Feng Zhi Li v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1761
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FENG ZHI LI; YU FANG CHEN;
ZHU YU CHEN; ZHEN HUA CHEN,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(A96-109-436; A96-109-435; A96-109-434; A96-109-433)
Immigration Judge: Hon. Grace A. Sease
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 2, 2012
Before: SMITH, HARDIMAN AND ROTH, Circuit Judges
(Opinion filed: July 17, 2012)
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OPINION
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PER CURIAM
Feng Zhi Li and her children, Zhen Hua Chen, Yu Fang Chen, and Zhu Yu Chen
(as derivative beneficiaries), petition for review of an order of the Board of Immigration
Appeals (“BIA”) denying a motion to reopen. For the reasons that follow, we will deny
the petition for review.
I.
Inasmuch as we are writing primarily for the parties and have previously discussed
the background of the case, see Feng Zhi Li v. Att’y Gen., 379 F. App’x 235 (3d Cir.
2010), we will recite the facts only as necessary to our decision. Li and her children, all
natives of Fujian Province in the People’s Republic of China, conceded removability and
applied for asylum, withholding of removal, and relief under the United Nations
Convention Against Torture. Li claimed that she was entitled to relief because she and
her husband, who remains in China, had not complied with family planning regulations in
Fujian Province, and that her husband had been forcibly sterilized as a result. An
Immigration Judge found that Li’s claim was not credible due in part to her submission of
an inconsistent and unauthenticated letter purportedly written by Chinese officials to
corroborate her husband’s sterilization. 1 Her applications were therefore denied. The
BIA affirmed the denial of relief, and Li did not seek review.
Li filed a motion to reconsider, which the BIA denied in 2006. We dismissed her
petition for review of that denial because the only claim that she raised—ineffective
1
At the time of Li’s removal proceedings, an applicant who had established that his or
her spouse had undergone a forced abortion or sterilization procedure was per se entitled
to refugee status. In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc). The
presumption of asylum eligibility based on a spouse’s forced abortion or sterilization no
longer applies. See Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir. 2009) (en banc); In
re J-S-, 24 I. & N. Dec. 520 (A.G. 2008).
2
assistance of counsel—had not been raised below. C.A. No. 06–4155. Li then filed a
motion to reopen with the BIA, alleging changed country conditions and ineffective
assistance of counsel. The motion was denied in 2008, and Li sought review. She
pursued only her ineffectiveness claim before this Court, and we denied the petition for
review, concluding that the underlying motion to reopen was properly denied. Li, 379 F.
App’x at 239-40.
Li filed a second motion to reopen in 2011, again claiming changed country
conditions in China. She alleged that because the BIA did not credit her claim that her
husband was sterilized, it should consider whether she herself has a well-founded fear of
being forcibly sterilized. The BIA denied the motion, concluding that the evidence Li
submitted did not establish that reopening was warranted based on changed
circumstances.
II.
Li now seeks review of the BIA’s March 2, 2011 decision denying her second
motion to reopen. 2 We have jurisdiction pursuant to 8 U.S.C. § 1252. The BIA’s denial
of a motion to reopen is reviewed for an abuse of discretion and will not be disturbed
unless it was arbitrary, irrational, or contrary to law. Fadiga v. Att’y Gen., 488 F.3d 142,
153 (3d Cir. 2007).
2
After she filed this petition for review, Li filed a motion with the BIA to reconsider the
denial of her motion to reopen. The BIA denied the motion to reconsider on November
22, 2011, and Li did not petition for review of that denial. Our review of the present case
is therefore limited to the BIA’s March 2, 2011 decision.
3
An alien may file only one motion to reopen with the BIA and must do so within
90 days of the date of entry of a final administrative order of removal. 8 U.S.C.
§ 1229a(c)(7)(C)(i). However, these limitations do not apply to motions to reopen
seeking asylum or withholding of removal based 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 U.S.C. § 1229a(c)(7)(C)(ii);
Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir. 2008).
Li does not dispute that the BIA correctly determined that the motion to reopen
was untimely and number-barred. In addition, we agree with the BIA that the evidence
Li submitted with her motion to reopen was insufficient to demonstrate changed
circumstances. To support her contention that circumstances in China have changed such
that she faces an increased likelihood of forced sterilization should she return, Li
submitted a photocopy of an unsigned letter purportedly written to her husband by the
Population and Birth Control Bureau of Changle City, as well as letters and photographs
of two Chinese women who claimed that they had been forcibly sterilized for failure to
comply with family-planning policies.
Li argues that the BIA erred by rejecting the Population and Birth Control Bureau
letter for lack of authentication. Official records entered into evidence in any proceeding
before an Immigration Judge or the BIA must be authenticated. 8 C.F.R. § 1287.6.
Although authentication need not be accomplished solely by the methods set forth in
§ 1287.6, see Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004), Li failed to authenticate
4
the purported letter by any means. We perceive no abuse of discretion in the BIA
requiring Li to authenticate the letter, especially in light of the fact that it was obtained by
her husband, who had previously procured another unauthenticated letter that was
rejected. See Chen v. Att’y Gen., 676 F.3d 112, 117 (3d Cir. 2011).
Li’s remaining submissions likewise do not indicate that her case should have
been reopened. The affidavits of two women apparently forced to undergo sterilization
do not establish a change in conditions in China such that Li is at an increased risk of
persecution. To the contrary, the Immigration Judge’s 2004 opinion denying Li’s
applications for relief from removal noted instances of forced sterilization in Fujian
Province. Evidence of two isolated incidents occurring over the span of several years
does not reflect a material change in conditions.
Li also argues that the BIA should have considered additional evidence, including
a 2006 State Department Country Report that was not submitted with her present motion
to reopen, but which she had produced in earlier proceedings before the BIA. In support
of this contention, Li notes that we cited the 2006 Country Report in Huang v. Attorney
General, 620 F.3d 372 (3d Cir. 2010). Although Huang involved the BIA’s failure to
discuss the 2006 Country Report, we did not hold that the Board must address evidence
that the petitioner had previously submitted. Indeed, because a motion to reopen based
on changed conditions may only be granted if the alien produces material evidence that
was “not available and would not have been discovered or presented at the previous
5
proceeding,” § 1229a(c)(7)(C)(ii), the BIA did not err by failing to reconsider previously
submitted materials that Li did not attach to her motion to reopen. 3
III.
In sum, because the BIA properly concluded that Li did not satisfy the exception
to the time and numerical limitations for filing a motion to reopen based on changed
country conditions, we will deny the petition for review.
3
To the extent that Li argued that her motion to reopen should have been granted in light
of factual similarities between her circumstances and those at issue in Huang, we note
that the opinion she attached to her motion to reopen does not itself constitute evidence of
changed country conditions.
6