Yu Chen v. US Attorney General

Filing

Opinion issued by court as to Petitioner Yu Zhong Chen. Decision: Affirmed. Petition Denied. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-14281

Date Filed: 04/26/2013

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14281
Non-Argument Calendar
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Agency No. A079-433-612

YU ZHONG CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 26, 2013)
Before CARNES, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Yu Zhong Chen, a Chinese national who attempted to enter the United States
without valid entry documents, petitions for review of the Board of Immigration

Case: 12-14281

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Appeals’ decision denying his motion to reopen his removal proceedings. After
the initiation of removal proceedings in 2002, Chen filed an application for asylum
and withholding of removal, claiming that he was arrested, interrogated, and
beaten after Chinese officials broke up a small Christian prayer group at his home
in Fuzhou City, Fujian Province; and that China’s one-child family planning policy
prevented him and his wife from having a second child. Relying on
inconsistencies and omissions in his various statements to immigration officials, an
immigration judge found that Chen was not credible, denied his application for
relief, and ordered his removal to China. The BIA affirmed that decision in June
2004 without written opinion.
Over seven years later, in January 2012, Chen moved to reopen his removal
proceedings on the ground that conditions in China had worsened for members of
unsanctioned Christian groups and opponents of the one-child policy. The BIA
denied the motion as untimely under the 90-day deadline for filing motions to
reopen, concluding that Chen failed to overcome the limitation period by
demonstrating a material change in conditions in either his hometown of Fuzhou
City or in China as a whole. The BIA also found that Chen did not establish a
prima facie case for asylum, withholding of removal, or relief under the United
Nations Convention Against Torture (CAT) because he did not present evidence

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that the Chinese government was aware of his current religious practices and
would specifically target him for persecution upon his return.
We review the denial of a motion to reopen removal proceedings for an
abuse of discretion, and our review is limited to determining whether the BIA
exercised its discretion in an arbitrary or capricious manner. Zhang v. U.S. Att’y
Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). Because motions to reopen are
especially disfavored in removal proceedings, where every delay generally “works
to the advantage of the deportable alien who wishes merely to remain in the United
States,” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724 (1992),” the
moving party “bears a heavy burden,” Zhang, 572 F.3d at 1319.
A motion to reopen removal proceedings must be filed within 90 days of the
date of the final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). The 90-day deadline, however, is inapplicable where an
alien demonstrates “changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such evidence is
material” and could not have been produced at the removal proceeding. 8 U.S.C. §
1229a(c)(7)(C)(ii); see also 8 C.F.R. 1003.2(c)(3)(ii).
Chen contends that the BIA abused its discretion in denying his motion to
reopen as untimely because the news articles and other materials he submitted in
support of that motion showed an overall deterioration in conditions in China for
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Christians and opponents of the one-child policy, even if they do not specifically
reference his hometown. Chen also maintains that the BIA failed to evaluate
whether the new evidence warranted reopening and demonstrated his eligibility for
asylum, withholding of removal, and CAT relief. We disagree with both
contentions.
In support of his motion to reopen, Chen submitted statements, reports, and
media accounts from 2008 through 2011, which indicated that China enforces its
one-child policy through fines, forced sterilization, and forced abortions, and that
members of unauthorized Christian groups are subject to repression and
mistreatment. Chen specifically draws our attention to three news articles he
submitted to the BIA: (1) a 2008 article that reported an “overall increase in
reported persecutions” of Christians between 2006 and 2007, but also noted that
Chinese officials had narrowed their focus to target church leaders “rather than
cracking down on ordinary believers”; (2) a 2011 article stating that a Chinese
family planning official was accused of killing a man while attempting to
apprehend his sister in order to have her forcibly sterilized; and (3) another 2011
article that recounted the arrests of dozens of Christians who gathered to celebrate
mass and generally noted an “intense crackdown of Tibetan monks, human-rights
activities, and others in recent weeks.”

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The materials submitted by Chen, including the three news articles he
specifically relies on, do not demonstrate a significant change in the Chinese
government’s enforcement of its one-child policy or its treatment of members of
unauthorized Christian groups since he filed his asylum application in 2002. The
State Department’s 2002 Country Report on Human Rights Practices in China,
which was submitted in connection with Chen’s original removal proceedings,
noted that the government strictly enforced its one-child policy in cities through
coercive means, including fines and instances of forced abortions and forced
sterilization. The 2002 report also noted that overall respect for freedom of
religious belief in China remained poor, that the Chinese government cracked
down on unsanctioned religious groups, including Christians, and that church
leaders and adherents were subject to harassment, interrogation, detention, and
even physical abuse. The reports of specific instances of abuse and isolated
upticks in mistreatment in the past several years do not clearly indicate that present
conditions in China are generally worse for Christians or opponents of the onechild policy than those described in the 2002 Country Report. At most, they
document an unfortunate continuation of intolerance, harassment, and abuse on the
part of the Chinese government. Chen has not conducted a meaningful comparison
between conditions in 2002 and the present to support his assertion that overall

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conditions in China have worsened for Christians and those who oppose the onechild policy, nor has he submitted sufficient evidence to compel such a conclusion.
The record also does not support Chen’s contention that the BIA failed to
evaluate whether the materials he submitted warranted reopening of his removal
proceedings and eligibility for relief. The BIA expressly considered the evidence
Chen submitted and found that it did not establish either a material change in
country conditions or eligibility for relief from removal. Because the BIA did not
abuse its discretion in denying Chen’s untimely motion to reopen his removal
proceedings, we deny his petition for review.
PETITION DENIED.

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