Yue Xia Chen v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3202
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YUE XIA CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A078-746-838)
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 9, 2012
Before: SLOVITER, GREENAWAY, JR. and COWEN, Circuit Judges
(Opinion filed: May 9, 2012 )
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OPINION
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PER CURIAM
Yue Xia Chen petitions for review of an order of the Board of Immigration
Appeals (“BIA”) denying her motion to reopen her removal proceedings. For the reasons
that follow, we will deny the petition for review.
Because the parties are familiar with the background, we will present it here only
briefly. Chen is a native and citizen of China who illegally entered the United States in
2001. She applied for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture based on her claim concerning China’s coercive
population control laws. In 2002, the Immigration Judge (“IJ”) denied all forms of
requested relief and ordered Chen’s removal to China. In 2003, the BIA affirmed the IJ’s
decision. In 2005, this Court denied her petition for review in C.A. No. 03-4887.
In December 2010, Chen filed a motion to reopen her removal proceedings based
on evidence of changed country conditions in China since the time of her original
hearing. She asserted eligibility for asylum and withholding relief due to her fear of
religious persecution in light of her becoming a Christian and in light of the increase in
human rights abuses committed against members of unregistered churches in China.
Chen stated in her affidavit that her father was severely injured in a car accident in
December 2009, and that he suffered from vision loss and loss of strength on his right
side. Chen became anxious about her father’s health. At the suggestion of a friend, she
started attending church in February 2010 and prayed for her father’s well-being. About
one month later, after learning that her father had recovered from his injuries, she
determined to remain committed to her new faith. She was baptized on June 6, 2010.
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Chen expressed concern about the Chinese government’s suppression of
Christians and feared returning to China, noting that she has a duty to spread the gospel.
She submitted a letter from her cousin, who stated that she had been arrested, detained for
a week, and fined by Chinese officials in connection with her participation at a house
church gathering in March 2010. Although Chen feared persecution, she stated that she
would only attend house churches if she returned to China. She also stated that she
would never attend a church controlled by the Chinese government, because such
churches are “not real spiritual churches.”
On July 21, 2011, the BIA denied the motion to reopen. The BIA noted that
Chen’s religious conversion was a change in personal circumstances that did not
constitute a change in conditions in China that would overcome the time limitations for
filing a motion to reopen. Further, the BIA considered Chen’s documentary evidence and
concluded that, although Chen’s evidence of religious conversion was new, she had not
shown a relevant change in conditions in China or that she was prima facie eligible for
relief.
This petition for review followed. We have jurisdiction pursuant to 8 U.S.C.
§ 1252 to review the BIA’s denial of Chen’s motion to reopen, and we apply the abuse of
discretion standard to our review. See Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d
Cir. 2002). Under that standard, Chen must show that the BIA’s decision was somehow
arbitrary, irrational, or contrary to law. See id. Motions to reopen are reserved for only
“compelling circumstances.” See Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004).
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There is no dispute that Chen’s motion to reopen was untimely,
as it was not filed with the BIA within ninety days of the BIA’s 2003 decision. See
8 U.S.C. §§ 1229a(c)(7)(A) & (C)(i); 8 C.F.R. § 1003.2(c)(2). However, the ninety-day
requirement does not apply to motions that rely on evidence of “changed circumstances
arising in the country of nationality . . . if such evidence is material and was not available
and would not have been discovered or presented at the previous hearing.” 8 U.S.C.
§§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Here, Chen would have to show that
she is eligible to file a second asylum application in reopened proceedings based on her
new Christian faith and on changed country conditions since the time of her first asylum
application. See Filja v. Gonzales, 447 F.3d 241, 252 (3d Cir. 2006) (change in country
conditions is measured from time of proceedings before IJ).
