Jin Chen v. Holder , 526 F. App'x 85 ( 2013 )

10-3520-ag
Chen v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 29th day of April, two thousand thirteen.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
Circuit Judges,
JANE A. RESTANI,
Judge.*
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JIN CHEN, AKA Jin Song Chen,
Petitioner,
-v- 10-3520-ag
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.**
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FOR PETITIONER: JOSHUA E. BARDAVID, Law Office of
Joshua E. Bardavid (Cora J. Chang,
*
The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
**
The Clerk of Court is directed to amend the official
caption to conform to the above.
Law Office of Cora J. Chang, on the
brief), New York, New York.
FOR RESPONDENT: STEFANIE SVOREN-JAY, Trial Attorney
(John S. Hogan, Senior Litigation
Counsel, Robbin K. Blaya, Trial
Attorney, on the brief), Office of
Immigration Litigation, for Tony
West, Assistant Attorney General,
United States Department of
Justice, Washington, District of
Columbia.
UPON DUE CONSIDERATION of this petition for review of
a Board of Immigration Appeals ("BIA") decision, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the petition for review is
GRANTED, the BIA decision is AFFIRMED in part and REVERSED in
part, and the case is REMANDED to the BIA with directions to
reopen the proceedings.
Petitioner Jin Chen, a native and citizen of the
People's Republic of China, seeks review of an August 12, 2010
order of the BIA denying his motion to reconsider and reopen his
removal proceedings. By decision dated November 13, 2009, the
BIA had affirmed the January 22, 2008 order and decision of the
Immigration Judge ("IJ") denying Chen's application for asylum
and withholding of removal and relief under the United Nations
Convention Against Torture ("CAT"). Chen asserts that he should
be granted asylum because of past persecution or a well-founded
fear of future persecution on the basis that he will be subject
to forced sterilization upon his return to China. We assume the
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parties' familiarity with the facts and procedural history of
this case.
1. Applicable Law
We review the BIA's denial of a motion to reconsider or
reopen for abuse of discretion and will find such abuse if "the
[BIA]'s decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements; that is to say,
where the [BIA] has acted in an arbitrary or capricious manner."
Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir.
2001) (internal citations omitted).
A motion to reconsider must specify errors of fact or
law in the BIA's decision and be supported with pertinent
authority. 8 C.F.R. § 1003.2(b)(1); see Ke Zhen Zhao, 265 F.3d
at 90. "The BIA does not abuse its discretion by denying a
motion to reconsider where the motion repeats arguments that [it]
has previously rejected." Jin Ming Liu v. Gonzales, 439 F.3d
109, 111 (2d Cir. 2006) (per curiam). A motion to reopen
proceedings to admit new evidence shall be granted only if it
appears to the BIA that the "evidence sought to be offered is
material and was not available and could not have been discovered
or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1).
An alien applying for asylum based on a well-founded
fear of future persecution must establish both an objectively and
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subjectively reasonable fear of future persecution. See Gomez v.
INS, 947 F.2d 660, 663 (2d Cir. 1991). The alien must "present
credible testimony that he subjectively fears persecution and
establish that . . . a reasonable person in the petitioner's
circumstances would fear persecution if returned to his native
country." Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir.
2005) (per curiam) (quotation omitted); see 8 C.F.R.
§ 208.13(b)(2).
2. Application
We hold that the BIA did not abuse its discretion in
denying Chen's motion to reconsider. In his original appeal to
the BIA, Chen made two arguments: (1) he had suffered past
persecution based on the implantation of an intrauterine device
("IUD") in his wife as well as his complaints to the Family
Planning Officials about the resultant complications; and (2) he
had a well-founded fear of future persecution because he believed
he would be forcibly sterilized upon his return to China. The
BIA rejected both arguments and dismissed Chen's appeal. In his
motion to reconsider, Chen repeated the same arguments he raised
in his original appeal, without raising new arguments or
identifying a change in the law. Thus, we conclude that the BIA
did not abuse its discretion in denying Chen's motion to
reconsider.
