Li v. U.S. Atty. Gen.

• Citation: 488 F.3d 1371
• Decision Date: 18 June 2007
• Docket Number: No. 06-15148 Non-Argument Calendar.,06-15148 Non-Argument Calendar.
• Parties: Yaner LI, a.k.a. Satoshi Wakaizumi, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

488 F.3d 1371

Yaner LI, a.k.a. Satoshi Wakaizumi, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 06-15148 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 18, 2007.

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

Kathleen M. Salyer, Sally M. Richardson, Anne R. Schultz, Miami, FL, David V. Bernal, Margaret K. Taylor, U.S. Dept. of Justice, OIL, Civ. Div., Washington, DC, for Respondent.

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

Before ANDERSON, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

This petition for review of a decision of the Board of Immigration Appeals requires us to determine whether the Board abused its discretion when it denied a motion to reopen removal proceedings. Yaner Li, a native and citizen of China and mother of two children, moved the Board to reopen her removal proceedings to file an untimely asylum application based on undisputed and previously unavailable evidence that Chinese officials in her home village in the Fujian Province are enforcing a one-child policy by forced sterilization. Notwithstanding Li's evidence, the Board found that Li failed to prove either that conditions in China had changed or that parents of foreign-born children face the same persecution as parents of native children. We grant Li's petition for review of the denial of her motion to reopen, and we vacate and remand for further proceedings.

I. BACKGROUND

Li is a native of Lianjiang, in the Fujian Province of China. On May 1, 2001, she presented a fraudulent Japanese passport to enter the United States. Since her arrival, Li has married an American citizen and given birth to two children.

On May 16, 2001, the Immigration and Naturalization Service charged Li with removal under the Immigration and Nationality Act because she did not possess a valid entry document. The notice stated that an asylum officer had found that Li presented a credible fear of persecution or torture. In July 2004, a notice of hearing was mailed to Li, but she did not appear at the hearing on December 15, 2004. The Immigration Judge found that Li had abandoned any possible application for asylum and ordered her removed.

Li filed a motion to reopen her case on the ground that the notice was mailed to the wrong address. The Immigration Judge denied the motion. On January 12, 2006, the Board affirmed.

On April 24, 2006, Li filed a motion to reopen her removal proceedings based on changed conditions in China and a motion for leave to file an asylum application on the basis of changed country conditions and changed personal circumstances. In support of her motions, Li offered previously unavailable evidence that officials in the Fujian Province of China had intensified their persecution of parents of two children. Li presented her own affidavit, which reported second-hand accounts of forced sterilization and abortion in Lianjiang in 2005, and her mother's affidavit, which reported that family planning enforcement had become more severe in Lianjiang. Li's mother attested that sterilizations were more common than before, and Li's mother stated that three women from Lianjiang were forcibly sterilized after the birth of each woman's second child.

Li also offered the Country Reports of the U.S. State Department for 2003, 2004, and 2005, which described frequent human rights abuses by local officials. The report for 2003 stated that the one-child policy was more relaxed in rural areas but that a "parent [of more than one child] was usually pressured to undergo sterilization." It also concluded that provincial "regulations requiring sterilization in certain cases, or mandatory abortion, are not contradicted by the new [national] law." The 2004 and 2005 reports, which were unavailable at Li's removal hearing in 2004, stated that government officials use coercive fines and destruction of property to coerce women with multiple children to undergo sterilization and that "one parent was often pressured to undergo sterilization." The 2004 and 2005 Country Reports explained that in Fujian Province, the local government required birth permits and employed "unspecified `remedial measures' to deal with out-of-plan pregnancies." The 2005 Country Report stated that, notwithstanding a purported national policy to the contrary, forced sterilization and abortion were prevalent in rural provinces where local officials may abuse their power without punishment. The 2005 report also described forced sterilization of several thousand people in the Shandong Province and the detention of the human rights activist who exposed the practice.

