Chen v. Mukasey, No. 06-71430.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCanby
Citation524 F.3d 1028
PartiesQing Li CHEN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
Docket NumberNo. 06-71430.
Decision Date02 May 2008
524 F.3d 1028
Qing Li CHEN, Petitioner,
v.
Michael B. MUKASEY, Attorney General, Respondent.
No. 06-71430.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 8, 2007.
Filed May 2, 2008.

[524 F.3d 1029]

Joshua E. Bardavid and Patricia S. Mann, Law Offices of Theodore N. Cox, New York, NY, for the petitioner.

Anh-Thu P. Mai and Lyle D. Jentzer, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-641-064.

Before: WILLIAM C. CANBY, JR., SUSAN P. GRABER, and RONALD M. GOULD, Circuit Judges.

CANBY, Circuit Judge:


Petitioner Qing Li Chen is a citizen of China who is subject to a final order of removal. She seeks to file an application for asylum based on a change in her personal circumstances. The Board of Immigration Appeals ("BIA") held that such an application could be presented only as part

524 F.3d 1030

of a motion to reopen her removal proceedings. The BIA then denied the motion to reopen because it exceeded the limits on time and number for such motions. Chen now petitions for review of that denial.

Chen's petition presents a question of the proper interpretation of two arguably conflicting immigration statutes and their implementing regulations. One statute and its regulation provide that an alien who is subject to a final order of removal is limited to one motion to reopen the removal proceedings, which motion must be filed within 90 days of the entry of a final order of removal.1 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). An exception to this time limit provides that there is no time limit for motions to reopen for asylum applications based on "changed country conditions arising in the country of nationality or the country to which removal has been ordered." 8 U.S.C. § 1229a(c)(7)(C)(ii).2 Chen does not assert a change in country conditions.

Another statute and its regulation provide that aliens who apply for asylum must do so within one year after arrival in the United States, and must show that they have not previously applied for and been denied asylum. 8 U.S.C. § 1158(a)(2)(B), (C); 8 C.F.R. § 208.4(a)(2). An exception to the number and time limits is provided, however, for aliens who can demonstrate "the existence of changed circumstances which materially affect the applicant's eligibility for asylum." 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)(i)(B). Chen alleges a change in her personal circumstances that qualifies her for this exception.

The question presented is whether the latter, broader exception permits Chen not only to avoid the general number and time limits of the asylum statute, § 1158, but also to avoid the number and time limits of the statute, § 1229a(c)(7), governing the reopening of removal proceedings by an alien subject to a final order of removal. In a recently published decision involving a different applicant, the BIA held that the answer to this question is "no." In re C-W-L-, 24 I. & N. Dec. 346 (B.I.A.2007). We conclude that the BIA's interpretation of the two statutes, as they affect each other, is a reasonable one, and we defer to that interpretation. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We accordingly hold that the BIA did not err in ruling that Chen's motion to reopen is barred by the number and time limitations of § 1229a(c)(7), and we deny her petition for review.3

FACTUAL AND PROCEDURAL BACKGROUND

Chen entered the United States on October 9, 1999. She was apprehended for presenting a counterfeit passport and, after being released on a $7,500 bond, she moved to New York City. An exclusion hearing was held and Chen failed to appear. She was ordered removed in absentia on November 24, 1999. A warrant issued for her removal, and she failed to comply with INS instructions for departure. She moved to reopen the removal proceedings, but her motion was denied.

524 F.3d 1031

She filed an appeal of that denial, which the BIA rejected as untimely.

In 2001, Chen married Yan Zheng in New York City and the couple had their first child in 2002. Chen filed a second motion to reopen the removal proceedings in January 2004, and the immigration judge denied this motion as barred by the time and number limits of 8 C.F.R. § 1003.2(c)(2). The BIA affirmed.

Over a year later, in 2005, Chen had her second child. She then filed a "Motion to File Successive Asylum Application Pursuant to 8 C.F.R. § 208.4," alleging that her changed personal circumstances would result in the forced sterilization of her or her husband if they returned to China because Chinese population control policy prohibits this second child. The BIA denied this motion, finding that it was time- and number-barred as a motion to reopen under 8 C.F.R. § 1003.2(c)(2). Chen petitioned this court for review.

