Cao v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-24-2007
Cao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1290
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1290
YI HUA CAO,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of a Final Decision
of the Board of Immigration Appeals
BIA No. A72-498-797
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 12, 2007
Before: SMITH and COWEN, Circuit Judges,
and YOHN, District Judge*
(Filed: April 24, 2007)
OPINION
*The Honorable William H. Yohn Jr., Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation.
YOHN, District Judge.
Yi Hua Cao petitions for review of the denial by the Board of Immigration
Appeals (“BIA”) of his third motion to reopen his immigration proceedings. Cao argues
that the BIA erred in refusing to reopen his proceedings, and that he meets the prima facie
requirements for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). Because Cao’s petition fails to establish the “changed
circumstances” exception to the time and numeric limitations contained in 8 C.F.R. §
1003.2(c)(2), we will deny the petition for review.
Cao is a citizen of the People’s Republic of China. He claims to have fled China
in October 1991 to escape persecution arising out of China’s coercive family planning
policy. He entered the United States without a valid immigrant visa on March 26, 1993
(J.A. 392), and filed an application for asylum and withholding of removal.1 An
immigration judge (“IJ”) held a hearing on September 17, 1993. Cao testified that after
he left China in 1991, state officials threatened his wife with a forced abortion during her
first pregnancy. He also claimed that because she was unable to pay a fine, she was
forced to have a contraceptive device implanted after the birth of their first child in China.
However, he later testified that the fine had been paid and that his family, not the state,
had decided to have the device surgically implanted. The IJ denied Cao’s application
because Cao’s cross-examination and his submitted documentation “devastat[ed]” his
1
Cao’s wife did not join him in the United States until December of 1998. (J.A. 233.)
2
credibility. (J.A. 291.)
Cao appealed to the BIA, again alleging fear of persecution due to China’s family
planning policy. On December 2, 1998, the BIA denied Cao’s appeal. The BIA found
merit to the IJ’s adverse credibility finding and criticized Cao for failing to address the
credibility issue on appeal.
Cao filed his first motion to reopen on December 29, 1998. Cao argued that the IJ
erred by wholly disregarding his family planning testimony. On June 30, 1999, the BIA
denied Cao’s motion, concluding that Cao had not established prima facie eligibility of
asylum based on the new definition of “refugee” announced in In re X-G-W-, 22 I. & N.
Dec. 71 (BIA 1998). Again, the BIA emphasized the IJ’s adverse credibility finding and
Cao’s failure to address the credibility issue either on appeal or in his motion to reopen.
Cao filed his first motion to reconsider on June 8, 2001 based on a change in the
law effectuated by the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”). In an affidavit submitted with his motion, Cao stated he was eligible
for asylum status because he and his wife would be forcibly sterilized upon their return to
China. On August 10, 2001, the BIA denied Cao’s motion because it was untimely.
Cao filed his second motion to reopen on October 30, 2001, claiming a
“substantial change” due to China’s coercive birth control policy. Cao alleged that after
he and his wife sent their second child to live with Cao’s brother in China, state officials
ordered Cao to return to China to undergo forced sterilization. On April 5, 2002, the BIA
denied Cao’s motion because “[e]ven assuming for purposes of this motion that this
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would be a changed circumstance . . . the respondent’s evidence fails to establish that the
change would lead to persecution.” (J.A. 195.)
Cao filed his second motion to reconsider on May 3, 2002 based on his fear of
future prosecution under China’s coercive birth control policy. As a “new circumstance,”
petitioner alleged that the Family Planning Office had ordered him to return for forced
sterilization. On June 6, 2002, the BIA denied Cao’s motion because the regulations
permitted only one motion to reconsider in any case previously the subject of a final
decision by the BIA. See 8 C.F.R. § 1003.2(b)(2).
On May 19, 2005, nearly seven years after the BIA denied Cao’s appeal and after
two failed motions to reopen and two failed motions to reconsider, Cao filed this, his third
motion to reopen his removal proceedings, alleging changed country conditions and new
facts previously unavailable.2 First, through phone conversations with his relatives in
China, Cao had recently learned that the People’s Family Planning Law (“PFPL”) had
been enacted in September of 2002. Second, Cao’s relatives informed him that since late
2004, local cadres had announced the new law several times at meetings within his
village and pregnant women had been forced to have abortions and sterilization
procedures. Cao, who at this point had four children, claimed that he and his wife were in
direct violation of the PFPL with the birth of their second child in 2000. Cao argued that
2
To support his claim of changed country conditions in his third motion to reopen, Cao offered
(1) his own affidavit; (2) an affidavit of John Aird dated September 20, 2004, prepared for the
Executive Office for Immigration Review of the United States Department of Homeland
Security; (3) testimony of John Aird before the Congressional Executive Commission on China
dated September 23, 2002; and (4) 2003 and 2004 State Department Country Reports for China.
