Yi Liu v. Atty Gen USA

Filing

MANDATE ISSUED, filed.

Yi Liu v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-3402

Document: 003110278151

Page: 1

Date Filed: 09/09/2010

IMG-256

N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-3402 ___________ Y I XIAN LIU, 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 ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A077-644-965) I m m ig r a tio n Judge: Honorable Donald V. Ferlise ____________________________________

S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J u ly 14, 2010 B e f o re : BARRY, GREENAWAY, JR. AND STAPLETON, Circuit Judges (O p in io n filed: July 19, 2010) ___________ O P IN IO N ___________ P E R CURIAM Y i Xian Liu petitions for review of an order of the Board of Immigration Appeals (" B IA " ) denying her motion to reopen. For the reasons that follow, we will deny the p e titio n for review.

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Case: 09-3402

Document: 003110278151

Page: 2

Date Filed: 09/09/2010

P e titio n e r Yi Xian Liu, a native and citizen of China, arrived in the United States in 1999 without a valid visa. She applied for asylum, withholding of removal, and relief u n d e r the Convention Against Torture on the ground that she had been persecuted and to rtu re d as a Christian. An immigration judge ("IJ") found Liu's testimony incredible, a n d in May 2001 denied her applications and ordered her removed to China. In March 2 0 0 3 , the BIA affirmed. This Court upheld the adverse credibility determination and d e n ie d Liu's petition for review. See Liu v. Bureau of Citizenship & Immigration Servs., 9 6 F. App'x 89 (3d Cir. Apr. 30, 2004). In January 2007, Liu filed a motion to reopen with the BIA based on the birth of h e r two children in the United States, arguing that this development, coupled with a c h a n g e in the enforcement of family planning policies in China, excused her motion to re o p e n from the time limitations. See 8 C.F.R. § 1003.2(c)(2) (requiring that, except u n d e r certain circumstances, motions to reopen must be filed within 90 days of entry of th e final administrative order of removal). The BIA dismissed the motion to reopen as u n tim e ly and held that Liu had not demonstrated a change in country conditions sufficient to support reopening. This Court vacated and remanded in light of its decision in Zheng v . Attorney General, 549 F.3d 260 (3d Cir. 2008), holding that it was not evident from the B IA 's opinion that it had sufficiently considered all of the submissions filed in connection w ith Liu's motion to reopen. See Yi Xian Liu v. Attorney Gen., 306 F. App'x 756 (3d C ir. 2009).

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Document: 003110278151

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Date Filed: 09/09/2010

O n remand, the BIA indicated that Liu had not adequately documented that she is th e mother of two American-born children, that many of the documents she submitted w e re not originals and were not properly authenticated or corroborated, that it had already c o n sid e re d and rejected much of the background evidence she submitted, and that it did n o t find that evidence to be as persuasive on the issue of changed country conditions in C h in a as the Department of State Country Reports. Finally, the BIA concluded that even a f ter reviewing all of the evidence submitted in connection with Liu's motion to reopen, it c o u ld not discern a national policy of requiring the sterilization of a parent who returns to C h in a with a second child born outside of the country. Accordingly, the BIA held that p e titio n e r's evidence did not establish a change in country conditions since the denial of h e r initial request for relief, and denied her motion to reopen. Through counsel, Liu tim ely filed a petition for review. W e have jurisdiction over this petition for review under 8 U.S.C. § 1252. We re v ie w the decision of the BIA denying the motion to reopen for abuse of discretion. See G u o v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Under this standard, we will reverse th e BIA's decision only if it is "arbitrary, irrational, or contrary to law." Sevoian v. A sh cro ft, 290 F.3d 166, 174 (3d Cir. 2002). M o tio n s to reopen generally must be filed with the BIA "no later than 90 days after th e date on which the final administrative decision was rendered." 8 C.F.R. § 1003.2(c)(2). Liu does not contest the untimeliness of her motion, but rather argues that

