                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2007

Li v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5541




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                                                                  NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No: 05-5541
                                   _______________

                                       RONG LI,

                                          Petitioner
                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                        Respondent
                                   _______________

                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                (BIA No. A95-362-969)
                         Immigration Judge Donald V. Ferlise
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 11, 2007

            Before: RENDELL, JORDAN and ALDISERT, Circuit Judges

                                 (Filed: May 16, 2007)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Rong Li, a citizen and native of the People’s Republic of China, petitions for

review of the December 9, 2005 decision of the Board of Immigration Appeals (BIA)
denying his motion to reopen proceedings on his application for asylum, for withholding

of removal, and for relief under Convention Against Torture (CAT). Because we

conclude that the BIA abused its discretion in denying that motion, we will grant Li’s

petition for review and remand for further proceedings.

                                             I.

       Li entered the United States at an unknown time and at an unknown place.1 He

claims that he fled China to escape persecution. According to Li, he married his wife on

May 14, 1998, and they had a son on May 28, 1999. He further testified that, on June 30,

1999, Chinese Family Planning officials came to his home to force his wife to have an

intrauterine device (“IUD”) implanted. Li says he asked the officials to postpone the

implantation, and they agreed. In August of 1999, his wife became pregnant. Li testified

that next, on November 11, 1999, several Family Planning officials forcibly took his wife

from his home to implant the IUD. Li was not at home when this occurred. Li claims

that, when the officials discovered that she was pregnant, they forced her to undergo an

abortion and, afterwards, have an IUD inserted. Li also claims that the IUD fell out of his

wife’s body and his wife became pregnant again in April of 2000. Consequently, his wife

went into hiding to avoid another forced abortion. Li testified that the Family Planning

officials later came to his house to perform an IUD checkup on his wife on three



  1
    Li claims that he entered the United States on or about January 1, 2001, but the
Immigration Judge held that Li did not establish that he entered the United States at that
time. The BIA affirmed and adopted the Immigration Judge’s determination.

                                             2
consecutive days. According to Li, when she was not present on the third day, the

officials took him into custody, beat him, and demanded that he tell them where his wife

was hiding. They released him after he promised that he would bring her to them in two

days. Li then went into hiding with his wife.

       Li claims that after he went into hiding, the Family Planning officials told his

father that if Li’s wife did not return and report to their office, they would incarcerate her.

At that point, Li alleges that he and his relatives made plans for him to come to the United

States. He claims that his wife did not accompany him because she was pregnant. When

asked by the Immigration Judge why he escaped to the United States instead of his wife,

Li responded that he believed he was facing jail time since his wife had undergone a

previous abortion. Li claims that the Family Planning officials later found his wife,

forced her to undergo an abortion, and fined them 10,000 RMB. He further claims that

his wife received a notification from the government that he needed to report for

sterilization.

       The Immigration Judge determined that Li was not eligible for asylum because he

did not sustain his burden of showing that he submitted his application within a year of

his arrival into the United States. The Immigration Judge also denied his application for

withholding of removal and relief under CAT, finding that Li was “totally incredible”

because of a number of unexplained inconsistencies in his testimony and because he

exhibited a demeanor of one not telling the truth. On appeal, the BIA adopted and

affirmed the decision of the Immigration Judge. Li subsequently filed a timely motion to

                                               3
reopen the proceedings, claiming he had previously unavailable evidence that

demonstrated “new and changed circumstances.” The evidence is a purported affidavit

from Li’s wife, asserting that the Chinese government recently initiated a family-planning

campaign in their area. According to that document, the Chinese government singled out

Li’s family during the campaign as an example of violating the government’s family-

planning policies. The document further states that government officials pressed Li’s

wife to hand over her husband for sterilization or they would force her to undergo

sterilization despite her weak health condition. As a result, Li’s wife decided to return

into hiding.

       The BIA denied Li’s motion to reopen the proceedings. It stated that Li had

already alleged in his previous petition that the Chinese government wanted to sterilize

him and that he had not “presented new and previously unavailable evidence that would

warrant a reopening of his case and a remand for a new hearing.” The BIA also stated

that, if Li’s allegations were true, it seemed that “he prefers to have his case reopened for

a new hearing rather than return to China to prevent the sterilization of his wife, who he

claims cannot tolerate a sterilization operation due to poor health.” Li now asserts that

the BIA abused its discretion when it denied his motion to reopen the proceedings

because the affidavit is new evidence of changed circumstances in his village. The BIA

had jurisdiction over Li’s motion to reopen under 8 C.F.R. § 1003.2(c). We have

jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252(a).

                                             II.

