Ye v. Atty Gen USA

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MANDATE ISSUED, filed.

Ye v. Atty Gen USA

Doc. 0 Att. 1

Case: 08-2814

Document: 003110233548

Page: 1

Date Filed: 07/29/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 08-2814 ___________ Y A N YUN YE, A/K/A J IA N FEN ZHANG, P e titio n e r v. A T T O R N E Y GENERAL OF THE UNITED STATES, R e sp o n d e n t ___________ P e titio n for Review of an Order of the Board of Immigration Appeals B IA No. A75-809-257 ___________ S u b m itte d Under Third Circuit L.A.R. 34.1(a) N o v e m b e r 17, 2009 B e f o re : AMBRO, ALDISERT and ROTH, Circuit Judges (O p in io n Filed: June 7, 2010) ___________ O P IN I O N OF THE COURT ___________

A L D IS E R T , Circuit Judge. Y a n Yun Ye seeks review of an order of the Board of Immigration Appeals

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(" B IA " or "Board") denying her motion to reopen her immigration proceedings.1 As set f o rth below, we will grant the petition, vacate the BIA's decision below and remand for f u rth e r proceedings consistent with this opinion. I. Y a n Yun Ye, a native and citizen of the People's Republic of China, attempted to e n te r the United States on April 12, 1998, and was placed in removal proceedings. On J u n e 3, 1998, she applied for asylum and appeared before an Immigration Judge ("IJ" or " ju d g e " ). On March 31, 1999, the IJ ordered Ye removed to China in absentia when she f a ile d to appear at a scheduled hearing. She did not seek review. N e a rly eight years later, on March 15, 2007, Ye filed a motion to reopen her p ro c e ed in g s . Under the applicable regulations, a motion to reopen "must be filed no later th a n 90 days after the date on which the final administrative decision was rendered in the p r o c e e d in g sought to be reopened." 8 C.F.R. § 1003.2(c)(2). An exception exists, h o w e v e r, for motions to reopen "to apply or reapply for asylum or withholding of d e p o rta tio n based on changed circumstances arising in the country of nationality . . . , if s u c h evidence is material and was not available and could not have been discovered or p re s e n te d at the previous hearing." Id. § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1 2 2 9 a (c )(7 )(C )(ii). Invoking this exception, Ye argued that her motion to reopen was not

The BIA had authority to review the IJ's denial of Ye's motion to reopen pursuant to 8 C.F.R. § 1003.1(b)(3). This Court has jurisdiction to review the BIA's decision p u rs u a n t to 8 U.S.C. § 1252. 2

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tim e -b a rre d because conditions had changed in the Fujian Province of China, the place to w h ic h she would be deported. Ye submitted evidence that the Fujian Province had re c en tly increased "the extent and severity of persecutive means employed to enforce the c o u n try's Population and Family Planning Laws." (App. 81.) She contended that, if re m o v e d , she was likely to be sterilized. After considering Ye's evidence, the IJ denied the motion and ruled that Ye failed to show a material change in China's family planning policies. (App. 41-43.) A lte rn a tiv e ly, the IJ ruled that Ye's motion to reopen was altogether barred by the f u g itiv e disentitlement doctrine because Ye had "avoid[ed] the attention of immigration a u th o ritie s since March 31, 1999" when she was ordered removed. (App. 43.) On review, th e BIA dismissed Ye's appeal, agreeing with the IJ on both grounds.2 This petition f o llo w e d . II. B ec au se the BIA issued a decision on the merits, we review the order of the BIA ra th e r than that of the IJ. Li v. Att'y Gen., 400 F.3d 157, 162 (3d Cir. 2005). We review th e BIA's denial of a motion to reopen for abuse of discretion, and we will uphold its d e c is io n unless it was arbitrary, irrational or contrary to law. See Sevoian v. Ashcroft, 290

Both parties briefed the issue whether Ye made out a prima facie case for asylum, b u t that issue is not before us. Neither the IJ nor the BIA ultimately reached this issue. (S e e App. 2-3 (BIA decision); 41-43 (IJ decision).) Consequently, we have nothing to rev iew . Cf. Abdulai v. Ashcroft, 239 F.3d 542, 548-549 (3d Cir. 2001). 3

