Hong v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-20-2007
Hong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5093
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-5093
XIU CAI HONG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Final Order
Board of Immigrations Appeals
BIA No. A73 642 356
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 15, 2007
Before: SMITH and FISHER, Circuit Judges,
and DOWD, District Judge*
(Filed: February 20, 2007)
OPINION
SMITH, Circuit Judge.
*
The Honorable David D. Dowd, Jr., Senior United States District Judge for
the Northern District of Ohio, sitting by designation.
1
Xiu Cai Hong petitions for review of the denial by the Board of Immigration
Appeals (BIA) of his second motion to reopen his immigration proceeding.1 We review
any findings of fact for substantial evidence and the ultimate denial for an abuse of
discretion. See Korytnyuk v. Ashcroft, 396 F.3d 272, 280 (3d Cir. 2005). An abuse of
discretion will be found if the denial of a motion to reopen “is arbitrary, irrational, or
contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Motions to
reopen are generally disfavored. Abudu v. INS, 485 U.S. 94, 107 (1988).
Hong is a native and citizen of the People’s Republic of China (PRC). Hong fled
China in 1991, eventually entering the United States in April 1994. He filed a timely
application in November 1994, seeking political asylum and withholding of removal.
Hong alleged persecution on the basis of his involvement in a 1989 student democracy
movement, and his opposition to the fact that his girlfriend was forced to abort their child
in order to comply with the PRC’s coercive population control program. The INS denied
the application, issued an Order to Show Cause and Notice of Hearing in May 1995, and
referred the matter to an Immigration Judge (IJ). In March 1996, an IJ denied Hong’s
application for relief and made an adverse credibility determination, finding that Hong’s
1
The BIA exercised authority to review Hong’s motion to reopen pursuant to
8 C.F.R. § 1003.2(a). We have jurisdiction to review the BIA’s decision pursuant
to 8 U.S.C. § 1252(a). See Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002)
(observing that the denial of a motion to reopen is a final order of removal for
purposes of § 1252).
2
testimony “was lacking in credibility to an extremely large extent.”2 Two years later, the
BIA affirmed the IJ’s denial of asylum and withholding of removal. Hong did not
petition for review of the BIA’s decision.
In June of 1999, Hong filed his first motion to reopen, seeking to apply for
protection under the Convention Against Torture (CAT). The BIA denied the motion in
October of 1999. Hong did not petition for review of this decision either.
Almost six years later, in August 2005, Hong filed a second motion to reopen with
the BIA. He alleged that the time and numeric limitations did not apply because there had
been a change in the country conditions of the PRC. Hong cited the fact that he and his
wife3 had had two children and were preparing for the birth of a third child. He alleged
that the PRC’s People’s Family Planning Law (PFPL) had been enacted in late 2002 and
was being implemented in his hometown. As a result, Hong asserted that if he were
returned to the PRC, he would be in violation of the PFPL and would be subjected to
sterilization.
The BIA denied this second motion to reopen in October 2005 as untimely and
numerically barred under 8 C.F.R. § 1003.2(c)(2). The BIA recognized that there was an
exception to the time and numeric limitations “based on changed circumstances arising in
2
Hong had, through counsel and at an earlier appearance before the IJ,
conceded deportability. During this December 1995 hearing, Hong renewed his
application for asylum and withholding of deportation and requested, in the
alternative, voluntary departure.
3
Hong met his wife in the United States.
3
the country of nationality,” see 8 C.F.R. § 1003.2(c)(3)(ii), but it concluded that Hong
failed to demonstrate such a change. The BIA explained that the birth of Hong’s children
did not satisfy the exception as this constituted a change in Hong’s personal
circumstances in the United States and not a change of circumstances arising in the PRC.
The fact that the PFPL had been enacted in 2002 did not qualify as a change in
circumstances, according to the BIA, because the PFPL specifically provided that it
maintained the PRC’s current fertility policy advocating population control measures.
The BIA also declined to grant Hong’s motion to reopen sua sponte, pointing out that
Hong’s case did not present exceptional circumstances warranting such relief.
This petition for review followed. Hong does not dispute that his second motion to
reopen is untimely and numerically barred. These limitations are inapplicable, according
to Hong, because of the exception contained in 8 C.F.R. § 1003.2(c)(3)(ii) where the alien
has demonstrated a change of circumstances in the alien’s native country. Hong contends
that he satisfied this exception by citing the enactment of the PRC’s PFPL and the efforts
to enforce this law in his hometown.4
4
Hong does not take issue with the BIA’s determination that the birth of his
two children in the United States is only a change in his personal circumstances
that does not qualify as a change in circumstances in his native country for
purposes of 8 C.F.R. § 1003.2(c)(3)(ii). Accordingly, we need not review this
aspect of the BIA’s decision.
In addition, Hong wisely does not challenge the BIA’s refusal to sua sponte
grant his motion to reopen. See Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir.
2003) (concluding that we lack jurisdiction to review a denial by BIA to sua sponte
grant a motion to reopen under 8 C.F.R. § 1003.2(a)).
4
We find no error in the BIA’s analysis. It explained that the PFPL did not
constitute a significant change in the PRC’s population control policy, as this new law
was a codification of the PRC’s “current fertility policy.” As additional support, the BIA
cited the fact that the affidavit from Hong’s mother confirmed that the one child policy
had been in effect since the early 1980s.
We cannot ignore that before the BIA can consider the merits of Hong’s motion to
reopen, Hong had to demonstrate changed country conditions. 8 C.F.R. §
1003.2(c)(3)(ii); Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (pointing out that the
exception in § 1003.2(c)(3)(ii) requires the petitioner “show changed country conditions
in order to exceed the 90-day filing requirement” applicable to a motion to reopen).
Because Hong failed to satisfy this prerequisite, the BIA did not err by denying the
motion to reopen. We will deny Hong’s petition for review.
5