Li Jiao Chen v. Attorney General of the United States , 523 F. App'x 135 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3112
___________
LI JIAO CHEN, a/k/a LIJIAO CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-035-975)
Immigration Judge: Honorable R.K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 24, 2013
Before: FUENTES, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: April 25, 2013)
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OPINION
___________
PER CURIAM
Li Jiao Chen, a native and citizen of China, petitions for review of an order from
the Board of Immigration Appeals (“BIA”) denying her motion to reopen. For the
following reasons, we will deny the petition for review.
Chen entered the United States without inspection in 2006, and removal
proceedings started shortly thereafter. Chen conceded her removability and applied for
asylum and related relief on the basis of past persecution for her Catholic faith and a fear
of future persecution on the same grounds. The immigration judge denied relief, finding
that Chen was not credible insofar as she claimed to have been a practicing Catholic in
China and that any fear of persecution based on her current faith was too speculative.
The BIA affirmed, and this Court denied Chen‟s petition for review. Chen v. Att‟y Gen.,
401 F. App‟x 680, 684 (3d Cir. 2010).
In 2011, Chen filed a motion to reopen proceedings, arguing that she now has two
U.S.-born children and fears returning to China due to an alleged increase in the
enforcement of its population control policy in her native Fujian Province. Chen
maintained that if she returned to China she would be forced to undergo sterilization and
would be fined and imprisoned. The BIA denied the motion, concluding that the changed
country conditions exception to the time limit for motions to reopen did not apply. It
held that administrative punishments were typically used to enforce the population
control policy. The BIA also held that Chen had not provided sufficient evidence to
show that she would be sterilized on account of her U.S.-born children. In doing so, the
BIA rejected much of Chen‟s voluminous evidence because it was not authenticated, was
not from a geographic area applicable to her, or was not from similarly situated
individuals, i.e., individuals with U.S.-born children. The BIA also concluded that
evidence that there had been incidents of coercion to meet birth quotas, “contrary to the
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national policy,” was not sufficient to establish that Chen would be sterilized against her
will. Administrative Record (“A.R.”) at 5. This petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA‟s denial of
a motion to reopen for abuse of discretion. Pllumi v. Att‟y Gen., 642 F.3d 155, 158 (3d
Cir. 2011). Such review is highly deferential, and the BIA‟s decision will not be
disturbed unless it is “„arbitrary, irrational, or contrary to law.‟” Id. at 158 (quoting Filja
v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006)). As a general rule, an alien may file only
one motion to reopen and must do so within ninety days of the date of the final
administrative decision. 8 C.F.R § 1003.2(c)(2). These limitations do not apply,
however, to motions that rely on “changed circumstances 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 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
After careful review of the record, we are satisfied that the BIA did not abuse its
discretion. Chen had to provide evidence of changed country conditions in order for her
untimely motion to proceed. She claimed that enforcement of the one-child policy in
Fujian Province had increased and that she would be sterilized against her will because
her U.S.-born children would be counted under the policy. The BIA relied in part on the
State Department‟s 2007 Profile of Asylum Claims and Country Conditions for China
(“2007 Profile”) to determine that administrative punishments are the officially-
sanctioned mode of enforcement for the one-child policy, see A.R. at 267-68, and that
there is no official policy mandating sterilization of parents of children born outside of
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China. Indeed, the 2007 Profile states that “U.S. officials in China are not aware of the
alleged official policy, at the national or provincial levels, mandating the sterilization of
one partner of couples that have given birth to two children, at least one of whom was
born abroad.” A.R. at 274. The BIA was entitled to accord evidentiary weight to the
2007 Profile.1 See Zubeda v. Ashcroft, 333 F.3d 463, 478 (3d Cir. 2003) (noting that
State Department reports are often the “most appropriate and perhaps the best resource
for information on political situations in foreign nations”) (quotation marks omitted).
The BIA also cited Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010),
in support of its determination that Chen had not presented evidence sufficient to warrant
reopening. In that decision, the BIA rejected a similar claim regarding forced
sterilization in Fujian Province on account of U.S.-born children by relying on the 2007
Profile. We have described Matter of H-L-H & Z-Y-Z as “comprehensive” and
“persuasive[],” Ying Chen v. Attorney General, 676 F.3d 112, 114 (3d Cir. 2011), and
have noted its conclusion that “physical coercion to achieve compliance with family
planning goals is uncommon and unsanctioned by China‟s national laws and . . . the
overall policy is much more heavily reliant on incentives and economic penalties.” Id. at
115 (quotation marks omitted).
