative Decision, 

and the 2003 Changle City Administrative Opinion); In re J-W-S-, 24 I. & N. Dec. 185, 

189-90 (BIA 2007) (denying a motion to reopen that incorporated the testimony of 

demographer John Aird); In re J-H-S-, 24 I. & N. Dec. 196, 201-03 (BIA 2007) (denying 

motion to reopen after taking account of State Department reports and 1999 Changle City 

Family Planning Q & A); In re C-C-, 23 I. & N. Dec. 899, 900-04 (BIA 2006) (analyzing 

the Aird affidavit in its denial of motion to reopen).
6

BIA’s conclusions.3 The BIA analyzed and rejected the argument, concluding that 

petitioners’ bare assertions and the opinion of Dr. Sapio4 were insufficient to undermine 

the Asylum Profile’s conclusions. In light of the Asylum Profile, the BIA determined

that the petitioners’ evidence was insufficient to establish that Yu or Liu would face 

forcible sterilization, and thus insufficient to establish changed country conditions.

This Court recently reiterated that State Department reports are afforded high 

probative value, and that the BIA is justified in relying on such reports rather than more

questionable evidence presented by those seeking a motion to reopen. See Chen v. Att’y 

Gen. of the U.S., No. 09-3459, 2011 WL 923353, at *4 (3d Cir. Mar. 18, 2011) (“State 

Department reports may constitute substantial evidence.”) (quotation marks and citation 

omitted). Accordingly, the BIA properly relied on the Asylum Profile in concluding that 

the petitioners failed to show changed country conditions. Based on the above, we 

conclude that the BIA adequately analyzed the petitioners’ evidence and did not abuse its 

discretion in denying their motion to reopen.

Petitioners also argue that the IJ erred in denying them relief, and that we should 

rule on the issue of whether having children in the United States standing alone can 

provide a basis for asylum regardless of the particular facts of a case. To the extent that 

the petitioners challenge the IJ’s ruling, the instant petition for review is not a means to 

 

3

Similar arguments were rejected by this Court in relation to the petitioners’ first 

motion to reopen. See Yu v. Att’y Gen. of the U.S., 346 F. App’x 793, 795-96 (3d Cir. 

2009) (per curiam).

4

Petitioners alleged that Dr. Sapio is a “China expert.” The BIA found that Dr. 
7

relitigate the original removal proceedings. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 

2005) (per curiam). To the extent that the petitioners attempt to raise a legal question 

regarding when circumstances are sufficient to establish asylum eligibility based on 

China’s family planning policy, the issue was not raised in the motion to reopen, and we 

cannot now consider it in the first instance. See Popal v. Gonzales, 416 F.3d 249, 252-53 

(3d Cir. 2005) (“An alien must exhaust all administrative remedies available to him . . . 

.”).

5

Based on the above, we conclude that the BIA did not abuse its discretion by 

denying the petitioners’ motion to reopen as untimely and number-barred. Accordingly, 

we will deny the petition for review.

 

Sapio’s opinion was not entitled to be weighed as that of an expert.

5 We note that in their motion to reopen, the petitioners also argued changed 

country conditions due to more severe economic sanctions as part of China’s family 

planning policy. The BIA rejected the argument. To the extent that the petitioners allege 

the BIA’s analysis was wanting, we conclude that the analysis was sufficient under 

Zheng.