Chen argues that the BIA erred in denying her motion to reopen as a motion based
on a change in her personal circumstances of becoming a Christian, where her motion
actually was based on a change in country conditions concerning the Chinese
government’s increased oppression of Christians. As the BIA noted in its decision, a
showing of a change in personal circumstances is distinct from a showing of changed
country conditions for purposes of excusing the untimeliness of a motion to reopen. See
Zheng v. Attorney General, 549 F.3d 260, 267 (3d Cir. 2008). We have recognized that
an alien who has been ordered removed can file an untimely or successive asylum
application based on changed personal conditions if the alien can also show changed
country conditions in the motion to reopen. See Liu v. Attorney General, 555 F.3d 145,
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150 (3d Cir. 2009). Although Chen’s argument suggests that the BIA precluded
consideration of her motion to reopen based on her change in personal circumstances
alone, we do not share that interpretation of the BIA’s decision. In fact, the BIA did
consider and discuss Chen’s evidence concerning changed country conditions in
considering the motion.
Chen contends that the BIA committed legal error in discounting Chen’s cousin’s
letter, in which the cousin described having been arrested and detained with several
others after participating in house church activities. Although the BIA questioned the
evidentiary value of Chen’s cousin’s letter because it was both unauthenticated and
uncorroborated, the BIA did not exclude the document from consideration. Rather, in
considering that piece of evidence, the BIA assigned it little probative value in light of
the lack of relevant detail in describing the events. For example, the BIA noted that
Chen’s cousin did not identify the address of the house church or the names of any other
church members who were arrested or detained, and she stated only that she was
“abused” while detained for one week, without explaining how, when, or by whom. We
conclude that the BIA was within its discretion to find that the letter had insufficient
evidentiary value to support reopening.
In addition, Chen contends that the BIA did not meaningfully consider the
evidence she presented and instead “cherry picked” the record in denying her motion to
reopen. As we have acknowledged, the BIA is required to consider the evidence of
changed country conditions presented by a party, but it need not “parse or refute on the
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record each individual … piece of evidence offered by the petitioner,” and it “should
provide us with more than cursory, summary or conclusory statements, so that we are
able to discern its reasons for declining to afford relief to a petitioner.” Zheng v.
Attorney General, 549 F.3d 260, 268 (3d Cir. 2008) (quoting Wang v. BIA, 437 F.3d
270, 275 (2d Cir. 2006)).
In Chen’s case, the BIA addressed the information contained in several reports
from the year 2009, including the State Department Country Reports on China, the
Congressional report, the China Aid Association report, as well as various media articles.
The BIA noted that they show that the Chinese government “continued” its efforts to
control religious groups, and that the reports cited seventy-seven cases of persecution in
the whole country. The BIA also noted that the harassment typically targeted church
leaders (and not mere members) in urban areas and “mega churches,” as opposed to
house churches in her rural home province. Chen emphasizes that, although the China
Aid Association report stated that the majority of cases in 2009 were in urban areas and
mega churches, the seventy-seven cases of persecution--cited by the BIA for the
proposition that the cases were “infrequent”--actually involved 2,935 individuals and
represented a 44.8% increase from 2008. Chen notes that the report further states that its
information on religious persecution cases was not all-inclusive, and contends that the
BIA failed properly to assess the evidence of increasing persecution together with the
evidence of house church persecution in her home province, as detailed in her cousin’s
letter. We have discussed the BIA’s discounting of the evidentiary value of the cousin’s
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letter above. Further, we disagree that the BIA should have placed more weight on the
evidence of increased persecution of Christians where the evidence focused on church
leaders in urban areas and on mega churches, given that Chen made no attempt to
establish that those conditions applied to her situation.1
We have considered the arguments presented in Chen’s brief and find them to be
without merit. We discern no abuse of discretion in the BIA’s determination that Chen
failed to show a relevant change in country conditions as the basis for granting her
motion to reopen. Accordingly, we will deny the petition for review.
1
For similar reasons, we reject Chen’s suggestion that this aspect of the BIA’s decision
implies that she must limit herself to certain places of worship to avoid persecution.
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