Hang Chen v. Holder

• Decision Date: 30 March 2012
• Docket Number: No. 11–1191.,11–1191.
• Citation: 675 F.3d 100
• Parties: HANG CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

675 F.3d 100

HANG CHEN, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 11–1191.

United States Court of Appeals, First Circuit.

Submitted Feb. 7, 2012.Decided March 30, 2012.

Theodore N. Cox, on brief for petitioner.

Kevin J. Conway, Attorney, Office of Immigration Litigation, Civil Division, Tony West, Assistant Attorney General, Civil Division, and Richard M. Evans, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before TORRUELLA, Circuit Judge, SOUTER,^* Associate Justice, and BOUDIN, Circuit Judge.TORRUELLA, Circuit Judge.

Petitioner–Appellant Hang Chen (“Chen”), a native and citizen of the People's Republic of China, challenges the determination of the Board of Immigration Appeals (the “BIA” or “Board”) that a reopening of Chen's removal proceedings was unwarranted due to his failure to establish a change in circumstances or country conditions. After careful consideration, we deny Chen's petition for review.

I. Background

Chen entered the United States without inspection on October 16, 1996. On June 23, 1997, the Immigration and Naturalization Service (“INS”) ¹ issued Chen a Notice to Appear (the “Notice”). The Notice charged Chen with being subject to removal from the United States pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), providing that “[a]n alien present in the United States without being admitted or paroled ... is inadmissible.” 8 U.S.C.A. § 1182(a)(6)(A)(i) (2006).

On September 24, 1997, Chen appeared before an Immigration Judge (“IJ”). During the proceeding, Chen admitted the factual allegations contained in the Notice, conceded removability under the charges, and indicated his intent to apply for political asylum and withholding of deportation, or alternatively, for voluntary departure. Chen did so file such an application, seeking asylum, withholding of removal, and protection under the Convention Against Torture based on religion and political opinion.²

On December 23, 1997, the IJ held a merits hearing at which Chen testified as the sole witness in support of his application for relief from removal. After considering Chen's testimony, application, and submitted supporting materials, the IJ found Chen's testimony incredible and denied his application for asylum. Instead, noting Chen's young age and crimeless record, the IJ granted Chen's application for voluntary departure, issuing an alternative order of removal should Chen fail to depart the United States when and as required.

Soon after, Chen appealed the IJ's denial of his application; the government likewise appealed the IJ's grant of voluntary departure. Before the BIA could consider the appeal, however, Chen's counsel withdrew Chen's appeal on the grounds that Chen had returned to China. Based on this submission, the BIA deemed Chen's appeal withdrawn and the IJ's prior decision as final to the same extent as if Chen had never appealed the IJ's order. The BIA also dismissed the government's appeal of the IJ's grant of voluntary departure.

The papers, however, did not reflect reality. Chen had not returned to China. Instead, he was living in the United States and was married and starting a family, which grew to include three children, all of whom were born between the years 2004 and 2009. Chen allegedly was acting under the impression—pressed upon him by counsel—that his appeal to the BIA had been dismissed.³ Chen also allegedly was unaware of counsel's representation to the BIA that he had departed to China. Complicating matters further, Chen's counsel died in or about 2002. Chen asserted in a subsequent motion to the BIA that he remained unaware of what truly transpired with his appeal to the BIA for years, given that dead men tell no tales and that he was unable to retrieve his file from his former attorney's office. Chen claimed it was not until approximately November 2007 that he learned what actually took place when he received a copy of his file from the Department of Justice's Office of General Counsel of the Executive Office for Immigration Review.

In mid-August 2010, Chen was apprehended and detained by U.S. Immigration and Customs Enforcement. In late August 2010, Chen filed a motion to reopen his removal proceedings with the BIA. He asserted that reopening was warranted because his former counsel had “egregiously acted upon [Chen's] pending appeal in a way that is well beyond the ineffective assistance of counsel.” Alternatively, he requested that the BIA exercise its discretionary authority sua sponte and reopen his case.