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F .3 d 166, 174 (3d Cir. 2002). We apply a similarly deferential standard to the BIA's f a ctu a l findings, which we review for substantial evidence. See id. I I I. W e first address Ye's argument that the BIA erred in holding that her motion to re o p e n was altogether barred by the fugitive disentitlement doctrine.3 Under the fugitive d is e n title m e n t doctrine, an appellate court may dismiss the appeal of a convicted felon w h o becomes a fugitive during the appellate process. See Smith v. United States, 94 U.S. 9 7 , 97 (1876). In the immigration context, we have applied the doctrine to one "who is s u b je c t to an order of deportation but who has hidden his whereabouts from immigration a u th o ritie s and this [appellate] Court." Arana v. INS, 673 F.2d 75, 76 (3d Cir. 1982). As w ith criminal fugitives, a fugitive alien "disentitles himself from calling upon the re so u rc e s of this Court" by "conceal[ing] himself from this Court, the District Court and the INS." Id. at 77 (quotation, citation and alteration omitted). Y e directs a number of legal, constitutional and policy arguments to the p ro p o s itio n that the doctrine does not and should not apply to her. After reviewing the B IA 's decision, however, we are not satisfied that the BIA's written opinion offers an e x p la n a tio n sufficient for our review. In its one-sentence application of the fugitive

The petitioner failed to include a summary of her argument in her brief as r e q u ir e d by Rule 28(a)(8) of the Federal Rules of Appellate Procedure. The petitioner also f a iled to label volume one of the Appendix, as required under Local Appellate Rule 3 2 .2 (c ), complicating our efforts to cite and access documents in the Appendix. We e n c o u ra g e counsel to comply with these rules, as they facilitate our efficient review. 4

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d is e n title m e n t doctrine to Ye's case, the BIA explained that b e c au s e [Ye] was ordered removed in absentia in 1999, has not challenged th e order for lack of notice, and has evaded removal nearly 10 years, we f in d that the Immigration Judge appropriately applied the fugitive dise n title m e n t doctrine to [Ye's] case and concluded that reopening is not w a rr a n te d . (A p p . 3.) From this, we are unable to ascertain even the factual predicates of the BIA's f u g itiv e disentitlement ruling, much less review them for "substantial evidence." A lth o u g h the IJ's opinion, the record and the parties' briefs give us the impression that Y e's whereabouts are now known by immigration officials (e.g., App. 63), the BIA's o p in io n suggests otherwise (see App. 3). Significantly, the BIA's statement that Ye " e v ad e d removal nearly 10 years" suggests that Ye remained at large from the date of her re m o v a l order (March 31, 1999) to the date of the BIA's opinion (June 3, 2008), and im p lie s that Ye did not present herself to officials when she moved to reopen (March 15, 2 0 0 7 ). Nothing in the BIA's statement of facts suggests otherwise. Yet, if the BIA b e liev e d that petitioner Ye was actually at large, it likely would have mentioned that fact, a s neither this Court nor "[any] court has ever applied the doctrine to an alien whose w h e re a b o u ts are known and who has not fled from custody." Sun v. Mukasey, 555 F.3d 8 0 2 , 804 (9th Cir. 2009); see Arana, 673 F.2d at 77. We are thus uncertain of the BIA's f a c tu a l assumptions, and we can conduct no meaningful factual review. O u r factual uncertainty also prevents us from reviewing the legal standards

