Shiqi Xue v. Attorney General United States ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2086
___________
SHIQI XUE, a/k/a Xian Dong,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A099-573-425)
Immigration Judge: Honorable Susan Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 19, 2013
Before: FUENTES, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: September 20, 2013)
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OPINION
___________
PER CURIAM
Shiqi Xue (“Xue”), 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, Xue appeared before an Immigration Judge (“IJ”) for removal
proceedings and sought asylum, withholding of removal, and protection under the
Convention Against Torture on the basis of China’s family planning policy. The IJ
rendered an adverse credibility finding and ordered Xue removed to China. The BIA
dismissed Xue’s appeal in 2009, and we denied his subsequent petition for review in Xue
v. Att’y Gen., 383 F. App’x 200 (3d Cir. June 4, 2010).
Approximately three years later, Xue filed a counseled motion to reopen with the
BIA. He stated that he had converted to Catholicism in 2012, and that the Chinese
government had increased its persecution of unregistered Christian groups between 2008
and 2011. In denying his motion, the BIA found that Xue’s evidence did not establish a
change in country conditions. Therefore, the Board determined that Xue lacked a basis
for filing his motion to reopen after the 90-day deadline for such motions had passed.
The BIA also declined to exercise its sua sponte authority to reopen. Through counsel,
Xue filed a timely petition for review.1
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.” Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004) (citation omitted). A motion filed more than 90 days after
1
We lack jurisdiction to review the portion of the BIA’s decision that denied sua sponte
reopening. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).
2
the Board’s final decision cannot be entertained unless it “is 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). A renewed asylum application based on changes in personal
circumstances filed outside of the 90-day window must be accompanied by a motion to
reopen that successfully shows changed country conditions. Liu v. Att’y Gen., 555 F.3d
145, 150 (3d Cir. 2009).
Xue does not dispute that his motion to reopen was filed more than 90 days after
the BIA’s final decision. Rather, he first asserts that the BIA abused its discretion in
denying his motion to reopen by relying on the prior adverse credibility determination.
“[M]indful of the adverse credibility finding,” the BIA considered a letter from Xue’s
friend in China detailing his arrest and mistreatment for practicing Catholicism and noted
that it was not supported by corroborating evidence. We have previously stated that
when adjudicating a motion to reopen, the Board may not rely on a prior adverse
credibility determination when the basis for that determination is “utterly unrelated” to a
new and different claim. Guo, 386 F.3d at 562 (holding that the BIA improperly relied
on adverse credibility determination on a religion-based claim in adjudicating a later
family-planning claim). We agree with Xue that Guo applies here and that the BIA
abused its discretion by relying on the adverse credibility determination on Xue’s family-
planning claim to adjudicate his religion-based claim.
Nevertheless, the BIA’s error in relying on the prior adverse credibility
determination is harmless, as it properly concluded that Xue had failed to demonstrate
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changed country conditions to warrant reopening. See Yuan v. Att’y Gen., 642 F.3d 420,
427 (3d Cir. 2011) (applying harmless error on immigration review “when it is highly
probable that the error did not affect the outcome of the case”). Xue asserts that the BIA
abused its discretion by selectively considering the evidence to find that he failed to
establish changed country conditions. We have stated that the Board is required to
consider the evidence of changed country conditions presented by a party, 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 “parse or refute on the record each individual
argument or piece of evidence offered by the petitioner.” Id. Here, the BIA reviewed,
among the evidence that Xue submitted, a letter from a friend of Xue’s in China, excerpts
from United States Department of State country and International Religious Freedom
reports, and China Aid Association reports. It then compared this evidence to the
Department of State’s 2007 country report, included in the record from Xue’s previous
proceedings, to support its finding that Xue’s evidence was inadequate to demonstrate the
existence of changed country conditions.2
To the extent that Xue argues the BIA erred by failing to find the existence of
changed country conditions, we find that the Board’s determination was reasonable in
light of the evidence before it. The 2009 and 2010 International Religious Freedom
2
We agree with the BIA that Xue’s conversion to Christianity constitutes a change in
personal circumstances rather than country conditions. See Liu, 555 F.3d at 150.
4
Reports establish 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. Furthermore, these reports state
that “[s]ince 1999, the Secretary of State has designated [China] as a ‘Country of
Particular Concern’ under the International Religious Freedom Act (IRFA) for
particularly severe violations of religious freedom.” See 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). The letter Xue submitted from his friend
detailing his arrest for practicing Catholicism can be viewed as an illustration of the
continuous persecution of Christians in China, not as demonstrating a change in country
conditions. Based upon the evidence, the BIA plausibly concluded that the mistreatment
of Christians in China is a “longstanding and ongoing problem” that has persisted since
before Xue’s 2008 hearing. See Pllumi, 642 F.3d at 161.
III.
After reviewing the record, we conclude that the Board’s decision to deny Xue’s
motion to reopen was not arbitrary, irrational, or contrary to law. Accordingly, we will
deny the petition for review.
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