Jiang v. U.S. Atty. Gen.

• Decision Date: 22 May 2009
• Docket Number: No. 08-14871.,08-14871.
• Citation: 568 F.3d 1252
• Parties: Xue Xian JIANG, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

568 F.3d 1252

Xue Xian JIANG, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 08-14871.

United States Court of Appeals, Eleventh Circuit.

May 22, 2009.

Gary J. Yerman, Yerman & Associates, New York City, for Jiang.

Lori B. Warlick, David V. Bernal, Lindsay E. Williams, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,^* District Judge.

MARCUS, Circuit Judge:

Xue Xian Jiang ("Jiang"), a native and citizen of China and mother of two children, petitions for review of the Board of Immigration Appeals' ("BIA") decision denying her motion to reopen removal proceedings to file an asylum application based on changed country conditions, pursuant to 8 C.F.R. § 1003.23(b)(4)(i). Jiang argues that the BIA abused its discretion by failing to adequately consider her undisputed and previously unavailable evidence that Chinese officials in her home village have increased enforcement of China's forced sterilization, one-child policy. We agree with Jiang, and after thorough review, grant her petition for review of the denial of her motion to reopen, and we vacate and remand the cause for further proceedings.

I.

The relevant facts and procedural history are these. Jiang is a native and citizen of Fuzhou, Fujian Province, China, who illegally entered the United States through Miami on May 25, 1999. Jiang was issued a Notice to Appear charging her with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant who was not in possession of a valid, unexpired immigrant visa or unexpired passport. Jiang failed to appear at her September 10, 1999 hearing, and the Immigration Judge ("IJ") ordered Jiang removed in absentia. In January 2000, Jiang filed her first motion to reopen her case, arguing that she did not appear at her September hearing because her attorney never gave her notice of the appointment. The IJ denied her motion to reopen on February 23, 2000, finding that Jiang had in fact received proper notice.

On July 17, 2002, Jiang married a fellow Chinese native and citizen, Mr. Yu Zhu, and subsequently had two children, both born in New York City: a boy, on December 16, 2002, and a girl, on August 29, 2004.

Jiang filed a second motion to reopen her removal proceedings in May 2006, this time arguing that her earlier counsel was ineffective, and that the untimely filing of her asylum application should be excused because of changed country conditions. Once again, the IJ denied Jiang's second motion to reopen, on June 1, 2006.

On January 9, 2007, Jiang filed her third and final motion to reopen. Jiang asserted that she was fearful she would be persecuted if she were made to return to China because she had married Yu Zhu and given birth to two children in the United States, in violation of China's one-child family policy; that this violation of the one-child family policy could lead to her forced sterilization upon return to China; and that she would otherwise be forced to have an abortion if she became pregnant in the future. Jiang argued that although the one-child policy had been in effect in China for many years, she had recently learned through family and friends in the Fujian Province that forced sterilization and forced abortions were on the rise. Jiang argued that her motion should not be time-barred even though it was filed more than 180 days after the entry of the final administrative order of removal under 8 C.F.R. § 1003.23(b)(4)(i), which provides that:

[t]he time and numerical limitations [for filing a motion to reopen] shall not apply if the basis of the motion is to apply for asylum under section 208 of the Act or withholding of removal under section 241(b)(3) of the Act or withholding of removal under the Convention Against Torture, and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, 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. § 1003.23(b)(4)(i).

In support of her motion, Jiang offered previously unavailable evidence that officials in the Fujian Province of China had increased enforcement of the one-child policy by forcibly sterilizing parents with more than one child. Jiang presented her own affidavit, confirming that she had given birth to a son and a daughter in 2002 and 2004 respectively; provided second-hand accounts of the forced sterilization of her sister-in-law and a village neighbor after they gave birth to their second children; and testified that village officials were aware that Jiang had two children, and told her parents that family planning policies would be enforced against her if she returned. Jiang also presented her mother's affidavit, which reported that the Population and Family Planning law of 2002 "has just [been] implemented in our hometown"; reported that punishments for violations were much more severe than they had been in the past; and confirmed the two second-hand accounts of forced sterilization in her own village. Jiang's mother specifically averred that two named individuals in Jiang's hometown, including Jiang's sister-in-law, were forcibly sterilized in 2005 after giving birth to a second child, and that she was sure that Jiang would be forcibly sterilized upon her return to China.

Jiang also offered a policy statement from the Administrative Office of the National Population and Family Planning Committee of China ("AONPFPC"), confirming that China's family planning laws still applied to all Chinese citizens, including even those living in other countries. The policy statement also provided that a couple who violates China's family planning laws by having an illegal birth while living abroad is subject to the Fujian Province population and family planning regulations. She also submitted the 2002 congressional testimony of John Aird, an expert on Chinese family planning policy, confirming the enforcement of the one-child policy on Chinese citizens living abroad upon their return to China.

Jiang also presented the Country Reports of the United States Department of State for 2004 and 2005, detailing human rights abuses in China. Both the 2004 and 2005 Country Reports noted that the 2002 Population and Family Planning Law in China was "the country's first formal law on the subject," and that while enforcement varied from place to place, women with multiple children were "often strongly encouraged" to undergo sterilization: "[i]n the cases of families that already had two children, one parent was often pressured to undergo sterilization, according to reliable reports ... penalties sometimes left women little practical choice but to undergo abortion or sterilization." Both Country Reports stated that officials in the Fujian Province engaged in "unspecified remedial measures to deal with out-of-plan pregnancies." The 2005 Country Report also provided that "[r]eports of forced sterilizations and abortions, in violation of the national law, continued to be documented in rural areas"; and that the most egregious reports of forced sterilization came out of the Shandong province, where at least seven thousand were forcibly sterilized.

Jiang also submitted the 2005 Annual Report from the Congressional-Executive Commission on China, which confirmed that there was "no improvement overall in human rights conditions in China over the past year," and that the population control policy involved coercive fines and "reports of local officials using physical coercion to ensure compliance." Lastly, Jiang submitted evidence establishing that both she and her husband were born in the Fujian Province and that the population control policies would be enforced against them upon their return.

Nonetheless, on April 3, 2007, the IJ denied Jiang's third motion to reopen, holding that Jiang had not established a material change in China's country conditions since Jiang was ordered to be removed in 1999. The IJ noted that although China's family-planning laws had not been codified until 2002, similar coercive policies had been in effect since 1979.

Jiang appealed to the BIA. In support of her brief, Jiang presented the same evidence, and additionally referenced and cited to the U.S. Department of State's web-address for accessing the 2006 Country Report, although she did not include a copy of the report. The 2006 Country Report confirmed reports of officials in the Fujian Province forcibly sterilizing women. On August 5, 2008, the BIA dismissed Jiang's appeal. Although it found that Jiang had shown a change in personal circumstances on account of the birth of her two children, it held that the evidence failed to establish changed country conditions. The BIA also determined that the evidence offered failed to establish that conditions related to China's coercive population control policies had changed.

This timely appeal followed.

II.

We review the denial of a motion to reopen an immigration petition for an abuse of discretion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1301-02 (11th Cir.2001); Gbaya v. U.S. Att'y Gen., 342 F.3d 1219, 1220 (11th Cir.2003) ("In this particular area, the BIA's discretion is quite broad.") (quotation marks omitted). Our review is limited to determining whether the BIA exercised its discretion in an arbitrary or capricious manner. Abdi v. U.S. Att'y Gen., 430 F.3d 1148, 1149 (11th Cir.2005). We review only the BIA's decision, unless the BIA has expressly adopted the IJ's...