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u n d e rlyin g the BIA's fugitive disentitlement holding, as the facts bear heavily on the legal a n a lys is . If Ye's whereabouts have been unknown at any time since she moved to reopen h e r proceedings in March of 2007, our decision in Arana may provide clear authority for a p p lic a tio n of the doctrine to Ye's case. See Arana, 673 F.2d at 77 (applying the fugitive d is e n title m e n t doctrine to an alien whose whereabouts were unknown during the review p ro c e ss ). On the other hand, if Ye presented herself to authorities, the BIA's application o f the doctrine to Ye's case takes a much more controversial position, as no Court of A p p e a ls has applied the doctrine to a petitioner who is available to immigration officials d u rin g the review process. Sun, 555 F.3d at 804; Arana, 673 F.2d at 77. We simply c a n n o t review the BIA's legal ruling without the advantage of these basic facts. A s we will explain in Part IV, the BIA's alternative ground for dismissing Ye's a p p e al is also insufficient. Consequently, we must grant the petition, vacate and remand to the BIA. On remand, we direct the BIA to explain more precisely the facts and c irc u m s ta n c es justifying its fugitive disentitlement analysis. If the BIA determines that " f u rth e r factfinding is needed," it may of course "remand the proceeding to the im m igratio n judge or, as appropriate, to the Service." 8 C.F.R. § 1003.1(d)(3)(iv). In a d d itio n , because the BIA is obligated to "actually consider the evidence and argument that a party presents," Abdulai, 239 F.3d at 549, the BIA should consider Ye's sworn s ta te m e n t that she never received notice of her deportation hearing. (App. 102 ¶ 1.) A lth o u g h not necessarily determinative, we believe that evidence has some bearing on

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w h e th e r Ye was a fugitive within the meaning of the doctrine. Finally, if the facts are not a s the BIA had assumed, the BIA should reconsider its application of the fugitive d is e n title m e n t doctrine. In any case, the BIA should set forth an explanation sufficient for o u r review. IV . B e c au s e the BIA denied Ye's motion to reopen on an alternative ground ­ her f a ilu r e to establish changed conditions in the Fujian Province of China ­ we must address Y e 's objections to that aspect of the BIA's decision. See Larngar v. Holder, 562 F.3d 71, 7 8 (1st Cir. 2009). To the extent the BIA intends to place continued reliance on this d e c i sio n a l ground, the following discussion governs the analysis. Y e contends that her evidence was sufficient to establish changed conditions in C h ina, and that we should grant her motion to reopen. We are more persuaded, however, b y Ye's alternative due process argument. In this regard, Ye contends that the BIA im p e rm is s ib ly ignored her evidence and relied entirely on its prior decisions concerning c o n d itio n s in the Fujian Province. We agree. Ye's case is on all fours with Zheng v. A tto rn e y General, 549 F.3d 260 (3d Cir. 2008), which was decided approximately one m o n th after Ye submitted her brief (but before the Government submitted its own brief). A lth o u g h neither party has brought Zheng to our attention, that case compels the c o n c lu s io n that the BIA's country-conditions analysis was insufficient as a matter of due

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p r o c e s s .4 In Zheng, we applied due process principles to vacate the BIA's denials of two p etitio n ers' motions to reopen based on changed country conditions, where the BIA's o p in io n "failed to discuss most of the evidentiary record." Id. at 268-269. Although we d id not impose a rule requiring "the BIA [to] expressly parse or refute on the record each in d iv id u a l argument or piece of evidence," we did affirm that [t]he BIA should demonstrate that it has considered [the petitioner's e v i d e n c e of changed country conditions], even if only to dismiss it. In so d o in g , the BIA should provide us with more than cursory, summary or c o n c lu s o ry statements, so that we are able to discern its reasons for d ec lin in g to afford relief to a petitioner. Id . at 268 (quoting Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)). Moreover, we e m p h a s iz e d that the BIA's duty to consider an applicant's relevant evidence may be even "`g rea ter . . . in the context of motions to reopen based on changed country conditions.'" Id . (quoting Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006)). Applying those precepts, we determined with little difficulty that the BIA had c o n d u c te d an insufficient review of both petitioners' motions to reopen. In petitioner Z h e n g 's case, "the BIA did little more than quote passages from its earlier decision in J -W -S - [ , 24 I&N Dec. 185 (BIA 2007),] without identifying ­ let alone discussing ­ the v a rio u s statements contained in the record." Zheng, 549 F.3d at 268-269. In petitioner

Given that Ye's counsel, Gary J. Yerman, was also the counsel of record in the Z h e n g case, we are perplexed by Ye's failure to notify us of that case in a letter submitted u n d e r Rule 28(j) of the Federal Rules of Appellate Procedure. 8