Li also submitted the 2005 Annual Report of the Congressional-Executive Commission on China and two newspaper articles. The report stated that the Chinese government had an official policy of using coercive fines to enforce the one-child rule but that some local officials used physical coercion. The newspaper articles from August and September 2005 described a campaign of forced abortions and sterilizations in the Shandong Province.

Finally, Li submitted evidence to establish that she, as a mother to children born in the United States, had an objective fear of future persecution upon removal to China. She submitted the 2005 Consular Information Sheet of the U.S. State Department, which stated that the Chinese government considers children born to Chinese nationals abroad to be Chinese citizens for the purposes of ingress and egress from the country. She also submitted the 2002 congressional testimony of John Aird, an expert on Chinese family planning policy, that Chinese parents of foreign-born children are subject to the same coercion and penalties as parents of native children.

The Board denied Li's motion to reopen and her motion for leave to file an untimely application for asylum. The Board found that the motion to reopen was filed after the 90-day deadline for filing a motion to reopen. Although it found that Li's personal circumstances had changed by the birth of her two children, the Board found that Li's evidence did not establish an exception to the 90-day deadline based on changed country circumstances. The Board discounted the evidence that Li would be persecuted upon her removal to China because it found insufficient evidence that Chinese parents of foreign-born children would be sterilized to state a prima facie case for asylum or withholding of removal. The Board discounted Dr. Aird's testimony because it was old information, was not specific to Li's case, and he was deceased and could not testify in any possible removal proceedings. The Board also determined that the anecdotal evidence of sterilization in Fujian Province established "only that the family planning policies are enforced generally in her hometown and that they were enforced specifically against the person identified." The Board denied leave to file an untimely application for asylum because it determined, with its emphasis, that "section 208(a)(2)(D) of the [INA] ... does not pertain to untimely claims by aliens under final orders based on changes arising outside the country of nationality or removal."

II. STANDARDS OF REVIEW

We review the denial of a motion to reopen removal proceedings for abuse of discretion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.2001). To the extent that the decision of the Board was based on a legal determination, our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.2001). "[R]eview of the BIA's [statutory] interpretation is informed by the principle of deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)." Castillo-Arias v. U.S. Att'y Gen., 446 F.3d 1190, 1195 (11th Cir.2006).

III. DISCUSSION

Li challenges the decision of the Board on two grounds. First, she argues that the Board abused its discretion when it denied her motion to reopen proceedings for failure to establish changed circumstances or a prima facie case of eligibility for asylum. Second, Li argues that the Board denied her motion for leave to file an untimely application for asylum based on an erroneous interpretation of the relevant statute. We address each issue in turn.

A. The Board Abused Its Discretion When It Denied Li's Motion to Reopen Her Removal Proceedings.

Li seeks to reopen her removal proceedings to file an untimely application for asylum and apply for withholding of removal under the Immigration and Naturalization Act. To qualify for asylum or withholding of removal, an applicant must establish that she has a well-founded fear that she will be persecuted if removed to her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1), 1231(b)(3). "[A] person who has a well founded fear that he or she will be forced to [abort a pregnancy or to undergo involuntary sterilization] or [be] subject to persecution [for failure or refusal to undergo such a procedure] shall be deemed to have a well founded fear of persecution on account of political opinion." Id. § 1101(a)(42)(B).

A motion to reopen removal proceedings must be filed no later than 90 days after the final administrative decision, but this deadline does not apply if the motion to reopen is filed based on evidence of changed circumstances in the country of the movant's nationality that could not have been presented at the previous hearing. Id. § 1229a(c)(7)(C). It is within the discretion of the Board to deny a motion to reopen for at least three reasons: "1) failure to establish a prima facie case [of eligibility for asylum or withholding of removal]; 2) failure to introduce evidence that was material and previously unavailable; and 3) a determination that despite the alien's statutory eligibility for relief, he or she is not entitled to a favorable exercise of discretion." Al Najjar,...