Bin Chen v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-22-2004
Bin Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1715
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"Bin Chen v. Atty Gen USA" (2004). 2004 Decisions. Paper 791.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1715
BIN CHEN,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
_________________________________
On petition for review of a final order
of the Board of Immigration Appeals
File No: A77-551-032
_________________________________
Submitted pursuant to Third Circuit LAR 34.1(a)
on March 25, 2004
Before: FUENTES, SMITH, and
JOHN R. GIBSON,* Circuit Judges
(Filed: April 22, 2004)
______________________
OPINION OF THE COURT
_______________________
*
The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
JOHN R. GIBSON, Circuit Judge.
Bin Chen petitions for review of a decision by the Board of Immigration Appeals
("Board") denying Chen's motion to reopen his case. For the reasons set out below, we
deny Chen's petition for review.
I.
Chen, a citizen of the People's Republic of China, entered the United States in
January, 1999, with a false passport. The Immigration and Naturalization Service issued
Chen a Notice to Appear, charging that he was removable from the United States under 8
U.S.C. § 1227(a)(1)(A). At a hearing before an Immigration Judge, Chen admitted
removability, but applied for asylum, withholding of removal, and protection under the
Convention Against Torture.
At an evidentiary hearing on the merits of Chen's application, Chen testified that
he is a native and citizen of China, where he lived with his wife and son. After his son
was born, officials enforcing China's family planning policy forcibly inserted an IUD into
his wife's body. The Chens paid a private doctor to remove it, and his wife became
pregnant again. Chen's employer forced her to have an abortion, inserted another IUD,
and fined the family. Chen's company denied Chen his half-year bonus and publicly
criticized him for violating China's family planning policy, including placing his name on
a workplace bulletin board.
Chen's wife again became pregnant. She was taken away and forced to undergo an
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abortion. Another fine was assessed against the Chens. Chen testified that his company
wanted to sterilize his wife, but determined that due to blood loss during the second
abortion, she was physically unable to undergo the procedure. Therefore, the company
told Chen that he would be sterilized instead of his wife. Chen did not report to have the
procedure done and was fired from his job.
At the hearing, Chen supplied documentation to support his asylum application,
such as a receipt for the first fine assessed against him, certificates from the birth control
operations, the notice of termination from his job, birth certificates, his marriage
certificate, and a household register.
Chen testified that his wife remained in China. She did not come to the United
States because he "met this person and I had this chance, and she do not." Chen said he
could not afford to pay for both himself and her. Chen does not want to return to China
because he fears sterilization, arrest, or placement in a re-education camp.
On December 6, 1999, the Immigration Judge orally denied Chen's application for
asylum. The Judge found that Chen's testimony was not detailed, consistent, or
understandable. The Judge found parts of the testimony "virtually incomprehensible" and
noted that "an essential piece of corroboration is lacking in this case and that is an
affidavit" from Chen's wife attesting to the fact that the abortions were involuntary. The
Judge said he would deny relief "on the basis of a negative exercise of discretion," noting
that Chen did not adequately explain why he came to the United States and his wife did
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not, stating that Chen's actions were not "the type of conduct that we should be
encouraging here with grants of asylum."
Chen timely appealed the Immigration Judge's decision to the Board of
Immigration Appeals. The Board affirmed on October 8, 2002. Chen did not seek
judicial review of the Board's decision. Rather, on December 27, 2002, Chen moved the
Board to reopen his case to allow him to submit new evidence, consisting of Chen's and
his wife's resident identification cards, an affidavit from his wife, and a school notice
announcing Chen's violation of China's family planning policy.
On February 12, 2003, the Board denied Chen's motion to reopen. The Board
concluded that as to the identification cards and the affidavit, Chen had not demonstrated
that the evidence was previously unavailable. As to the school notice, the Board held that
it did not "support a finding that the respondent's wife was forced to undergo two
involuntary abortions, especially in view of the Immigration Judge's adverse credibility
finding which we affirmed in our October 8, 2002, order."
Chen filed a petition for review with this court on March 14, 2003. Chen claims
that the Board erred in affirming the Immigration Judge's denial of his request for asylum
and for denying his motion to reopen. We will address each claim in turn.
II.