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C h e n 's case, the BIA's review was even more cursory: [T ]he BIA failed to refer to most of the documents that Chen submitted in support o f his motion, whether explicitly or by citation to an earlier decision . . . . In fact, th e BIA's discussion . . . amounts to a series of conclusory statements, and fails to o f f e r even a cursory review of the record. For example, the BIA stated that " [ C h e n ] has not provided sufficient evidence that any sanctions [he] may e x p e rie n c e if he returns to China would rise to the level of persecution." Id. at 270-271 (footnote omitted). Although we acknowledged that the BIA's summary c o n c lu s io n s may have been correct, we held that the BIA's review was insufficient as a m a tte r of due process. See id. at 271-272. Given the BIA's failure to discuss either p e titio n e r's evidentiary record, we vacated and remanded the BIA's denials of both p e titio n e rs ' motions to reopen. Id. at 271. Zheng compels the same result here. In affirming the IJ's determination that Ye's m o tio n to reopen was untimely, the BIA stated: A f te r reviewing the background material considered by the Immigration J u d g e , we are not convinced that the evidence shows a material change . . . . G iv e n the recent extensive analysis undertaken by the Board of the situation in China, and in particular [Ye's] Fujian Province, the evidence submitted is in su f f icie n t to meet the heavy burden of proof required to grant an untimely m o tio n to reopen [her] removal proceedings. See Matter of S-Y-G-, 24 I&N D ec . 247 (BIA 2007); Matter of J-H-S-, 24 I&N Dec. 196 (BIA 2007); M atter of J-W-S-, 24 I&N Dec. 185 (BIA 2007). (A p p . 2-3.) The balance of the BIA's discussion explained its holdings in S-Y-G-, J-H-S-, a n d J-W-S-, and referred only generally to the insufficiency of "the additional documents p ro v id e d by the respondent." (App. 3.) As in Zheng, the BIA's review "amount[ed] to a s e rie s of conclusory statements, and fail[ed] to offer even a cursory review of the record."

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Z h e n g , 549 F.3d at 271. C o n tra ry to the Government's contention, the BIA was not entitled to substitute its o w n precedents for the individualized evidentiary review to which petitioner Ye was e n title d . Rejecting that same contention in Zheng, we ruled that w h e re the evidentiary record contains documents that were not at issue in an e a rlier decision, mere reference to that earlier decision is insufficient to w a rra n t adopting its conclusions. Rather, the BIA must assess any evidence th a t bears on the questions of fact which it must decide. Id. at 271 n.7 (citation omitted). Although the Board was entitled to consider its "recent e x te n siv e analysis . . . of the situation in China" (App. 2), it could not ignore the portions o f Ye's evidence that were not addressed in those cases.5 Nor could it rely on its prior d e c is io n s without satisfying itself that Ye's evidence was in fact the same as, or su b stan tially similar to, the evidence rejected in those cases. As in Zheng, the BIA's d e c is io n provides no information regarding its rationale for deeming Ye's evidence irre le v a n t or unpersuasive. Consequently, Zheng forecloses the BIA from resting its dismissal on its d e te rm in a tio n that Ye did not meet her burden of establishing changed country conditions in China, as that determination was inconsistent with due process. If the BIA intends to

Our review satisfies us that Ye submitted many documents that were not at issue in the past decisions upon which the BIA's opinion relied. This evidence includes, but is n o t limited to, Ye's affidavit, the Policy Statement from the Administrative Office of the N atio n al Population and Family Planning Committee, the Changle City Q & A, Wu's c o n g r e s sio n a l testimony, and two news articles. 10

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p l a c e continued reliance on this alternative decisional ground, on remand it must r e c o n s id e r Ye's arguments and "make a more complete analysis of the evidence [she has] s u b m itte d ." Zheng, 549 F.3d at 272. V. W e have considered all contentions raised by the parties and conclude that no f u rth e r discussion is necessary. For the foregoing reasons, we will grant Ye's petition for re v ie w , vacate the BIA's decision below and remand for further proceedings consistent w ith this opinion.

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