Yaner Li v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JUNE 18, 2007

No. 06-15148 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

BIA No. A76-999-987

YANER LI,

a.k.a. Satoshi Wakaizumi,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 18, 2007)

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,

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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

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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.

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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

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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

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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

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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, 257 F.3d at 1302.

Li concedes that she filed her motion to reopen after the 90-day deadline, but

she argues that she presented evidence of changed circumstances that was not

available at her original removal proceedings. We agree. Li submitted her own

affidavit, in which she attested to a fear of persecution based on recent second-

hand reports of a policy of sterilization in her home province. She also presented

her mother’s affidavit that local officials in her hometown had begun recently to

sterilize forcibly women with two or more children. Li’s mother attested to

personal knowledge of three women who were forcibly sterilized after the births of

their second children. The Board found neither Li’s affidavit nor her mother’s

affidavit incredible. See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.

2005) (admonishing the Board to make “clean” credibility findings if credibility is

dispositive).

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Li’s other evidence corroborated her anecdotal evidence of a change in

policy in her province and substantiated her fear that local officials in Fujian have

the incentives and discretion to sterilize women with more than one child. Cf. Guo

v. Gonzales, 463 F.3d 109, 112-13 (2d Cir. 2006) (remanding to Board to

reconsider whether there is an official policy of sterilization in Fujian Province).

The State Department reports state that the “enforcement [of birth control policy]

varied significantly from place to place” because local officials “remained subject

to rewards or penalties based on meeting the population goals set by their

administrative region.” Consistent with Li’s assertions, the 2005 Country Report

also concluded that forced abortion and sterilization continues in certain regions in

China, despite the national policy against it: “[I]mplementation of the [national

birth] policy by local officials resulted in serious violations of human rights.

Reports of forced sterilizations and abortions, in violation of the national law,

continued to be documented in rural areas.” Finally, the 2005 report and the

newspaper articles also record the recently-discovered policy to sterilize thousands

of women in Shandong Province, which led to the arrest of the activist who

uncovered the policy but not punishment of the local officials responsible for the

policy.

The finding of the Board that Li’s evidence involved specific instances of

forced sterilization, not a new policy, is nonsensical. The issue before the Board

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was whether Li’s evidence was material and previously unavailable evidence of

changed conditions in China. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Li’s evidence of

a recent campaign of forced sterilization in her home village, evidence consistent

with the conclusion of recent government reports, clearly satisfied the criteria for a

motion to reopen her removal proceedings.

The Board also made the incomprehensible assertion that Li’s motion failed

because “foreign law is a matter to be proven by the party seeking to rely on it.”

This statement underscores the extent to which the BIA misconstrued the basis for

Li’s motion to reopen proceedings. Li did not argue that China had passed a new

national law requiring sterilization; she argued that local officials had begun a

campaign of extra-legal persecution of women with two children. That Li could

not prove a specific “foreign law” was irrelevant.

The Board erroneously determined alternatively that Li failed to establish a

policy of persecuting women with two foreign-born children, as opposed to native

children, and erroneously assumed that Li’s alleged persecutors would make a

similar distinction. The Board has relied on this distinction before. Although cited

by neither party, in Huang v. INS, the Board reversed the decision of an

Immigration Judge to grant asylum to a Chinese applicant on the basis of a

government report that implied that couples who returned to China with foreign-

born children would not be subject to adverse treatment. 421 F.3d 125, 129 (2d

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Cir. 2005). The Second Circuit concluded that the distinction between native and

foreign-born children was supported by substantial evidence in that record because

the Board “was entitled to rely on [a country report], so long as in doing so it did

not overlook any contradictory evidence directly presented by the petitioner.” Id.

at 129.

In Li’s appeal, the Board invoked this distinction despite the absence of any

evidence in this record, in contrast with Huang, that either the Chinese national

government or local Fujian officials distinguish between parents of children born

abroad and parents of children born in China. In fact, the only evidence in this

record supports the opposite conclusion; the consular information sheet established

that, for some purposes at least, the Chinese government considers foreign-born

children of Chinese nationals equivalent to children born in China. At least two of

our sister circuits have determined that the Board has made this error before. See

Lin v. U.S. Dep’t of Justice, 468 F.3d 167, 168 (2d Cir. 2006), modified, 473 F.3d

48 (2d Cir. 2007) (rejecting the distinction in the light of evidence presented by

applicant in Guo, 463 F.3d 109); Yang v. Gonzales, 427 F.3d 1117, 1119-23 (8th

Cir. 2005) (rejecting the distinction when undermined by applicant’s evidence). In

the light of this record, it was arbitrary and capricious for the Board to rely on this

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factual distinction to determine that Li failed to establish a prima facie case for

asylum or withholding of removal in resolving Li’s motion to reopen.

B. We Need Not Review the Interpretation of the Asylum Statute by the Board.

An application for asylum filed outside the one-year time limit may be

considered if the applicant “demonstrates to the satisfaction of the Attorney

General the existence of changed circumstances which materially affect the

applicant’s eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(D). Ordinarily, “[n]o

court shall have jurisdiction to review any [changed circumstances] determination

of the Attorney General,” id. § 1158(a)(3), but the REAL ID Act provides that

“[n]othing . . . which limits or eliminates judicial review, shall be construed as

precluding review of constitutional claims or questions of law raised upon a

petition for review filed with an appropriate court of appeals in accordance with

this section,” id. § 1252(d), quoted in Chacon-Botero v. U.S. Att’y. Gen., 427 F.3d

954, 957 (11th Cir. 2005).

It is unclear whether the Board found Li’s application for asylum to be

untimely. Li argues that the Board denied her untimely application for asylum

based on an erroneous “conclusion of law” over which we have jurisdiction. The

government argues that “[t]he BIA’s brief discussion of the one-year time limit

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application to asylum application . . . should not be construed as the basis of the

BIA’s decision.”

We conclude that, because we have vacated the BIA’s denial of Li’s motion

to reopen, we need not address whether the BIA reached a “conclusion of law” as

an alternative basis for its decision. The Board denied Li leave to file an untimely

application because the Board concluded 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.” There are many ways to

interpret this sentence but, after supplemental briefing, both parties contend that, at

most, the BIA concluded that an alien under a final order of removal must first

reopen her removal proceedings before filing an untimely application for asylum

based on changed personal circumstances. But see Guan v. Bd. of Immigration

Appeals, 345 F.3d 47, 49 (2d Cir. 2003) (suggesting that an untimely asylum

application based on changed personal circumstances may be filed without

reopening proceedings); 8 U.S.C. § 1158(a)(1) (“Any alien who is physically

present in the United States . . . irrespective of such alien’s status, may apply for

asylum in accordance with this section.”). Regardless of the merits of that

interpretation, we understand the decision of the Board to mean that it will consider

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Li’s untimely application for asylum on remand because Li will no longer be under

“final orders.”

IV. CONCLUSION

We conclude that the Board abused its discretion when it refused to reopen

Li’s removal proceedings after she established a prima facie case of eligibility for

asylum and withholding of removal. We GRANT the petition. We VACATE the

order that denied Li’s motion to reopen and REMAND for further proceedings.

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