Yuen Jin v. Mukasey

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtJohn M. Walker, Jr.
Citation538 F.3d 143
PartiesYUEN JIN, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent; Shan Hu Zheng, Petitioner, v. Bureau of Citizenship and Immigration Services, Respondent; Jiao Fang Chen, Petitioner, v. United States Department of Justice, Attorney General Michael B. Mukasey,<SMALL><SUP>*</SUP></SMALL> Respondents. Hua Zeng, Petitioner, v. Bureau of Citizenship and Immigration Services, Respondent; [0DO] Docket No. 05-5485-ag. [0DO] Docket No. 05-6367-ag. [0DO] Docket No. 06-0004-ag. [0DO] Docket No. 06-2998-ag.
Decision Date15 August 2008
538 F.3d 143
YUEN JIN, Petitioner,
v.
Michael B. MUKASEY,* Attorney General of the United States, Respondent;
Shan Hu Zheng, Petitioner,
v.
Bureau of Citizenship and Immigration Services, Respondent;
Jiao Fang Chen, Petitioner,
v.
United States Department of Justice, Attorney General Michael B. Mukasey,* Respondents.
Hua Zeng, Petitioner,
v.
Bureau of Citizenship and Immigration Services, Respondent; [0DO] Docket No. 05-5485-ag. [0DO] Docket No. 05-6367-ag. [0DO] Docket No. 06-0004-ag. [0DO] Docket No. 06-2998-ag.
United States Court of Appeals, Second Circuit.
Argued: December 12, 2007.
Decided: August 15, 2008.

[538 F.3d 146]

Steven A. Mundie, Baron, Mundie & Shelkin, P.C., New York, N.Y., for Petitioner Jin, No. 05-5485-ag.

Joshua Bardavid (Theodore N. Cox, on the brief), New York, N.Y., for Petitioner Zheng, No. 05-6367-ag.

Yee Ling Poon (Robert Duk-Hwan Kim, the brief), New York, N.Y., for Petitioner Chen, No. 06-0004-ag.

Lorance Hockert, New York, N.Y., for Petitioner Zeng, No. 06-2998-ag.

Mark R. Von Sternberg, C. Mario Russell, Catholic Charities Community Services, New York, N.Y., for Amicus Curiae in Support of Petitioner Zeng in No. 06-26 2998-ag.

Kirti Vaidya Reddy, Assistant United States Attorney, of counsel (Kathy S. Marks, Assistant United States Attorney, of counsel, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Respondents United States Department of Justice and Attorney General Mukasey in Nos. 05-5485-ag, 06-0004-ag.

[538 F.3d 147]

Nancy L. Miller, Assistant United States Attorney (Craig Oswald, Assistant United States Attorney, on the brief), for Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, Chicago, Ill., for Respondent Bureau of Citizenship and Immigration Services in No. 05-6367-ag.

Marvin J. Caughman, Assistant United States Attorney, for Reginald I. Lloyd, United States Attorney for the District of South Carolina, Columbia, S.C., for Respondent Bureau of Citizenship and Immigration Services in No. 06-2998-ag.

Before: WALKER, CABRANES, and SACK, Circuit Judges.

Judge SACK concurs in a separate opinion.

JOHN M. WALKER, JR., Circuit Judge:


These cases, argued in tandem, require us to decide whether an alien subject to a final order of removal who files a successive asylum application based only on changed personal circumstances must also file a motion to reopen based on changed country conditions pursuant to 8 C.F.R. § 1003.2(c)(3)(ii), when the ninety-day deadline has passed for such a motion. Petitioners Yuen Jin, Shan Hu Zheng, Jiao Fang Chen, and Hua Zeng, all Chinese citizens, sought to advance successive asylum claims years after their initial asylum applications were denied and they were ordered removed. Petitioners moved to reopen their proceedings and requested permission to file successive asylum applications, arguing that they were newly eligible for asylum based on the birth of additional U.S.-born children after the entry of their final removal orders.

