Hui Lan Zhang v. Attorney General of the United States

338 F. App'x 191
Court of Appeals for the Third Circuit·Decided July 20, 2009·No. No. 08-2659·Published

Opinion

OPINION

PER CURIAM.

Immigration Appeals (“BIA”) denying her motion to reopen her immigration proceedings. For the reasons that follow, we will grant her petition, vacate the BIA’s decision, and remand the matter to the BIA for further proceedings.

Zhang is a native and citizen of China. She arrived in the United States bearing a passport in someone else’s name in June 2001 and immediately applied for asylum based on her political opinions and forced marriage to the mayor’s son. In light of the discrepancies in her testimony, the lack of any substantive explanation for them, and the lack of supporting documentation for her claims, the IJ concluded that Zhang had failed to meet her burden of [192] proof and denied relief. On September 9, 2003, the BIA affirmed and dismissed her appeal.

On February 11, 2008, more than four years later, Zhang filed a motion to reopen her immigration proceedings, claiming that country conditions had changed since the denial of her application. In her motion, Zhang explained that since 2003 she had married and given birth to two children, one in 2003 and the other in 2007. She claimed that officials in her hometown had recently begun stepping up enforcement of the country’s family planning policy and had indicated that she would be sterilized if removed to China. In support of her motion, she submitted part of the 2006 State Department report on human rights practices in China; her new application for asylum; her affidavits; her marriage certificate; her birth certificate; the birth certificates of her husband and children; her son’s Chinese travel document; a statement from her mother in China dated December 27, 2007, which avers that she heard that a local villager and a woman in another village were subjected to sterilization; two unauthenticated sterilization certificates; and a notice from her village indicating that she will be required to comply with China’s family planning policies upon her return to China. In addition, she supplied nearly twenty documents, reports and statements from government agencies in the United States and China which purportedly address the current state of the enforcement of China’s family planning policy.

On May 15, 2008, the BIA denied Zhang’s motion to reopen, finding that it was untimely and that she had not demonstrated that country conditions in China had changed so as to meet the exception to the 90-day filing period. See 8 C.F.R. §§ 1003.2(c)(2), 1003.2(c)(3)(h). The BIA noted Zhang’s claims that “persecutive means of enforcing the country’s family planning policy, such as forced abortions and sterilizations, have been on the rise,” and that family planning officials are aware that she is the mother of two children. The BIA recited all of the documents submitted by Zhang in support of her claim, noted that some of them were incomplete, unauthenticated or contained insufficient information, and failed to comment on the rest, except to say that many — though not all — of them had already been considered by the BIA in Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), Matter of J-H-S-, 24 I. & N. Dec. 196 (BIA 2007); Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), and Matter of C-C-, 23 I. & N. Dec. 899 (BIA 2006), and had not been found to support the finding of a material change in country conditions. Finally, the BIA rejected Zhang’s argument that she was permitted to file a successive asylum application based on changed personal circumstances under Section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D), irrespective of whether she could show changed country conditions.1 Zhang timely filed a petition for review.

We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252. We review the BIA’s denial of a motion to reopen for abuse of discretion. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). Under this standard, we will reverse the BIA’s decision only if it is [193] “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). In addition, we will uphold the BIA’s factual determinations so long as “they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” See Liu, 555 F.3d at 148 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). As we have explained, under this standard the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). Motions to reopen generally must be filed with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(e)(2). An exception to the 90-day limit exists, however, for motions that rely on evidence of “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.” 8 C.F.R. § 1003.2(c)(3)(ii); see also Zheng v. Attorney General, 549 F.3d 260, 265 (3d Cir. 2008).

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Hui Lan Zhang v. Attorney General of the United States, 338 F. App'x 191 (3d Cir. 2009).

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