DISCUSSION

Under the Real ID Act, Pub L. No. 109-13, § 106(a), 119 Stat. 231, 310 (2005), this court may review the BIA's interpretation of the "changed circumstances" exception to the asylum statute. Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th Cir.2007) (per curiam). As described above, Chen's ability to reopen the proceedings depends on two statutory provisions (and their accompanying regulations) that appear to conflict. Nothing in these statutes and regulations explicitly indicates whether a successive and untimely asylum application by an alien under an order of removal is subject to the limitations on motions to reopen. As we stated above, however, a recently published opinion of the BIA speaks to Chen's case.

In In re C-W-L-, 24 I. & N. Dec. at 350-51, a three-judge panel of the BIA held that a successive and untimely asylum application filed by an alien under a final order of removal must satisfy the requirements for a motion to reopen. A published decision issued by a three-judge panel of the BIA has precedential effect and is entitled to deference under Chevron, so long as: (1) the underlying statute is ambiguous, and (2) the BIA decision itself is not arbitrary, capricious, or contrary to law. Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th Cir.2006).

Congress has not unambiguously expressed its intent with regard to the question at hand. The asylum provision, 8 U.S.C. § 1158(a)(2)(D), allows consideration of a successive and untimely asylum application in cases of "changed circumstances." The provision governing motions to reopen states more narrowly, "There is no time limit on the filing of a motion to reopen if the basis of the...

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38 practice notes
  • Romo v. Barr, No. 16-71559
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 14, 2019
    ...(9th Cir. 2003). Where, as here, the BIA’s decision is published, it may well be entitled to Chevron4 deference. See Chen v. Mukasey , 524 F.3d 1028, 1031 (9th Cir. 2008) ; Kankamalage , 335 F.3d at 862. Under Chevron ’s framework, the first step is to ascertain "whether Congress has d......
  • Yuen Jin v. Mukasey
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 15, 2008
    ...a final removal order has recently been affirmed by four other circuits and is based on sound reasoning. See Qing Li Chen v. Mukasey, 524 F.3d 1028, 1030 (9th Cir.2008) ("We conclude that the BIA's interpretation of [8 U.S.C. §§ 1158 and 1229a(c)(7)], as they affect each other, is a re......
  • Carlson v. U.S. Postal Serv., Case No. 15-cv-06055-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 18, 2017
    ...found that disclosure of the names of the employees involved in the underlying events did not further a significant public interest. 524 F.3d at 1028. As discussed above, the relevant incident had been investigated by four government agencies and numerous reports had been issued. Id. at 102......
  • Carlson v. U.S. Postal Serv., Case No. 15-cv-06055-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 18, 2017
    ...found that disclosure of the names of the employees involved in the underlying events did not further a significant public interest. 524 F.3d at 1028. As discussed above, the relevant incident had been investigated by four government agencies and numerous reports had been issued. Id. at 102......
  • Request a trial to view additional results
38 cases
  • Romo v. Barr, No. 16-71559
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 14, 2019
    ...(9th Cir. 2003). Where, as here, the BIA’s decision is published, it may well be entitled to Chevron4 deference. See Chen v. Mukasey , 524 F.3d 1028, 1031 (9th Cir. 2008) ; Kankamalage , 335 F.3d at 862. Under Chevron ’s framework, the first step is to ascertain "whether Congress has direct......
  • Yuen Jin v. Mukasey
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 15, 2008
    ...a final removal order has recently been affirmed by four other circuits and is based on sound reasoning. See Qing Li Chen v. Mukasey, 524 F.3d 1028, 1030 (9th Cir.2008) ("We conclude that the BIA's interpretation of [8 U.S.C. §§ 1158 and 1229a(c)(7)], as they affect each other, is a reasona......
  • Carlson v. U.S. Postal Serv., Case No. 15-cv-06055-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 18, 2017
    ...found that disclosure of the names of the employees involved in the underlying events did not further a significant public interest. 524 F.3d at 1028. As discussed above, the relevant incident had been investigated by four government agencies and numerous reports had been issued. Id. at 102......
  • Carlson v. U.S. Postal Serv., Case No. 15-cv-06055-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 18, 2017
    ...found that disclosure of the names of the employees involved in the underlying events did not further a significant public interest. 524 F.3d at 1028. As discussed above, the relevant incident had been investigated by four government agencies and numerous reports had been issued. Id. at 102......
  • Request a trial to view additional results

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