The Board of Immigration Appeals (BIA) denied the motions and refused leave to file successive asylum petitions because petitioners had alleged only changed personal circumstances and not changed country conditions.1 The latter, the agency concluded, was required for consideration of an untimely motion to reopen, and petitioners could not assert successive asylum claims in the absence of an accompanying motion to reopen pursuant to 8 C.F.R. § 1003.2(c)(3)(ii). The BIA subsequently adopted this conclusion as the holding of its published, precedential opinion, In re C-W-L, 24 I. & N. Dec. 346 (B.I.A.2007). Because we have determined that the agency's interpretation of the relevant statutory provisions is not arbitrary, capricious, or manifestly contrary to the statute, we defer to the BIA's decision in In re C-W-L and accordingly deny the petitions for review.

BACKGROUND

I. Yuen Jin

In December 1998, Petitioner Yuen Jin arrived in the United States from Fujian Province, China, and was detained after presenting a fraudulent passport. In January 1999, the INS served her with a Notice to Appear and placed her in removal proceedings. In May 1999, Jin sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) on the grounds that Chinese authorities forced her to undergo an abortion and that she feared future persecution for illegally departing China.

538 F.3d 148

In September 1999, Jin married Jian Geng Zheng, and in October of that year, she appeared at a hearing before an Immigration Judge (IJ). Finding the petitioner not credible, the IJ issued a decision in December 1999 denying Jin's applications for relief and ordering her removed. In April 2000, while her appeal was pending before the BIA, Jin had her first child. Jin's removal order became final in September 2002 when the BIA affirmed the IJ's decision; Jin did not file a petition for review in this court.

In January 2005, Jin gave birth to her second child, and in July 2005, nearly three years after the BIA issued a final order of removal, Jin filed a motion to reopen her proceedings, claiming that, in light of China's family planning policies, the birth of her second child constituted changed personal circumstances that affected her eligibility for asylum. She also submitted a second asylum application accompanied by supporting documents.

In September 2005, the BIA denied Jin's untimely motion, finding that she had not demonstrated changed country conditions as required for the Board to consider a motion to reopen filed more than ninety days after the entry of a final removal order. The BIA did not address Jin's successive asylum petition but construed Jin's motion only as a motion to reopen. Jin filed a timely petition for review of the Board's decision in this court.

II. Shan Hu Zheng

In December 1994, Petitioner Shan Hu Zheng left Fujian Province, China, for the United States, where she arrived without inspection. She filed an initial asylum application, alleging religious persecution. In November 1995, the IJ denied Zheng's application and ordered her deported, finding that the evidence of harassment that she had presented did not rise to the level of persecution. The BIA affirmed in May 1996.

In October 2000, Zheng married Hong Tao Lin, a naturalized U.S. citizen, and later gave birth to two children — one in February 2002, and another in May 2003. After filing unsuccessful motions to reopen in 1999 and 2002, Zheng filed a third motion to reopen in June 2005, claiming that the birth of her second child constituted changed circumstances that warranted the granting of an untimely motion to reopen and made her newly eligible for asylum. Based on her changed personal circumstances, Zheng argued that she could file a successive asylum application.

In July 2005, the BIA denied the motion as both number-barred and time-barred. The BIA found that Zheng's motion did not fall within an exception to those procedural limitations because the birth of children in the United States did not amount to changed country conditions. Four months later, the BIA reopened Zheng's proceedings sua sponte based on an ineffective assistance of counsel claim. The BIA then reissued its July 2005 decision to enable Zheng to timely file the instant petition for review in this court.

III. Jiao Fang Chen

Petitioner Jiao Fang Chen entered the United States in August 1999 as a non-immigrant visitor without a valid entry document. She was subsequently placed in removal proceedings. In June 2000, she filed applications for asylum, withholding of deportation, and CAT relief, claiming that family planning authorities in China forcibly inserted an IUD after the birth of her first child in 1995, that she had secretly removed it, and that she left China to avoid reinsertion of the device. In June 2000, Chen gave birth to her second child, and at her asylum hearing, Chen claimed that she would be forcibly sterilized if returned

538 F.3d 149

to China, because she now had more than one child.

The IJ denied Chen's claims and ordered her removed after making an adverse credibility determination and finding that Chen had not adduced sufficient persuasive evidence of systematic forced sterilization under China's one-child policy. In April 2002, the BIA summarily affirmed. Chen did not file a petition for review of that decision.

