Mei Yang v. Attorney General of the United States

343 F. App'x 826
CourtCourt of Appeals for the Third Circuit
DecidedAugust 28, 2009
DocketNo. 08-1375
StatusPublished

This text of 343 F. App'x 826 (Mei Yang 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
Mei Yang v. Attorney General of the United States, 343 F. App'x 826 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

PER CURIAM.

Petitioner Mei Yang seeks review of a final order of removal of the Board of Immigration Appeals (“BIA”) denying her motion to reopen her deportation proceedings. We will deny the petition.

I.

Mei Yang is a 28-year-old native and citizen of China, who entered the United States without being admitted or paroled in January 2001. In February 2001, the Immigration and Naturalization Service filed a Notice to Appear and placed Yang in removal proceedings. In turn, Yang filed an application for asylum based upon her political opposition to the Chinese government’s property expropriation policy.

On March 12, 2002, the IJ, after reviewing Yang’s hearing testimony and the evidence of record, denied Yang’s asylum application. The IJ found numerous discrepancies and omissions between Yang’s asylum application, written documents, and her testimony and ultimately concluded that she was not credible. Yang appealed the IJ’s decision and, on January 29, 2003, the BIA affirmed, in part, the IJ’s decision.1 Yang did not file a petition for review of the BIA’s decision with this Court.

More than four years later, on June 4, 2007, Yang filed with the BIA a motion to reopen and to file a successive asylum application. She asserted that the motion was exempt from the ninety-day time restriction governing motions to reopen because her motion was based on changed country conditions in China and based on facts not previously available to her. Specifically, Yang contended that if she returned to China, she would likely be persecuted as a violator of the one-child rule of the family planning law because enforcement of the law was becoming more frequent in Fujian Province, Yang’s home province. Since her removal hearing in March 2002, Yang had given birth to two children and was pregnant with her third child at the time she filed her motion to reopen.

[828]*828In support of her motion, Yang relied upon the United States Court of Appeals for the Second Circuit’s decision in Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006). Specifically, Yang argued that “the Second Circuit has taken notice of evidence which confirms that Chinese nationals who have children abroad are nonetheless subject to ordinary enforcement of the one-child rule, including sterilization.” (A.R.28.) In further support of her motion, Yang included the following documents: a 2003 Consular Information Sheet, 2005 and 2006 Annual Reports of the Congressional — Executive Commission on China; the congressional testimony of Dr. John Aird and Harry Wu; Changle City Family Planning Q & A Handbook; 2006 Policy Statement from the Administrative Office of the National Population and Family Planning Committee; a 2007 World Journal excerpt on family planning practices in Fujian Province; a 1997 letter from the Department of Public Security of The People’s Republic of China; newspaper articles on family planning practices in the regions of Linyi and Guangxi.

On January 11, 2008, the BIA ruled that Yang’s motion to reopen was time-barred under 8 C.F.R. § 1003.2(c)(2). The BIA concluded that Yang had not overcome this bar by showing changed country conditions in China as permitted under 8 C.F.R. § 1003.2(c)(3)(h).

II.

Although we have jurisdiction to review the BIA’s order denying Yang’s motion to reopen, see, e.g., Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), the scope of our review is quite limited. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Under the regulations, the BIA “has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court has stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Accordingly, the Court reviews the BIA’s denial of a motion to reopen for abuse of discretion with “broad deference” to its decision. Ezeagwuna, 325 F.3d at 409. Thus, in order to succeed on the petition for review, Yang must ultimately show that the BIA’s discretionary decision was somehow arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (quotation omitted). Yang has failed to make such a showing.

III.

Yang does not dispute that she filed an untimely motion to reopen. Instead, she argues that her motion should be considered pursuant to one of the exceptions to the time restriction applicable to such motions. See 8 C.F.R. § 1003.2(c)(2). As mentioned above, the BIA found that there was “insufficient evidence in this case establishing changed circumstances in China,” as required by 8 C.F.R. § 1003.2(e)(3)(ii) in order to avoid application of the time restriction.

Yang argues that the BIA, in denying her untimely motion to reopen, gave only “scant consideration of the proffered previously-unavailable evidence.” (Petitioner’s Brief at 10.) We disagree.

As a preliminary matter, we agree with the Government that Yang’s changed personal circumstance, i.e., the birth of her children, is distinct from changed county conditions.2 See Liu v. Attorney General, [829]*829555 F.3d 145, 150-51 (3d Cir.2009); see also Wang v. Board of Immigration Appeals, 437 F.3d 270, 273 (2d Cir.2006). Relief is appropriately denied “where a petitioner is seeking to reopen [her] asylum case due to circumstances entirely of [her] own making after being ordered to leave the United States.” Wang, 437 F.3d at 274.

In addition, Yang unsuccessfully argues that the BIA erred by failing to adequately consider the evidence of changed conditions that she submitted with her motion to reopen. The record reflects that the BIA issued a clear and well-supported decision denying Yang’s claim.

The BIA first determined that Yang’s reliance upon the Second Circuit’s decision in Guo v. Gonzales, was misplaced. It pointed out that the BIA, upon remand in Guo, “ultimately determined that the [alien’s] evidence did not adequately support the reopening of the record.” (A.R.2.) The BIA also noted that Yang’s assertion regarding the case of Yu He Zheng (discussed in the 2006 Policy Statement), similar to its finding in Matter of S-Y-G-, 24 I. & N. Dec. 247, 252 (BIA 2007), did not establish changed circumstances.

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Related

Immigration & Naturalization Service v. Abudu
485 U.S. 94 (Supreme Court, 1988)
Immigration & Naturalization Service v. Doherty
502 U.S. 314 (Supreme Court, 1992)
Wei Guang Wang v. Board of Immigration Appeals
437 F.3d 270 (Second Circuit, 2006)
Ying Liu v. Attorney General of the United States
555 F.3d 145 (Third Circuit, 2009)
Zheng v. Attorney General of the United States
549 F.3d 260 (Third Circuit, 2008)
S-Y-G
24 I. & N. Dec. 247 (Board of Immigration Appeals, 2007)

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343 F. App'x 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mei-yang-v-attorney-general-of-the-united-states-ca3-2009.