4
these new facts constituted a change in country conditions due to (1) an upgrade of
punishment under the PFPL “from civil liability to legal punishment” and (2) the fact that
the PFPL had recently transformed from “a sporadic policy of coercive birth control at the
local level” into “a national, uniformly enforced law which citizens must obey.” (J.A.
13.)
The BIA denied Cao’s third motion to reopen on July 27, 2005. First, the BIA
stated that “to the extent that [Cao] is arguing that the birth of his two youngest children
in the United States would now be a basis for persecution, [Cao] made this same
argument after the birth of his second child on June 26, 2000, and it was rejected by [the
BIA].” (J.A. 2.) Second, the BIA reported that Cao’s alleged violation of China’s birth
control policy had already been considered during his proceedings. Third, the BIA
reviewed the legal liability provisions in the PFPL and noted that citizens who gave birth
outside the one or two child limits were only required to pay a “social compensation fee.”
Notwithstanding the testimony of John Aird, the BIA concluded that Cao had not
demonstrated that the implementation of the PFPL in his hometown constituted a change
of circumstances.3
We review the BIA’s decision to deny the third motion to reopen under the “highly
deferential” abuse of discretion standard, Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
3
The BIA had jurisdiction under 8 C.F.R. § 1003.2(c), which grants the BIA authority to reopen
or consider any case in which it rendered a decision. We have jurisdiction under 8 U.S.C. §
1252(b)(1).
5
2004), and its findings of facts for substantial evidence, Sevoian v. Ashcroft, 290 F.3d
166, 174 (3d Cir. 2002). Generally, motions to reopen are granted only under
“compelling circumstances,” Guo, 386 F.3d at 562, and we do not disturb the BIA’s
determination unless it is “arbitrary, irrational, or contrary to law.” Sevoian, 290 F.3d at
174.
In most cases, a petitioner may file only one motion to reopen removal
proceedings, and that motion must be filed no later than 90 days after the date on which
the final administrative decision was rendered in the proceedings sought to be reopened.
8 C.F.R. § 1003.2(c)(2); Filja v. Gonzales, 447 F.3d 241, 252 (3d Cir. 2006). However,
this time and number requirement does not apply to aliens seeking to reapply for asylum
or withholding of deportation based upon changed circumstances arising in the country to
which deportation has been ordered, so long as evidence supporting the motion 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); Johnson v. Ashcroft, 286 F.3d 696, 704 (3d Cir.
2002).
Cao claims that he satisfied the changed circumstances exception, 8 C.F.R. §
1003.2(c)(3)(ii), by citing the implementation of the PFPL in his village and the law’s
upgrade of punishment for couples who have had more than one child. However, we find
that the BIA did not abuse its discretion in its analysis. Contrary to Cao’s assertion that
the possibility of punishment now includes imprisonment, forced abortions, and
sterilization, the BIA cited to provisions of the PFPL that require couples with an
6
unapproved child to pay a social compensation fee. The State Department documents
submitted by Cao corroborate the BIA’s determination, and the 2004 report, in particular,
suggests that the PFPL enjoys relaxed enforcement in rural areas. (J.A. 127.) While, the
Aird affidavit does provide some contradictory evidence, elsewhere it states that since the
late 1970’s, “three cycles of relaxing and tightening have occurred . . . the basic policy
has remained largely unchanged.” (J.A. 63.) Further, the relevance of the Aird affidavit
is questionable, as it was neither prepared specifically for Cao nor particularized to the
circumstances of his village. See Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 274
(2d Cir. 2006). Finally, while Cao does present some evidence that the PFPL is currently
being enforced in his village, the BIA noted that Cao had repeatedly argued his alleged
violations of the birth control policy both before the IJ and the BIA during his
proceedings. Cao’s reliance on the PFPL is merely updated information that reinforces
his thirteen-year old claim of persecution and fear of forced sterilization by Chinese
government officials. Thus, the BIA did not abuse its discretion by holding that Cao
failed to establish a change in country conditions.
Cao also argues the merits of his application by alleging eligibility for asylum,
withholding of removal, and relief under CAT. However, before the BIA can consider
the merits of his motion to reopen, Cao must first demonstrate a change in country
conditions. 8 C.F.R. § 1003.2(c)(3)(ii); Wang, 437 F.3d at 274. Since Cao did not satisfy
this exception to the time and numerical limit for a motion to reopen, the BIA
appropriately denied his third motion to reopen. Because the BIA’s determination to
7
deny Cao’s third motion to reopen is not arbitrary, irrational or contrary to law, see
Sevoian, 290 F.3d at 174, we will deny Cao’s petition for review.
8