Heng Cai Chen v. Attorney General of the United States ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2199
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HENG CAI CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-799-621)
Immigration Judge: Honorable Eugene Pugliese
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 9, 2013
Before: AMBRO, JORDAN and BARRY, Circuit Judges
(Opinion filed: October 17, 2013 )
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OPINION
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PER CURIAM
Heng Cai Chen (“Chen”), a citizen of China, petitions for review of the Board of
Immigration Appeals’ (“BIA” or “Board”) denial of his motion to reopen. For the
following reasons, we will deny the petition for review.
I.
In 2008, Chen appeared before an Immigration Judge (“IJ”) for removal
proceedings and sought asylum, withholding of removal, and protection under the
Convention Against Torture based upon his practice of Catholicism and his refusal to
marry the daughter of his town’s mayor. The IJ rendered an adverse credibility finding
and ordered Chen removed to China. The BIA dismissed Chen’s appeal in 2009, and we
denied his subsequent petition for review in Chen v. Att’y Gen., 386 F. App’x 205 (3d
Cir. 2010).
In 2010, Chen filed a motion to reopen with the BIA. He stated that he had been
baptized as a Christian in 2010, and that the Chinese government had increased its
persecution of unregistered Christian groups between 2008 and 2010. In denying the
motion, the BIA found that Chen’s evidence did not establish a change in country
conditions and that he had not addressed the IJ’s prior adverse credibility finding. Chen
did not petition us for review of the Board’s decision.
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In October 2012, Chen filed a second motion to reopen with the BIA. In this
motion, he asserted that the Chinese government had increased its persecution of
unregistered Christian groups by beginning a campaign to eradicate “house churches.”
His motion also alleged that such persecution would increase because of a “fundamental
upheaval” occurring in China’s “general political structure.” In denying the motion, the
BIA determined that Chen’s evidence neither established a change in country conditions
nor demonstrated that he would suffer persecution upon his return to China.
Accordingly, the Board determined that Chen lacked a basis for filing his second motion
to reopen after the 90-day deadline had passed. Through counsel, Chen filed this petition
for review.
II.
We have jurisdiction under 8 U.S.C. § 1252. We review denials of motions to
reopen under a deferential abuse of discretion standard and will not disturb the decision
“unless [it is] found to be arbitrary, irrational, or contrary to law.”1 Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004) (citation omitted). Generally, an alien 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
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Because we find that the BIA’s decision was not arbitrary, irrational, or contrary to law,
we do not reach the BIA’s alternative conclusion that Chen did not establish a prima facie
case for asylum relief. See Sevoian v. Ashcroft, 290 F.3d 166, 169-70 (3d Cir. 2002)
(citing INS v. Abudu, 485 U.S. 94, 105 (1988) (stating that the Board may deny a motion
to reopen in asylum cases where it determines that “the movant would not be entitled to
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time and number requirements are waived for motions to reopen that are “based upon
changed country conditions proved by evidence that is material and was not available and
could not have been discovered or presented at the previous proceeding.” Pllumi v. Att’y
Gen., 642 F.3d 155, 161 (3d Cir. 2011).
Chen does not dispute that his motion to reopen, his second, was filed more than
90 days after the BIA’s final decision. Rather, he first asserts that the BIA erred in
denying the motion by relying on the prior adverse credibility determination. That
determination was mentioned only when the Board provided an overview of Chen’s past
removal proceedings and stated that the IJ “found that he was not credible.”
Accordingly, we cannot agree with Chen that the BIA relied on the adverse credibility
finding as a reason to deny his motion to reopen.
Chen asserts that the Board also abused its discretion by “cherry-picking” the
record to find that he failed to establish changed country conditions. We have previously
stated that the BIA is required to consider a party’s evidence of changed country
conditions, and that it “should provide us with more than cursory, summary or conclusory
statements, so that we are able to discern its reasons for declining to afford relief to a
petitioner.” Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (quoting Wang v.
BIA, 437 F.3d 270, 275 (2d Cir. 2006)). However, it need not “expressly parse or refute
on the record each individual argument or piece of evidence offered by the petitioner.”
the discretionary grant of relief”)).
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Wang, 437 F.3d at 275 (citations and internal quotation marks omitted). Here, the BIA
reviewed, among the evidence that Chen submitted, his baptism certificate, a letter from
Chen’s church in the United States, Chen’s affidavit, China Aid media reports from 2012,
and the 2011 Fujian Province Comprehensive Social Order Administration Regulations.
It then discussed the China Aid media reports to support its finding that Chen’s evidence
was inadequate to demonstrate the existence of changed country conditions.
To the extent Chen argues that the Board erred by failing to find the existence of
changed country conditions, we conclude that the BIA’s determination was reasonable.
In its order denying Chen’s first motion to reopen, the Board took judicial notice of the
2010 International Religious Freedom Report, which establishes that the practice of
Christianity in China is restricted to churches registered with the government, and that
leaders and members of unregistered churches have continued to face detention for
religious activities. This report also notes that “[s]ince 1999, the Secretary of State has
designated [China] a ‘Country of Particular Concern’ … under the International
Religious Freedom Act (IRFA) for particularly severe violations of religious freedom.”
See also Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004) (country reports
described as the “most appropriate” and “perhaps best resource” on country conditions)
(citation omitted). Furthermore, the media reports Chen submitted detailing various raids
on underground churches can be viewed as illustrations of the continuous persecution of
Christians in China, not as demonstrating a change in country conditions. Based upon the
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evidence, the BIA plausibly concluded that restrictions upon religious freedom have
persisted in China since before Chen’s 2008 hearing. See Pllumi, 642 F.3d at 161 (BIA
did not err in denying reopening where “the conditions described have persisted”).
III.
After reviewing the record, we conclude that the Board’s decision to deny Chen’s
motion to reopen was not arbitrary, irrational, or contrary to law. Accordingly, we will
deny the petition for review.
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