                                              4
       We review the denial of a motion to reopen for abuse of discretion. INS v. Abudu,

485 U.S. 94, 105 (1988); Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). The BIA’s

decision “will not be disturbed unless [it] is found to be arbitrary, irrational, or contrary to

law.” Guo, 386 F.3d at 562.

       Under 8 C.F.R § 1003.2(c)(1), the BIA has discretion to reopen proceedings if the

movant states new facts to be proved at a hearing that are supported by affidavits or other

evidentiary material. That new evidence must be material and have been unavailable at

the former hearing. Id. There are three principal grounds to deny a motion to reopen

immigration proceedings: first, where the movant has not established a prima facie case

for relief sought; second, where the movant has failed to introduce previously

unavailable, material evidence that justifies reopening; and third, where the ultimate grant

of relief is discretionary, the Board can determine that, even if the first two criteria are

met, the movant would still not be entitled to a discretionary grant of relief. Sevoian v.

Ashcroft, 290 F.3d 166, 169-70 (3d Cir. 2002) (citing INS v. Abudu, 485 U.S. 94, 105

(1988)).

       The BIA denied Li's motion to reopen because the affidavit from Li's wife “simply

alleges that the government wants to sterilize the respondent, a claim that has already

been made.” Denying a motion to reopen solely because a movant submits evidence that

relates to a claim he has already made is not an appropriate exercise of discretion. Rather,

when considering a motion to reopen in the context of withholding of removal, the BIA

must determine whether the proffered evidence was previously unavailable, whether it is

                                               5
material, or whether it fails to establish a prima facie case for relief. Sevoian, 290 F.3d at

170.

       The BIA stated that it was denying the motion because Li had not, “in [its] view,

presented new and previously unavailable evidence that would warrant a reopening of his

case and a remand for a new hearing.” However, the BIA did not explain why the

affidavit was not new and previously unavailable. The letter contained evidence

regarding a new event, namely a recently initiated family-planning campaign in his area,

along with the Chinese government’s pressure on his wife to turn him in for sterilization.

He also claims that the evidence was previously unavailable, because the campaign took

place after his proceedings before the IJ and the BIA. Moreover, if the affidavit is what it

purports to be and is credible,2 Li would have a prima facie case for withholding of

removal. See 8 U.S.C. § 1231(b)(3)(A) (“[T]he Attorney General may not remove an

alien to a country if the Attorney General decides that the alien’s life or freedom would be

threatened in that country because of the alien’s race, religion, nationality, membership in

a particular social group, or political opinion.”); 8 U.S.C. § 1101(a)(42) (“[A] person who

has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has

been persecuted for failure or refusal to undergo such a procedure or for other resistance

to a coercive population control program, shall be deemed to have been persecuted on

account of political opinion, and a person who has a well founded fear that he or she will


  2
    We neither state nor imply any opinion with respect to such evidentiary
considerations.

                                              6
be forced to undergo such a procedure or subject to persecution for such failure, refusal,

or resistance shall be deemed to have a well founded fear of persecution on account of

political opinion.”).

       Although the BIA’s conclusion ultimately might be correct, it must explain why it

determined that the affidavit was not new and previously unavailable evidence, or it must

provide alternative legal grounds for denying Li’s motion. See Awolesi v. Ashcroft, 341

F.3d 227, 232-33 (3d Cir. 2003) (setting aside the BIA’s final decision and remanding for

further proceedings when the BIA failed to provide an explanation as to why it concluded

that the evidence was insufficient to establish persecution); Sotto v. INS, 748 F.2d 832,

836 (3d Cir. 1984) (finding that the BIA abused its discretion when it did not articulate its

reasons for discrediting an affidavit in support of the applicant when that affidavit on its

face constituted substantial evidence). Having not done so before denying the motion to

reopen, the BIA abused its discretion. See Bhasin v. Gonzles, 423 F.3d 977, 987 (9th Cir.

2005) (concluding that the BIA abused its discretion in refusing to reopen proceedings

where the movant presented new evidence that if proved would have established prima

facie eligibility for relief); cf. Guo v. Ashcroft, 386 F.3d 556, 562-66 (3d Cir. 2004)

(concluding that the BIA abused its discretion when it denied the movant's motion to

reopen after she had presented new facts that established a prima facie case for relief

because the BIA impermissibly relied on a prior unrelated adverse credibility

determination when denying that motion).

                                             III.

                                              7
      Accordingly, we will grant Li’s petition for review, vacate the BIA’s December 9,

2005 decision denying Li’s motion to reopen, and remand the case to the BIA for further

proceedings consistent with this opinion.




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