568 F.3d 1252 (11th Cir. 2009), 08-14871, Jiang v. U.S. Atty. Gen.

Docket Nº:08-14871.
Citation:568 F.3d 1252
Opinion Judge:MARCUS, Circuit Judge:
Party Name:Xue Xian JIANG, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
Attorney: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.
Judge Panel:Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,[*] District Judge.
Case Date:May 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1252

568 F.3d 1252 (11th Cir. 2009)

Xue Xian JIANG, Petitioner,

v.

U.S. ATTORNEY GENERAL, Respondent.

No. 08-14871.

United States Court of Appeals, Eleventh Circuit.

May 22, 2009

Page 1253

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.

Page 1254

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

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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...

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