1
Chen does not challenge the reliability of the 2007 Profile in her appellate brief.
Consequently, she has waived review of the issue. See Skretvedt v. E.I. DuPont De
Nemours, 372 F.3d 193, 202-03 (3d Cir. 2004).
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Against the weight of this authority, Chen argues that the BIA made a
“perfunctory” finding when it determined that administrative punishments are typically
used for enforcement because two of the documents the BIA cited, the 2009 and 2010
Annual Reports of the Congressional-Executive Commission on China, note that forced
sterilization is employed as an enforcement measure. Pet‟r‟s Br. at 30-31. The BIA,
however, acknowledged in another part of its decision that there was evidence of some
incidents of coercion, but concluded that it was insufficient to establish that Chen would
suffer similar treatment. A.R. at 5. The Annual Reports also appear to concern only
women who gave birth to children in China and thus do not support Chen‟s claim
regarding U.S.-born children.
Chen also claims that the BIA arbitrarily dismissed most of her evidence. We
disagree. The BIA rejected documents from China because they were not authenticated
pursuant to 8 C.F.R. § 1287.6, or in any other manner. Chen contends that some of the
documents are from Chinese government web sites and thus are self-authenticating under
Federal Rule of Evidence 902(5). The Federal Rules of Evidence, however, do not apply
in asylum proceedings. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003).
Because no other means of proving authenticity was attempted for the documents from
Chinese government web sites, we cannot say that the BIA abused its discretion by
requiring authentication. Cf. Ying Chen, 676 F.3d at 117. Chen claims that four other
documents were authenticated by the affidavit of an expert. Although the BIA did not
explicitly comment on the affidavit, we note that three of the four documents concern
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locales not relevant to Chen, see A.R. at 534-62, a reason the BIA explicitly gave for
discounting certain evidence.2 A.R. at 5.
The BIA noted that Chen is from “Luding Village, Shanggang Township, Changle
City.” A.R. at 5. Chen argues that her last place of residence in China was Fengshan
Village, Jinfeng Township, Changle City, and that documents from that locale should
apply to her, as well as any documents from Changle City or Fujian Province as a whole.
Pet‟r‟s Br. at 28-29. She fails, however, to explain how documents concerning policies
apparently restricted to geographic areas other than where she formerly resided would
apply to her. We therefore cannot say that the BIA erred in finding those documents
inapplicable to her claim.3
Finally, Chen challenges the BIA‟s conclusions regarding two pieces of
individualized evidence: a letter from a cousin who claims she was forcibly sterilized in
Changle City, and a document obtained by Chen‟s mother-in-law from the Fengshan
Villagers‟ Committee stating that Chen must immediately report for sterilization upon her
return to China. The BIA appropriately concluded that the letter was not relevant
2
The fourth document does not appear to support Chen‟s claim. It describes an effort to
achieve family planning targets in Changle City from December 2008 through February
2009. While it mentions achieving sterilization targets, it does not mention procuring
involuntary sterilizations. A.R. at 521-24.
3
We note that Chen submitted five documents that may be broadly construed as applying
to Changle City as a whole, and three documents from Jinfeng Township, her last place
of residence. A.R. at 476-528, 636-669, 675-682. Although Chen‟s counsel apparently
wrote to government officials seeking authentication of these documents, which the BIA
acknowledged, the documents ultimately were not authenticated.
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because Chen and her cousin are not similarly situated, i.e., the cousin‟s children were
born in China, not the United States. The BIA questioned the document from the
Fengshan Villagers‟ Committee because it was handwritten, unsigned, and not
authenticated. A.R. at 5. Chen argues that the document “bears indicia of authenticity”
in the form of an official stamp and that its “chain of custody” is established by her
mother-in-law‟s letter. Pet‟r‟s Br. at 25-26. Chen, however, has failed to persuasively
explain why the stamp, which is nearly illegible, should suffice to authenticate the
document in light of the BIA‟s other concerns. Accordingly, we cannot conclude that the
BIA abused its discretion by discounting the document. See Matter of H-L-H- & Z-Y-Z-,
25 I. & N. Dec. at 214 (giving less weight to documents which were obtained for
purposes of the hearing, were unsigned, or failed to identify the author).
For these reasons, we will deny the petition for review.
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