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Date Filed: 09/09/2010

it is saved by the exception to the 90-day limit for motions that rely on evidence of " c h a n g e d circumstances arising in the country of nationality . . . if such evidence is m a te ria l and was not available and could not have been discovered or presented at the p re v io u s hearing." 8 C.F.R. § 1003.2(c)(3)(ii). In Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2008), we discussed in detail o u r standard for reviewing decisions of the BIA under such circumstances: On the one hand, the BIA abuses its discretion if it fails completely to a d d re s s evidence of changed country circumstances offered by a p e titio n e r. . . . The BIA should demonstrate that it has considered such e v id e n c e, even if only to dismiss it. In so doing, the BIA should provide us w ith more than cursory, summary or conclusory statements, so that we are a b le to discern its reasons for declining to afford relief to a petitioner. On th e other hand, we do not hold . . . that where the BIA has given reasoned c o n sid e ra tio n to the petition, and made adequate findings, it must expressly p a rs e or refute on the record each individual argument or piece of evidence o f f e re d by the petitioner. . . . While the BIA must consider such evidence, it may do so in summary fashion without a reviewing court presuming that it has abused its discretion. Id . at 268 (quoting Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)). We remanded to the B IA in Zheng because the BIA "did little more than quote passages from its earlier d e c isio n in J-W-S- without identifying ­ let alone discussing ­ the various statements c o n ta in e d in the record before it that Zheng submitted in support of his motion to reopen." Id. Shortly thereafter, in Liu v. Attorney General, 555 F.3d 145 (3d Cir. 2009), we held th a t the BIA had adequately considered the materials submitted by petitioner in support of h e r claim of changed circumstances. See id. at 149. In Liu, the BIA enumerated all of th e documents offered by petitioner, set out its evaluation of them and concluded that 4

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"`[ n ]on e of the evidence presented states or infers that overseas Chinese returnees are s u b je c t to forced sterilization after giving birth to 2 children abroad.'" Id. at 150. T h e BIA's analysis on remand in this case is much closer to that in Liu than that in Z h e n g . In her petition for review, Liu argues that the BIA attached insufficient weight to h e r supporting evidence, that she "clearly established changed country conditions in C h in a ," and that the Board therefore abused its discretion in denying her motion to re o p e n . However, Liu frequently conflates the ultimate determination of whether she has s h o w n eligibility for relief from removal with the initial determination of whether she has p ro v e n that the enforcement of the family planning policy in China has changed in any m e a n in g f u l way since the denial of her first request for relief. In support of her changed c irc u m s ta n c es argument, she analogizes this case to those in which the United States C o u rt of Appeals for the Eleventh Circuit found that the BIA abused its discretion in d e n yin g petitioners' motions to reopen. See Yaner Li v. Attorney Gen., 488 F.3d 1371 (1 1 th Cir. 2007) & Xue Xian Jiang v. Attorney Gen., 568 F.3d 1252 (11th Cir. 2009). However, in Liu, the BIA considered virtually the same evidence that persuaded the E le v e n th Circuit in Li & Jiang. See 555 F.3d at 149-50. On review, we held that the B IA 's conclusion that the Chinese government did not have a national policy of s te r iliz in g a parent who returns to China with more than one child was a proper exercise o f its discretion. See id. Accordingly, we are not persuaded by petitioner's analogy.

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Document: 003110278151

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Date Filed: 09/09/2010

A f te r its thorough discussion of the extensive evidence submitted by petitioner, the B IA concluded that it "fails to establish a change in circumstances or country conditions `a ris in g in the country of nationality' so as to create an exception to the time limitation for filing a motion to reopen to apply for asylum." (A.R. 4.) We cannot say that the BIA a b u se d its discretion in so holding. While Liu challenges the weight her evidence was a c co rd e d , she does not point to any specific piece of evidence that the BIA overlooked or m isc o n stru e d in reaching its decision. Petitioner's general references to the ways in w h ic h the "record evidence" supported her claim are insufficient to convince us that the B IA abused its discretion in denying her motion to reopen. B a s e d on the foregoing, we will deny the petition for review.

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