Hong Xuan Liu v. Attorney General of the United States ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1050
___________
HONG XUAN LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A072-033-816)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 26, 2012
Before: RENDELL, FUENTES and WEIS, Circuit Judges
(Opinion filed: July 3, 2012)
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OPINION
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PER CURIAM.
Hong Liu, who proceeds pro se and in forma pauperis, requests review of the
denial of her second motion to reopen. As she has not met the threshold requirement for
relief, her petition for review cannot succeed.
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Because the parties, our primary audience, are familiar with the background of this
case, our discussion of the facts will be brief. Upon entering the country in 1993, Liu
was placed into exclusion proceedings under 8 U.S.C. § 1182(a)(7)(A)(i)(1). Her asylum
application was unsuccessful, and Liu was ordered excluded in July of 1993. See
Administrative Record (A.R.) 191, 225.
Liu has twice attempted to reopen the immigration proceedings. The first such
attempt, in 2002, was based on China’s one-child policy. A.R. 197, 215–19. The
Immigration Judge (IJ) declined to grant relief. A.R. 187–89. The second attempt—the
subject this petition—was ―premised on her involvement and membership in a political
organization called the Central Committee of China Democracy Party (CDP) in the
United States,‖ an organization ―committed [to] promoting human rights and democratic
reforms in China.‖ A.R. 53. Once again, the IJ declined to reopen proceedings, based
(inter alia) on Liu’s failure to qualify for an exception to the time and number bars on
successive motions to reopen. A.R. 46. The Board of Immigration Appeals (BIA)
upheld the IJ’s decision. Addressing at length the newly submitted material, it held that
Liu had failed to demonstrate that conditions in China had changed since the 1993
proceedings. A.R. 2–3. The BIA also declined to ―exercise [its] limited discretion to
reopen sua sponte.‖ A.R. 4.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). To successfully challenge the
denial of a motion to reopen, an alien must show that the agency abused its discretion.
Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). As motions to reopen
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immigration proceedings are generally disfavored, see Zheng v. Gonzales, 422 F.3d 98,
106 (3d Cir. 2005), the alien bears the heavy burden of demonstrating that the agency’s
decision was arbitrary, irrational, or contrary to law. Contreras v. Att’y Gen., 665 F.3d
578, 583 (3d Cir. 2012). We lack jurisdiction to review the denial of sua sponte
reopening unless the agency’s decision was based on an incorrect legal premise. Pllumi
v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011).
An alien ―may file one motion to reopen proceedings,‖ which must be filed with
the agency ―within 90 days of the date of entry of a final administrative order of
removal.‖ 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i) (emphasis added). These bars do not
apply to motions ―based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such evidence is material
and was not available and could not have been discovered or presented at the previous
proceeding.‖ 8 C.F.R. § 1003.23(b)(4)(i); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). The
issue of changed country conditions is a threshold requirement which, if not satisfied,
prevents consideration of the merits of the alien’s motion. See Shardar v. Att’y Gen., 503
F.3d 308, 312–13 (3d Cir. 2007).
Liu has not demonstrated that the BIA’s decision was arbitrary, irrational, or
contrary to law. She points to no case law contradicting the agency’s determination that
her joining of the CDP was a changed personal circumstance that did not suffice to meet
the requirements for filing a second, untimely motion to reopen. See Bi Feng Liu v.
Holder, 560 F.3d 485, 492 (6th Cir. 2009) (―Liu’s remaining evidence, which depicted
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his membership and participation in the CDP and its activities in the United States,
demonstrated a change in Liu’s personal circumstances but did not demonstrate changed
country conditions in China. Without evidence of changed country conditions, however,
Liu’s evidence of changed personal circumstances is insufficient to warrant reopening
proceedings.‖); Jin v. Mukasey, 538 F.3d 143, 147 (2d Cir. 2008) (approving of a BIA
decision that distinguished ―changed personal circumstances‖ from ―changed country
conditions‖); see also Ying Liu v. Att’y Gen., 555 F.3d 145, 151 (3d Cir. 2009) (citing
Jin with approval). We are satisfied that the BIA’s analysis of the new evidence
proffered by Liu led to a decision that was neither arbitrary nor irrational. Finally, that
the BIA declined to explain why it denied sua sponte relief does not mean that it relied on
an incorrect legal premise; accordingly, we lack jurisdiction to consider that portion of its
decision.
For the foregoing reasons, Liu’s petition for review will be denied.
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