Ming Chen v. Holder

• Decision Date: 09 July 2013
• Docket Number: No. 12–2055.,12–2055.
• Citation: 722 F.3d 63
• Parties: MING CHEN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

722 F.3d 63

MING CHEN, Petitioner,

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

No. 12–2055.

United States Court of Appeals, First Circuit.

July 9, 2013.

Zhong Yue Zhang, a/k/a John Z. Zhang, on brief for petitioner.

Lori B. Warlick, Trial Attorney, Office of Immigration Litigation, Stuart F. Delery, Principal Deputy Assistant Attorney General, and Melissa Neiman–Kelting, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

HOWARD, Circuit Judge.

Ming Chen, a native and citizen of the People's Republic of China, petitions this court for review of the Board of Immigration Appeals' (“BIA”) order denying his motion to reopen removal proceedings as untimely. Because Chen failed to satisfy any of the exceptions to the time limit for a motion to reopen, we deny his petition.

I.

Chen entered the United States with a fraudulent passport in June 1997. In January 1998, the legacy Immigration and Naturalization Service served him with a Notice to Appear (“NTA”). The NTA alleged that Chen had entered the United States through fraud or willful misrepresentation, and did not otherwise have a valid immigration entry document, rendering him removable under 8 U.S.C. § 1227(a)(1)(A). Chen submitted an application for asylum and withholding of removal. He claimed that he had been persecuted by the Chinese authorities as the second of three children born to his parents, in violation of China's one-child policy. An immigration judge denied this relief in September 1998. The BIA affirmed this decision in August 2002, and Chen did not seek further review.

Although the next step should have been Chen's removal from the United States, he remained in the country for another nine years. He resurfaced in 2011 to file a motion to reopen his removal proceedings. Attached to this motion to reopen was a successive application for asylum and withholding of removal based on Chen's membership in the China Democracy Party (“CDP”). According to the materials submitted in support of the application, Chen had joined the CDP in 2010 and Chinese government officials had become aware of his political activity in early 2011, exposing him to the risk of persecution if he returned to China. He submitted a letter, purportedly written by his mother, describing how two government officials had visited her home in China to ask questions about Chen's political advocacy. According to her account, they told her that Chen would face imprisonment if he returned to China.

Though Chen's motion to reopen fell well outside the ninety-day deadline set forth in the regulations, see8 C.F.R. § 1003.2(c)(2), Chen argued that his motion was based on changed country conditions in China and therefore the deadline was inapplicable, id. § 1003.2(c)(3)(ii). In particular, he noted that the Chinese government had not initiated crackdowns against the CDP until November 1998—after his last hearing in September 1998—and consequently the persecution of CDP members was by definition a changed country condition. Additionally, he claimed that the Chinese government had moved to suppress pro-democracy groups beginning in 1998 and continuing to the present. Those against whom these actions allegedly have been taken include members of groups operating in the United States who later returned to China.

In March 2012, the BIA denied Chen's motion to reopen as untimely, concluding that he had not demonstrated changed country conditions that would exempt his motion from the deadline imposed in the regulations. It first determined that the letter from Chen's mother lacked indicia of reliability to prove changed country conditions, since the letter was not notarized and, even if it was authentic, it came from “an interested party not subject to examination.” ¹ The BIA further held that Chen's involvement in the CDP only constituted a change in his personal circumstances, and not a change in country conditions.

The BIA next looked to the broader claim that conditions had worsened for the CDP and democracy activists since 1998. Since the CDP had only recently come into existence at the time of Chen's last immigration hearing, the BIA looked at the conditions for democracy activists in general and found that “the treatment of pro-democracy activists at the time of the respondent's last hearing was similar to that described in [the latest country report].” It concluded that, “to the extent that the respondent's motion is not based on a change in his personal circumstances, we nonetheless do not find the respondent has met his burden of showing material, changed conditions in China.” The BIA denied his motion to reopen, and he petitioned us to review this decision.

II.

The BIA has “broad discretion, conferred by the Attorney General, to ‘grant or deny a motion to reopen.’ ” Kucana v. Holder, 558 U.S. 233, 250, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (quoting 8 C.F.R. § 1003.2(a)). Accordingly, we review the BIA's denial of Chen's motion to reopen for abuse of discretion. Smith v. Holder, 627 F.3d 427, 433 (1st Cir.2010). Under this standard, “we uphold the agency's subsidiary findings of fact as long as they are supported by substantial evidence, we review embedded legal conclusions de novo, and we review judgment calls for abuse of discretion.” Id. (quoting Vaz Dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir.2010)) (internal quotation marks omitted). Chen's motion to reopen indisputably fell outside of the time limits prescribed in 8 C.F.R. § 1003.2(c)(2). The question is whether Chen qualifies for an exception to the time limit because his motion is “based on changed circumstances arising in the country of nationality ... [that are] material and ... could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).

Chen's evidence of changed country conditions falls into two categories: 1) evidence that he has become a target of the government since he joined the CDP; and 2) evidence that since 1998 the Chinese government has cracked down on the CDP and pro-democracy groups more generally. The first category of evidence cannot sustain a showing of changed country conditions; it only indicates a change in Chen's personal circumstances. “Under the case law, a change typically will be categorized as a change in personal circumstances, as opposed to a change in country circumstances, if the change is self-induced.” Larngar v. Holder, 562 F.3d 71, 76 (1st Cir.2009). This prevents aliens from repeatedly reopening their removal proceedings based on changes that are within their control. See Wang v. B.I.A., 437 F.3d 270, 274 (2d Cir.2006) (“[I]t would be ironic, indeed, if petitioners like Wang, who have remained in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities.”). This rule applies even if the change in personal circumstances will expose the alien to persecution in his home country. See Khan v. Attorney Gen. of U.S., 691 F.3d 488, 497 (3d Cir.2012) (holding that a petitioner's decision to join the Awami National Party was a change in personal circumstances, despite evidence that ANP members are targeted in Pakistan)...