Feng Ying Li v. Attorney General United States

695 F. App'x 32
CourtCourt of Appeals for the Third Circuit
DecidedJune 19, 2017
Docket16-3626
StatusUnpublished

This text of 695 F. App'x 32 (Feng Ying Li v. Attorney General United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Feng Ying Li v. Attorney General United States, 695 F. App'x 32 (3d Cir. 2017).

Opinion

OPINION *

FISHER, Circuit Judge.

Feng Ying Li says the Board of Immigration Appeals, or BIA, abused its discretion in denying her sixth motion to reopen her removal proceedings. We disagree and will deny her petition for review.

I.

Li, a native and citizen of China, entered the United States in 1998 without valid documentation. She applied for asylum, withholding of removal, and relief under the Convention Against Torture, claiming Chinese officials intended to sterilize her for having a child. The Immigration Judge, or IJ, found her not credible and denied her application in 1999. The BIA affirmed in 2002, ordered her removal, and granted her voluntary departure. Li remained in the United States, had two more children, and filed five motions attempting to reopen her case. Each attempt was unsuccessful.

In April 2016, Li asked the BIA to reopen her case a sixth time. She claimed entitlement to seek asylum based on changed conditions in China. She’d adopted Christianity in 2012, she said, and conditions for Christians in China had deteriorated since her hearing before the IJ in 1999. Conditions for individuals who’d violated China’s population-control policies had also worsened since 1999, she claimed. The BIA denied Li’s motion, finding that she failed to show changed country conditions worthy of relief. This timely petition for review followed.

II.

The BIA had jurisdiction under 8 C.F.R. § 1003.2, and we have jurisdiction under 8 U.S.C, § 1252. We review the denial of a motion to reopen for abuse of discretion and will disturb the BIA’s decision only if it’s arbitrary, irrational, or contrary to law. 1 Because the BIA found that Li failed to establish a prima facie case to reopen, we apply a substantial-evidence standard and will uphold the BIA’s factual findings unless the record “not only supports a contrary conclusion, but compels it.” 2

III.

Li’s sixth motion to reopen is time- and number-barred, so she must point to material evidence of “changed country conditions” that couldn’t have been presented during her hearing before the IJ in 1999. 3 The BIA, we hold, did not abuse its discretion in finding that Li failed to meet this burden.

*35 A.

Li first says the BIA abused its discretion by overlooking evidence of increased government persecution of Christians in China since 1999. We disagree. The BIA honored its duty to explicitly consider the materials Li submitted.

Before the BIA, Li cited just two of the eighty-eight documents on religious freedom she attached as exhibits to her motion. 4 One of these documents—the U.S. State Department’s 2013 report on China—does not compare more-recent conditions for Chinese Christians to conditions in 1999, let alone prove that conditions worsened since 1999. 5 Li omitted from her exhibits the portions of the other document—a 2012 congressional report on China—that discuss religious freedom in China. 6 None of the other documents Li submitted, save one, discusses conditions for Chinese Christians in 2015 or 2016. As for that one document—a 2015 congressional report on China—Li again omitted from her exhibits the portions of it that explain Congress’s findings on religious freedom in China. 7 The BIA could have taken administrative notice of the rest of these reports, as the BIA itself recognized. But the burden of proof was on Li, who was to “highlight or otherwise indicate the pertinent passages” of the “voluminous secondary source material” she attached to her motion. 8 This she failed to do. Without pointing to specific evidence in the record, Li left the BIA no meaningful way to compare conditions over time to assess whether they’ve changed materially since 1999.

Li falters for similar reasons on appeal. She points us to one page of the Commission on International Religious Freedom’s 2014 Annual Report and one page of the U.S.’ State Department’s 2011 report on China. 9 Putting aside that Li failed to direct the BIA to these two pages, neither helps her case. The page from the 2014 report only briefly recounts increases in the detention of Chinese Christians from 2013 to 2014, not 1999 to 2015 or 2016, the periods relevant here. And the page from the 2011 report does not specifically address the treatment of Christians in China. It speaks only generally of, for example, Chinese “religious adherents,” “unregistered groups,” “religious believers,” “members of unregistered religious or spiritual groups,” and “[Unregistered religious believers or Falun Gong adherents.” 10 Li’s suggestion that the BIA abused its discretion by overlooking these two pages is meritless.

In any event,. Li’s adoption of Christianity is a change in her personal circumstances that does not evidence changed country conditions. Where an applicant “intentionally alters” her own personal circumstances knowing she’s been ordered removed from the United States, that alteration doesn’t in itself constitute changed country conditions. 11 We thus reject Li’s argument that the BIA abused its discretion by overlooking evidence of increased persecution of Christians in China since 1999.

*36 B.

Li next asks us to remand because the BIA took administrative notice of, but failed to provide her the opportunity to respond to, a 2015 State Department report discussing China’s easing of its one-child policy. This, Li argues, violated her Fifth Amendment due process rights. We don’t think it did.

Courts have held that the BIA must give the “opportunity to challenge, for both truth and significance, facts of which the BIA takes administrative notice.” 12 But this rule obtains only when the BIA’s “reliance on those facts is dispositive.” 13 That’s not this case. Here, the BIA took notice of the 2015 State Department report only to support conclusions it drew from exhibits Li attached to her motion.

Before taking notice of the 2015 State Department report, the BIA addressed the only temporally relevant document Li submitted to support her contentions about China’s family-planning policies: a partial version of a 2015 congressional report on China. That document says: “Faced with a rapidly aging population, a shrinking pool of working-age people, international condemnation, and high levels of public dissatisfaction, the Chinese government eased

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695 F. App'x 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feng-ying-li-v-attorney-general-united-states-ca3-2017.