The BIA denied Chen's motion on October 20, 2010. Specifically, the Board held that Chen's motion was untimely, as it was filed eleven years after the BIA had deemed Chen's appeal withdrawn and had dismissed the government's challenge as to voluntary departure. The BIA noted Chen's assertion that, unbeknownst to him, his former attorney had lied and represented that Chen had departed the United States, but explained that, for equitable tolling to apply to the reopening deadline, Chen had to show that he acted with reasonable diligence in seeking such reopening. The BIA held that the approximate eleven year delay in Chen's bringing his motion to reopen did not weigh in favor of a finding of such diligence. Concluding that Chen failed to show either (1) a justification for applying the doctrine of equitable tolling to the reopening deadline, or (2) exceptional circumstances warranting the BIA's sua sponte application of its reopening authority, the BIA denied Chen's motion to reopen.

Undeterred, Chen filed a second motion to reopen in December 2010, this time alleging changed country conditions and that the BIA, in formulating its decision, improperly considered a 2007 Country Profile on China prepared by the Department of State (the “2007 Country Profile” or “Profile”). Regarding the former contention, Chen cited to what he claimed was new evidence supporting his assertion of changed country conditions, including, among other materials, letters from family members alleging persecution for violating the Family Planning Policy; recent congressional reports on human rights in China; news reports from Chinese provinces; the Congressional–Executive Commission on China's Annual Report for 2008; and an affidavit from Dr. Flora Sapio (“Dr. Sapio”) that challenged the reliability, factual conclusions, and reporting methodology of the 2007 Country Profile. Chen additionally asserted that the BIA, in its previous order, improperly failed to consider Dr. Sapio's report, which served to substantially weaken the reliability of the Profile.

Regarding Chen's latter contention, Chen alleged the Profile contained significant translation errors and that it was biased, outdated, methodologically-flawed, and based on falsehoods. Further, Chen declared that the Department of State had made an “institutional decision” to work with the Chinese government “to defeat Family Planning Policy asylum claims,” and thus, information contained in the 2007 Country Profile (prepared by the Department of State) was “inherently unreliable.” Chen noted the BIA's repeated consideration of the 2007 Country Profile in other cases concerning Chinese nationals seeking family planning asylum, suggesting that “[t]he partnership between the Department of State and Chinese officials to undercut family planning claims has a third eager and willing partner: the Board of Immigration Appeals.” For these reasons, Chen argued that he had established changed country conditions and that a reopening of his case was merited.

The BIA did not agree and denied Chen's motion. First, the BIA noted that an alien may only file one motion to reopen, but if the alien asserts changed country conditions, providing evidence that was not previously available and could not have been discovered or presented at the prior proceeding, then no limitation on such a reopening motion applies. See 8 U.S.C. § 1229a(c)(7); see also 8 C.F.R. § 1003.23(b)(1). It then reviewed Chen's extensive documentary evidence and his arguments that an exception to the limitation on filing a motion to reopen applied in his case because of new evidence showing changed country conditions.

Specifically, the BIA acknowledged Chen's claims that the Department of State, in effect, was colluding with the Chinese government against Family Planning Policy asylum claims. Deeming these assertions unfounded, it noted that Chen failed to support his claims concerning the Department of State's alleged cooperation with China or the 2007 Country Profile's bias and falseness with material evidence. Addressing Chen's contention that the BIA omitted any discussion of Dr. Sapio's findings regarding the 2007 Country Profile in its prior order, the BIA noted that Chen had not previously offered Dr. Sapio's report into evidence. It expressly rejected Chen's contention that Dr. Sapio's report confirmed the 2007 Country Profile's fallibility, stating “[w]e are not persuaded that the opinion of Dr. Flora Sapio of the Julius–Maximilians University in Germany is an expert opinion on the unreliability of the 2007 Country Profile on China.” It also found that Chen did not show the alleged translation errors in the Profile were material, i.e., that such errors mandated a different result in his case, or were of such a serious nature that the Department of State had retracted or corrected the Profile's conclusions.

Reviewing the evidence that Chen submitted to support his changed country conditions argument, the BIA held that none of the documents from China had been authenticated pursuant to 8 C.F.R. § 1287.6 (2011); ⁴ some of the submitted documents were incomplete; most were not new or previously unavailable; and several documents already had been considered and addressed by the Board in its precedent decisions. Acknowledging that the evidence revealed various consequences for an individual or family that...