In August 2005, Chen filed a motion to reopen and a new asylum application with the BIA, arguing that her untimely filing should be excused because (1) she was now pregnant with her third child and "would definitely be unable to avoid sterilization," and (2) the enforcement of China's family planning laws had become harsher and more widespread since 2002. The BIA denied the motion as untimely, noting that Chen's third pregnancy was not a change arising in China, that changed personal circumstances did not excuse her late filing, and that no change in China's enforcement policy had occurred. The BIA did not address Chen's new asylum application. Chen now petitions for review of that decision.

IV. Hua Zeng

Petitioner Hua Zeng, born in Fujian Province, arrived in the United States without inspection in March 1999. He applied for asylum, withholding of removal, and relief under the CAT in July of that year. In his asylum application, Zeng stated that he left China because local officials harassed, attacked, and arrested him after he spoke out against the government. In September 1999, he was placed in removal proceedings, and in February 2000, the IJ ordered Zeng removed in absentia when he failed to attend his removal hearing. The February 23, 2000 removal order became final after Zeng failed to appeal the IJ's order.

In June 2000, Zeng filed a motion to reopen his proceedings, alleging that he had missed his master calendar hearing because of circumstances beyond his control. The IJ granted him two weeks to...

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164 practice notes
  • Bhaktibhai-Patel v. Garland, 19-2565
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 27, 2022
    ...proceedings-like all due process claims-must relate to an alleged deprivation of a "liberty or property interest." Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir. 2008); see also U.S. Const. amend. V ("No person shall ... be deprived of life, liberty, or property, without due process of law......
  • Vandermark v. City of New York, No. 08 Civ. 5332(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 4, 2009
    ...v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citations omitted). Accord Yuen Jin v. Mukasey, 538 F.3d 143, 158 (2d Cir. 2008) ("A classification subject to rational basis review `must be upheld against [an] equal protection challenge if there is any r......
  • Vidal v. Nielsen, 16-CV-4756 (NGG) (JO)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 29, 2018
    ...MRNY cannot state a procedural-due-process claim challenging the denial of its members' and clients' requests. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008) (petitioners for asylum lack liberty or property interest in discretionary relief). While the denial of those requests ......
  • Brown v. City of Barre, Case No. 5:10–cv–81.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • July 12, 2012
    ...are similarly situated. ‘[T]he government can treat persons differently if they are not ‘similarly situated.’ ' ” Yuen Jin v. Mukasey, 538 F.3d 143, 158 (2d Cir.2008) (quoting Jankowski–Burczyk v. I.N.S., 291 F.3d 172, 176 (2d Cir.2002)).1. Delinquent v. Non–Delinquent Landlords. With regar......
  • Request a trial to view additional results
164 cases
  • Bhaktibhai-Patel v. Garland, 19-2565
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 27, 2022
    ...proceedings-like all due process claims-must relate to an alleged deprivation of a "liberty or property interest." Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir. 2008); see also U.S. Const. amend. V ("No person shall ... be deprived of life, liberty, or property, without due process of law......
  • Vandermark v. City of New York, No. 08 Civ. 5332(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 4, 2009
    ...v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citations omitted). Accord Yuen Jin v. Mukasey, 538 F.3d 143, 158 (2d Cir. 2008) ("A classification subject to rational basis review `must be upheld against [an] equal protection challenge if there is any r......
  • Vidal v. Nielsen, 16-CV-4756 (NGG) (JO)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 29, 2018
    ...MRNY cannot state a procedural-due-process claim challenging the denial of its members' and clients' requests. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008) (petitioners for asylum lack liberty or property interest in discretionary relief). While the denial of those requests ......
  • Brown v. City of Barre, Case No. 5:10–cv–81.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • July 12, 2012
    ...are similarly situated. ‘[T]he government can treat persons differently if they are not ‘similarly situated.’ ' ” Yuen Jin v. Mukasey, 538 F.3d 143, 158 (2d Cir.2008) (quoting Jankowski–Burczyk v. I.N.S., 291 F.3d 172, 176 (2d Cir.2002)).1. Delinquent v. Non–Delinquent Landlords. With regar......
  • Request a trial to view additional results

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