Wei v. Mukasey
| Decision Date | 07 November 2008 |
| Docket Number | No. 07-9537.,07-9537. |
| Parties | Xiu Mei WEI, Petitioner, v. Michael B. MUKASEY, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lorance Hockert, New York, NY, for Petitioner.
Mark C. Walters, Assistant Director, and W. Manning Evans, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.
Before MURPHY, BRORBY, and HARTZ, Circuit Judges.
Xiu Mei Wei is a native and citizen of the People's Republic of China now living in the United States. In November 2002 she sought asylum in this country based on her fear of persecution under China's one-child policy. But because she had long overstayed her visa, removal proceedings were initiated shortly thereafter. An immigration judge (IJ) rejected her asylum application and ordered her removed to China. In December 2004 the Board of Immigration Appeals (BIA) affirmed that order, and in March 2005 it denied her motions to reconsider and to reopen her asylum proceedings. She filed a second motion to reopen in January 2007, claiming that she had new evidence establishing changed conditions in China and that her fourth pregnancy constituted changed personal circumstances. The BIA denied the motion because she had failed to present new evidence of changed country conditions and her claim based on changed personal circumstances was untimely. Mrs. Wei has petitioned this court to review that denial.
We have jurisdiction under 8 U.S.C. § 1252 and deny Mrs. Wei's petition. The BIA did not abuse its discretion in determining that Mrs. Wei had failed to present any new material evidence of changed country conditions. And changed personal circumstances cannot support an untimely motion to reopen after a final order of removal.
To evaluate the BIA's ruling, we must place it in the context of the procedures for resolving asylum applications and removing aliens unlawfully present in this country.
An alien seeking asylum in the United States must prove that she is a refugee as defined in the Immigration and Nationality Act (INA) § 101(a)(42), 8 U.S.C. § 1101(a)(42) (2006), and then persuade the Secretary of Homeland Security or the Attorney General to exercise his discretion to grant relief, 8 U.S.C. § 1158(b). The term refugee includes "any person ... outside [her] country of ... nationality ... who is unable or unwilling to return to, and is unable or unwilling to avail ... herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1101(a)(42)(A). "[A] person who has a well founded fear that ... she will be forced to undergo" an abortion or sterilization "shall be deemed to have a well founded fear of persecution on account of political opinion." Id. § 1101(a)(42).
In addition to seeking asylum, an alien can apply for restriction on removal, which would preclude her removal to a particular country. Restriction on removal is available under the INA, see INA § 241(b)(3), 8 U.S.C. 1231(b)(3) (2006), or under the United Nations Convention Against Torture (CAT), see Pub.L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822 (1998); 8 C.F.R. § 208.16(c) (2008). Under the INA, restriction on removal is mandatory if an alien can prove that it is more likely than not "that [her] life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A); see INS v. Aguirre-Aguirre, 526 U.S. 415, 419, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (). To be granted relief under the CAT, an alien must show that "it is more likely than not that ... she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2). If the alien can make the requisite showing, she can still be removed from the United States, but only to a third country where her life and freedom would not be at risk. Id. § 208.16(f); see Aguirre-Aguirre, 526 U.S. at 419, 119 S.Ct. 1439.
Ordinarily, an alien may file only one application for asylum, which must be filed within one year of the alien's arrival in this country. 8 U.S.C. § 1158(a)(2)(B)-(C). But § 1158(a)(2)(D) provides an exception to these time and number restrictions "if the alien demonstrates ... the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay." Changed circumstances is not defined in the statute, but the implementing regulations define the term to include both "[c]hanges in conditions in the applicant's country of nationality" and "[c]hanges in the applicant's circumstances that materially affect the applicant's eligibility for asylum." 8 C.F.R. § 208.4(a)(4)(i)(A)-(B).
A removal proceeding is ordinarily "the sole and exclusive procedure for determining whether an alien may be ... removed from the United States." 8 U.S.C. § 1229a(a)(3). A removal proceeding is initiated by issuing to the alien a "notice to appear," id. § 1229(a)(1), and is conducted by an IJ in an immigration court, see id. § 1229a(a)(1). Among the aliens who may be found removable are those who have overstayed their authorized admission. See INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) (2006); Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir.2007) (). Even if an alien is otherwise removable, she may challenge the removal at the hearing before the IJ by seeking asylum or restriction on removal. See INA § 240(c)(4), 8 U.S.C. § 1229a(c)(4) (2006); 8 C.F.R. § 1240.1(a)(1)(ii)-(iii) (2008). At the conclusion of the removal proceeding, the IJ determines whether the alien may be removed from the United States; if so, the IJ enters a removal order. 8 U.S.C. § 1229a(c)(1)(A). The IJ's order may be appealed to the BIA within 30 days of the decision. 8 C.F.R. § 1003.38(b) (2008).
If the BIA affirms the removal order, the alien may move the BIA to reconsider its decision or to reopen her removal proceedings. See 8 U.S.C. § 1229a(c)(6)-(7); 8 C.F.R. § 1003.2(b)-(c). In a motion to reconsider (because of alleged errors in the BIA's analysis), an alien must "specify the errors of law or fact in the previous order," 8 U.S.C. § 1229a(c)(6)(C); in a motion to reopen (to permit consideration of additional information), the alien must "state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material," id. § 1229a(c)(7)(B). An alien may file only one motion to reconsider the decision that she is removable from the United States, and it must be filed within 30 days of entry of the final order of removal. Id. § 1229a(c)(6)(A)-(B); 8 C.F.R. § 1003.2(b)(2). An alien is also limited to only one motion to reopen, which must be filed within 90 days of the order. Id. § 1229a(c)(7)(A)-(C)(i); 8 C.F.R. § 1003.2(c)(2). But the time restriction on motions to reopen does not apply "if the basis of the motion is to apply for relief under sections 1158 [asylum] or 1231(b)(3) [restriction on removal] of this title 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 would not have been discovered or presented at the previous proceeding." Id. § 1229a(c)(7)(C)(ii).1
Mrs. Wei entered the United States in January 1997 on a temporary visa effective until April 1 of that year. She ignored the deadline, but while pregnant with her third child in November 2002, she sought asylum in the United States based on her fear of forced abortion and sterilization if she were to return to China, which has a one-child policy. In the alternative, she sought a restriction on her removal to China under the INA and under the CAT. In February 2003 Mrs. Wei was charged with overstaying her visa and was issued a notice to appear before an immigration judge (IJ). Mrs. Wei conceded removability to the IJ, but reiterated her request for relief in the form of asylum or restriction on removal, under the INA or the CAT.
Mrs. Wei's brief in support of her application for asylum and restriction on removal asserted both changed personal circumstances (becoming pregnant with her third child) and what she termed changed country conditions (the discovery of her third pregnancy by local Chinese officials). She asserted that these changes excused her from having to apply for asylum within one year of entry into the United States. She claimed that the birth of her second child in the United States would have led only to a heavy fine if she had returned to China, but that once she had become pregnant with her third child, she would be forced to undergo an abortion or sterilization.
In support of her application for asylum Mrs. Wei attached a formal notice sent by authorities in Changle City, Fujian Province (her hometown in China), to her mother in October 2002, advising that if Mrs. Wei did not abort her third pregnancy, she or her husband would be sterilized upon their return to China. She also attached proof of her sister-in-law's sterilization in October 2002 and a letter from the sister-in-law informing Mrs. Wei that the Chinese government had forced her to undergo an abortion and sterilization after becoming pregnant with her third child. In addition, Mrs. Wei attached several newspaper articles and two opinions by United States Courts...
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