Hua Li v. Attorney General of the United States

342 F. App'x 779
CourtCourt of Appeals for the Third Circuit
DecidedAugust 27, 2009
DocketNo. 07-3974
StatusPublished

This text of 342 F. App'x 779 (Hua Li v. Attorney General of the 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.

Bluebook
Hua Li v. Attorney General of the United States, 342 F. App'x 779 (3d Cir. 2009).

Opinion

OPINION

PER CURIAM.

Hua Li petitions for review of a Board of Immigration Appeals (“BIA” or “Board”) decision denying her motion to reopen her immigration proceedings. We will deny the petition for review.

Li originally applied for asylum and other relief based on threats she received for refusing to marry a government official in [780]*780China. The Immigration Judge (“IJ”) denied relief. The BIA affirmed without opinion on November 17, 2004. Years later, on January 5, 2007, Li filed a motion to reopen and to file a successive asylum application, claiming that she had married a man (who later became a permanent resident of the United States) in a traditional ceremony in 2004, and registered the marriage in New York in 2005. The couple had a child on August 6, 2005, and Li was pregnant with a second child at the time she filed the motion to reopen. She asserted that the motion was exempt from the ninety:day time restriction on motions to reopen because her motion was based on changed country conditions in China and based on facts not previously available to her. Specifically, Chen contended that she would likely be persecuted as a violator of the one-child rule of the family planning law, because enforcement of the law by forcible sterilization or abortion was becoming more frequent in Fujian Province. On September 10, 2007, the BIA denied the motion. The Board found that Li had “not submitted reliable and previously unavailable evidence to establish that reopening is warranted in this case,” and thus the motion was time-barred because it did not fall within any exceptions to the time limitation.1

Li argued in her motion to reopen, citing Shou Yung Guo v. Gonzales, 463 F.3d 109, 112-13 (2d Cir.2006), that the United States Court of Appeals for the Second Circuit had recognized new evidence showing a change in country conditions — that is, a new policy in Fujian Province with regard to enforcement of birth control laws on couples whose children were born abroad.2 A.R. 22. Li argued that reports had earlier shown that special privileges were extended to returning overseas couples with children born abroad, A.R. 28-29; but that such was no longer the case.

In support of her motion to reopen, Li included a number of documents. See A.R. 41, List of Documents in Support of the Motion. The Board indicated that many of the documents Li produced had already been considered and rejected in Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and also commented on specific documents as follows:

• The “Response of the Administrative Office of the National Planning Committee to the Fujian Province Population ...” was unreliable, as the original Chinese version of the document, although dated 2006 had a fax date of March 12, 2005.3 The Board also found that it was materially similar to a document produced in S-Y-G-, which also addressed “the reproductive behaviors of the Zheng, Yu He couple,” and which the Board had determined did “not establish that the respondent himself would be found to violate family policies, or that if he was, his punishment would rise to the level of persecution.” A.R. 3.
[781]*781• The 1999 Chang Le City Question and Answer Document was unauthenticated, and could have been produced at Li’s 2003 hearing. The Board also noted that it had been considered in S-Y-G- and found not to show that the respondent would face persecution.
• The affidavit of demographer Dr. John Aird was not based on first-hand knowledge and had been rejected in Matter of J-W-S- 24 I. & N. Dec. 185,189 (BIA 2007).
• Two news articles recounting forced abortions and/or sterilizations in Linyi, which is in Shandong province, did not discuss problems in Li’s home area.
• The testimony of Harry Wu before a United States House of Representatives committee did not provide “any specific information regarding aliens returned to Fujian Province after the birth of multiple children abroad.” A.R. 4.
• State Department information from 2004 and 2005 did “not contain evidence that someone in the respondent’s position and from her area would be subject to forced sterilization or other persecutory acts upon return to her home province.” Id..
• “[T]he remaining documents submitted by the respondent ... do not ... suffice to meet her burden of proof for reopening under Matter of S-Y-G- ....” Id.

Li also alleged that she asked her mother-in-law to inquire with the villagers’ committee in Li’s hometown, and the mother-in-law was told that Li would not be excluded from family planning procedures if she returned to China. A.R. 59. The Board found that Li’s statement concerning what her mother-in-law learned had limited evidentiary value, as there was no statement from the mother-in-law, and no indication how family planning officials learned that Li had given birth. Based on these conclusions, the BIA found that the evidence did not establish changed circumstances in China sufficient to support a reopening of the proceedings. Finally, the BIA rejected Li’s argument that she could file a successive asylum application that would not be subject to the changed country conditions requirement of an untimely motion to reopen. Li filed a timely petition for review.4

We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We review the ultimate denial of a motion to reopen for an abuse of discretion. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). We uphold the BIA’s factual determinations if they are supported by substantial evidence. Korytnyuk v. Ashcroft, 396 F.3d 272, 285 (3d Cir.2005).

As an initial matter, we note that Li’s argument that she may file a successive asylum application without regard to the limits applicable to a motion to reopen is foreclosed by our decision in Liu, in which we held that, after completion of removal proceedings, an alien must file an asylum application in conjunction with a motion to reopen and must meet the time and numerical limitations on motions to reopen. 555 F.3d at 152. We also reject Li’s argument that her case is similar to Zheng v. Attorney General, 549 F.3d 260, 269-71 (3d Cir.2008), where we vacated the denial of motions to reopen based on the BIA’s failure to discuss the evidentiary record. In its decision here, the BIA specifically referred to almost every piece of background information provided by Li, con[782]*782cluding that this evidence was inapplicable because it did not address the treatment of Chinese nationals returning from abroad with United States children.

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342 F. App'x 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hua-li-v-attorney-general-of-the-united-states-ca3-2009.