1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3066

___________

YAN YUN YE,

a/k/a Zhang Jian Fen,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A075-809-257)

Immigration Judge: Honorable Frederic G. Leeds

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 8, 2012

Before: FUENTES, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: March 14, 2012)

___________

OPINION

___________

PER CURIAM

Yan Yun Ye, a citizen of the People’s Republic of China, petitions for review of 

the Board of Immigration Appeals’ order denying her motion to remand and dismissing 
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her appeal of the Immigration Judge’s order denying her motion to reopen. We will deny 

the petition for review.

Ye attempted to enter the United States on April 12, 1998, and was placed in 

removal proceedings. On June 3, 1998, she applied for asylum and appeared before an 

Immigration Judge (IJ), and on March 31, 1999, the IJ ordered Ye removed to China in 

absentia when she failed to appear at a scheduled hearing. Ye did not seek review, 

ignored the order of removal, remained in the country, married, and had two children 

with her husband, who is also a Chinese national.

Nearly eight years later, on March 15, 2007, Ye filed a motion to reopen her 

proceedings before the IJ. Under the applicable regulations, a motion to reopen “must be 

filed within 90 days of the date of entry of a final administrative order.” 8 C.F.R. 

§ 1003.23(b)(1). An exception exists, however, for motions to reopen “based on changed 

country conditions 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 

proceeding.” Id. § 1003.23(b)(4); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). Ye argued that 

her motion to reopen was not time-barred because conditions had changed in the Fujian 

Province of China, the place to which she would be deported. Ye claimed that, if 

removed, she was likely to be sterilized or receive an onerous fine because she had 

violated China’s family-planning rules by having two children. 

The IJ denied this motion, and the Board of Immigration Appeals (BIA) dismissed 

Ye’s appeal. Ye then timely filed a petition for review. We granted the petition, vacated 
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the BIA’s order, and remanded the case to the BIA, holding that the BIA had neglected to 

show that it had considered Ye’s evidence, and had thus failed to meet the standards we 

articulated in Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2008). See Ye v. Att’y 

Gen., 383 F. App’x 113, 118 (3d Cir. 2010).

On remand, Ye filed a motion to remand the case to the IJ and submitted 

additional evidence that she contended established changed country conditions. The BIA 

dismissed Ye’s appeal and denied her motion to remand, holding that Ye had failed to 

present material evidence establishing changed country conditions.1

We have jurisdiction under 8 U.S.C. § 1252(a)(1), and review the agency’s denial 

of Ye’s motions — both of which, for purposes of this opinion, will be treated as motions 

to reopen, see Huang v. Att’y Gen., 620 F.3d 372, 389 (3d Cir. 2010) (explaining that the 

“BIA treats a motion to remand for the purpose of submitting additional evidence in the 

same manner as motions to reopen the record”) — for abuse of discretion. See Borges v. 

Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Motions to reopen are “plainly 

disfavor[ed],” because “[t]here is a strong public interest in bringing litigation to a close 

as promptly as is consistent with the interest in giving the adversaries a fair opportunity 

to develop and present their respective cases.” INS v. Abudu, 485 U.S. 94, 107, 110

 Ye again filed a 

petition for review. She also filed a motion to stay her removal pending our review, 

which we granted.

 1 In its initial decision, the BIA also held that Ye was ineligible to reopen proceedings 

pursuant to the fugitive-disentitlement doctrine, but did not rely on that ground in its 
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(1988). The BIA’s decision is thus entitled to “broad deference,” Ezeagwuna v. 

Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003) (internal quotation marks omitted), and it 

“will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law,”

Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (internal quotation marks omitted).

When we previously remanded Ye’s petition for BIA review, we did not suggest 

that the BIA had reached the wrong result; rather, we faulted the BIA for “rely[ing] on its 

prior decisions without satisfying itself that Ye’s evidence was in fact the same as, or 

substantially similar to, the evidence rejected in [previous] cases.” Ye, 383 F. App’x at 

118. On remand, the BIA listed and painstakingly considered each piece of evidence of 

changed country conditions that Ye had submitted. Thus, the BIA unquestionably

complied with our requirement that it “explicitly consider [the] country conditions 

evidence submitted by [Ye].” Zheng, 549 F.3d at 268 (quotation omitted). 

Moreover, we discern no error in the BIA’s evaluation of Ye’s evidence. The BIA 

concluded that the bulk of Ye’s evidence — such as a Consular Information Sheet, 

several State Department Country Reports, and a report from the CongressionalExecutive Commission on China — although suggesting that there had been episodic 

incidents of forced sterilization in China, failed to establish that there had been a change

in country conditions since the time of Ye’s initial hearing. To invoke the exception to 

the 90-day time limit to file a motion to reopen, it was incumbent upon Ye to show 

 

decision that is now before this Court. 
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changed country conditions, and we agree with the BIA that these documents do not help 

her cause. 

The BIA further concluded that much of Ye’s evidence was not material to her 

case because it concerned individuals who had not given birth overseas and then returned 

to China or who lived in different parts of China. The BIA’s analysis of this evidence 

was entirely reasonable. See generally Chen v. Att’y Gen., -- F.3d ---, 2011 WL 923353, 

at *4 (3d Cir. Mar. 18, 2011) (ruling that substantial evidence supported IJ’s conclusion 

that petitioners’ American-born children would not be considered Chinese citizens and 

thus not be counted for purposes of the family-planning rules); Yuan v. Att’y Gen., 642 

F.3d 420, 426 (3d Cir. 2011) (holding that substantial evidence supported BIA’s 

determination that evidence unrelated to birth-control policies in petitioner’s native 

province was inapposite). 

The BIA further noted that many of Ye’s documents were incomplete or

unauthenticated. It was reasonable for the BIA to discount these documents on this basis. 

See Chen, 2011 WL 923353, at *4. Finally, it was not an abuse of discretion for the BIA 

to essentially dismiss Ye’s affidavit as unreliable because it was based solely on secondhand knowledge that was not otherwise supported by the record. See Gramatikov v. INS, 

128 F.3d 619, 620 (7th Cir. 1997). 

Our recent decision in Chen, although arising in a different procedural posture, 

lends further support to the BIA’s decision. In Chen, the petitioners, a married couple 

from the Fujian Province, sought relief because they had two U.S.-born children, and 
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they claimed to fear forced sterilization and economic penalties should they return to 

China. 2011 WL 923353, at *2. In affirming the BIA’s decision and rejecting the 

petitioners’ claims, we determined that In re H-L-H-, 25 I. & N. Dec. 209 (BIA 2010),

was “persuasive[],” Chen, 2011 WL 923353, at *2, in its conclusion that “‘physical 

coercion to achieve compliance with family planning goals is uncommon and 

unsanctioned by China’s national laws and that the overall policy is much more heavily 

reliant on incentives and economic penalties,’” and that those economic penalties were 

not sufficiently severe to constitute persecution, id. at *3 (quoting In re H-L-H-, 25 I. & 

N. Dec. at 218.). That description of the family-planning policies currently in effect is 

entirely consistent with the description of the policies in the 1999 State Department 

Report, and accordingly, it was reasonable for the BIA to conclude that Ye had failed to

show that the conditions in China have materially changed since her initial 1999 hearing. 

In view of the record as a whole, we cannot say that BIA’s review of Ye’s 

evidence of changed country conditions was arbitrary, irrational, or contrary to law. 

Accordingly, we will deny Ye’s petition for review. Further, the stay of removal we 

previously granted is vacated.