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We hold, however, that the BIA abused its discretion in
denying the motion to reopen.
First, it was error for the BIA to conclude that Chen's
additional documentary evidence was not "new" because the
documents "predate[d] [its] decision by at least a year." In the
context of a motion to reopen, the BIA must consider new evidence
that was unavailable at the time of the IJ hearing. See Norani
v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006) (per curiam) (date
on which IJ closed hearing is date before which evidence must
have been unavailable, undiscoverable, or unpresentable). In
declining to consider the evidence here, the BIA reasoned that
"virtually all of the information in the [documents] describe
events that occurred well before the hearing [on January 22,
2008] and could have been presented to the [IJ]." To the
contrary, however, letters from Chen's father and wife describe
events that occurred after the IJ hearing, including the raiding
of the father's home on Chinese New Year's Eve in February 2008
by ten government officials, and the government's increased
efforts to apprehend Chen's wife later that year. The Birth
Control Notice and the summons were dated March 3, 2008 and April
14, 2008, respectively, both subsequent to the IJ hearing. Thus,
the additional evidence was indeed "new."
Second, the BIA faulted Chen for "not having filed a
motion to remand while the appeal was pending." The relevant
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regulation, however, does not impose a time limit for filing a
motion to reopen proceedings to present evidence that could not
have been presented at the IJ hearing. Norani, 451 F.3d at 294 &
n.3 (citing 8 C.F.R. § 1003.2(c)(1)).
Third, although the BIA also concluded that the
additional documents, "even if considered reliable and authentic,
are not new, material evidence warranting reopening," we conclude
that "the BIA did not adequately engage with the facts or the
political context of [Chen]'s activities." Ruqiang Yu v. Holder,
693 F.3d 294, 298 (2d Cir. 2012). The BIA's decision does not
discuss the facts presented by the new evidence at all, as the
BIA concludes in wholly conclusory language that the evidence
does not "warrant reopening." The BIA abuses its discretion if
it fails to give reasoned consideration to evidence presented by
a petitioner, see Zhi Yun Gao v. Mukasey, 508 F.3d 86, 88 (2d
Cir. 2007) (per curiam), and, under the circumstances here,
particularly where the BIA incorrectly stated that the events
identified by Chen occurred "well before" the IJ hearing, we are
not confident that the BIA adequately considered the new
evidence.
Chen's new evidence, if credited, would establish that
his wife, who had been living in hiding since the birth of their
second daughter, visited his father's home on the eve of the
Chinese Lunar New Year in 2008, which corresponds to February 6,
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2008 on the Western calendar; that shortly after she departed,
ten government officials raided his father's home, during the
most important local holiday, in search of the couple; that the
local family planning office issued the Birth Control Notice on
March 3, 2008, which ordered Chen to appear for a "contraceptive
procedure" by March 13 or be responsible for any consequences;
and that, after Chen did not appear for the procedure, the Fuzhou
City Public Security Bureau issued a summons on April 14, 2008,
ordering Chen, without giving further reason, to appear at a
local police precinct on April 28. The new evidence suggests
that the government officials' pursuit of Chen intensified in the
weeks after the IJ hearing.
We remand to the BIA to reopen the proceedings to give
full consideration to Chen's evidence and determine whether he
has presented sufficient evidence to support an objectively
reasonable fear of future persecution. See, e.g., Li Young Cao
v. U.S. Dep't of Justice, 421 F.3d 149, 151-52, 158 (2d Cir.
2005) (petitioner established objectively reasonable fear of
future persecution by presenting evidence that he and his wife
went into hiding after birth of their child, government officials
searched and destroyed their home, arrested his father, and
sterilized his wife). We note that the IJ had earlier found Chen
to be a credible witness, and a petitioner may establish his
subjective fear of future persecution by his credible testimony.
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See Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 399 (2d
Cir. 2005) (citation omitted).
Accordingly, the petition for review is GRANTED, the
BIA's decision is AFFIRMED in part and REVERSED in part, and the
case is REMANDED to the BIA with directions to reopen the
proceedings.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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