The Attorney General has discretion to grant asylum to an alien who qualifies as a
refugee. 8 U.S.C. § 1158(b) (2000). A refugee is a person who is unable or unwilling to
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return to his or her native country because of "persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). In the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Congress specified that "a
person who has been forced to abort a pregnancy or to undergo involuntary sterilization,
or who has been persecuted for failure or refusal to undergo such a procedure or for other
resistance to a coercive population control program, shall be deemed to have been
persecuted on account of political opinion . . ." Pub. L. No. 104-208, 110 Stat. 3009-546
(Sept. 30, 1996). The applicant bears the burden of establishing refugee status. See 8
C.F.R. § 208.13(a) (2002); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). If an
applicant fails to establish that he or she is entitled to asylum, we may presume that he or
she cannot meet the higher standard required for withholding of removal. Janusiak v.
INS, 947 F.2d 46, 47-48 (3d Cir. 1991).
Much of Chen's brief is dedicated to arguing that he is actually eligible for asylum
and that we should overturn the Board's October 8, 2002 decision. However, Chen
waived his right to judicial review of this decision. A petition for judicial review must be
filed within 30 days of the Board's decision. 8 U.S.C. § 1252(b)(1). Chen did not seek
judicial review within this time. The 30-day time period is "jurisdictional in nature and
must be construed with strict fidelity to [its] terms." Stone v. INS, 514 U.S. 386, 405
5
(1995) (construing former 8 U.S.C. § 1105a(a)(1)). 1
Chen's motion to reopen his case does not change our conclusion. The Supreme
Court has held that the finality of an underlying deportation order is unaffected by the
subsequent filing of a motion to reconsider or reopen. Id. Thus, Chen's December 27,
2002 motion to reopen does not toll the 30-day deadline for seeking judicial review of the
October 8, 2002 merits decision. Therefore, to the extent that Chen seeks review of either
the Immigration Judge's order denying asylum or the Board's decision affirming that
order, we are without jurisdiction to hear his claims. See Martinez-Serrano v. INS, 94
F.3d 1256, 1258 (9th Cir. 1996) (applying former 8 U.S.C. § 1105a(a)(1)).
Chen also petitions for review of the Board's denial of his motion to reopen his
case. The Board denied the motion on February 12, 2003. Chen filed a petition for
review with this court on March 14, 2003. Therefore, the petition was filed within the 30-
day window and we have jurisdiction to review the Board's denial of the motion to
reopen. Our review is for abuse of discretion. INS v. Doherty, 502 U.S. 314, 322 (1992).
We will not overturn the Board's decision unless it was arbitrary, irrational, or contrary to
law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
Chen sought to introduce four pieces of new evidence in his motion to reopen,
1
The Immigration and Nationality Act originally imposed a 90-day time period to
file a petition for judicial review, but IIRIRA shortened the time period to 30 days. The
30-day provision applies to all final orders entered after October 30, 1996. See Singh v.
INS, 315 F.3d 1186, 1188 (9th Cir. 2003).
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including two resident identification cards and an affidavit from his wife. The Board
found that Chen failed to show why this evidence was previously unavailable. Motions
to reopen shall not be granted unless it appears to the Board that the evidence sought to be
offered "is material and was not available and could not have been discovered or
presented at the former hearing." 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu, 485
U.S. 94, 104-05 (1988). Chen makes no argument in his brief why the Board abused its
discretion with respect to these rulings. Therefore, Chen has waived the issue. See Fed.
R. App. P. 28(a)(9) (an argument must contain "appellant's contentions and the reasons
for them, with citations to the authorities and parts of the record on which the appellant
relies"); Martinez-Serrano, 94 F.3d at 1260.
Chen also produced a school notice dated November 8, 2002, which stated that
Chen was fined for violating the family planning policy. The Board found that the notice
did not "support a finding that the respondent's wife was forced to undergo two
involuntary abortions, especially in view of the Immigration Judge's adverse credibility
finding which we affirmed in our October 8, 2002, order."
Chen argues that the Board abused its discretion because the Immigration Judge
did not make any credibility finding in his order. While the Board's order referred to the
Judge's decision, the Board made an independent determination that the new evidence did
not substantially alter Chen's claim for asylum. The Board noted that the school notice
does not corroborate Chen's claim that his wife was forced to have two involuntary
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abortions. The evidence did not add any new facts, but merely bolstered Chen's original
claim that was already determined insufficient to support a grant of asylum. Therefore,
the Board was within its discretion in concluding that the affidavits were not material and
did not justify reopening Chen's case.
Accordingly, Chen's petition for review is DENIED.
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