NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2579
___________
QING CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-457-371)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 18, 2011
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed : 5/19/11 )
___________
OPINION
___________
PER CURIAM
Qing Chen petitions for review of a Board of Immigration Appeals (“BIA”)
decision denying her motion to reopen her immigration proceedings. For the reasons that
follow, we will deny the petition.
Chen is a native and citizen of the People‟s Republic of China who entered the
United States in 2002 using a fraudulent passport. She was placed in removal
proceedings and applied for asylum and related relief, claiming that she had been
persecuted because of her grandparents‟ practice of Falun Gong. The Immigration Judge
(“IJ”) found Chen‟s testimony incredible and denied relief. Chen appealed to the Board
of Immigration Appeals (“BIA”), but her appeal was dismissed in 2004 because she
failed to file a brief.
More than five years later, in late 2009, Chen filed a motion to reopen the
proceedings. She claimed that her personal circumstances had changed in that she had
recently joined the Federation for a Democratic China (“FDC”) in the United States. She
described the group as opposing the present government of China and as focused on
promoting democracy. She claimed that she had participated in the FDC in a variety of
ways, including attending meetings and demonstrations, distributing literature, and
authoring articles published on the internet. Chen feared that she would be persecuted for
her political activities if she returned to China. Chen also claimed that conditions in
China had changed since she had been denied asylum in that the government does not
tolerate any dissent, members of political parties like the FDC are persecuted, “internet
dissidents” are pursued, and the overall situation for freedom and human rights had
worsened.
The BIA denied the motion, concluding that it was untimely and that Chen had not
shown that any exception to the time limitation applied. The BIA found that Chen‟s
membership in the FDC was a change in personal circumstances, rather than in country
conditions, and that her evidence regarding political dissent did not constitute changed
country conditions. The BIA also declined to sua sponte reopen the proceedings.
We have jurisdiction under 8 U.S.C. § 1252 to review the order denying Chen‟s
motion to reopen. A motion to reopen “must be filed no later than 90 days after the date
on which the final administrative decision was rendered in the proceeding sought to be
reopened.” See 8 C.F.R. § 1003.2(c)(2). Chen filed her motion years after the BIA
issued its final decision, and she does not contest its untimeliness. Instead, she sought to
proceed under the exception for motions based on “changed country conditions arising in
the country of nationality . . . if such evidence is material and was not available and
would not have been discovered or presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
We review the BIA‟s denial of Chen‟s motion to reopen for an abuse of discretion
and may reverse only if it is “arbitrary, irrational, or contrary to law.” Shardar v. Att‟y
Gen., 503 F.3d 308, 311 (3d Cir. 2007). We will uphold the BIA‟s factual determinations
if they are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citation
omitted). We may reject those determinations only if the petitioner‟s evidence is such
that “a reasonable factfinder would have to conclude” to the contrary.” Id.
Chen presented much material in support of her motion, including her FDC
membership card, photos of her engaging in FDC events, articles she wrote criticizing the
Chinese government, affidavits regarding her membership in the FDC and the treatment
of political dissidents in China, two articles reporting the arrests or detainment of China
Democracy Party members upon their return to China, and U.S. Department of State
reports. The BIA, however, determined that Chen‟s motion “[did] not meaningfully or
adequately identify how this evidence reflects „changed‟ conditions in China regarding
the treatment of political dissidents, political organizations, or others similarly situated to
the respondent since the respondent‟s hearing in 2003.” Joint Appendix (“JA”) at 3. The
BIA further found that Chen‟s evidence regarding the censorship and control of political
dissent on the internet did not reflect “any new prohibition on pro-democracy activity, but
rather . . . an effort by authorities to address another method of transmitting barred
material.” Id.
Chen argues that the BIA abused its discretion in determining that her evidence
did not show changed country conditions because the Board (1) did not “explicitly
consider” all of the evidence she submitted, and (2) “misevaluated” other evidence which
shows that conditions have worsened for political dissidents since 2003. Pet. Br. At 9, 6.
We disagree. First, the BIA is not required to “expressly parse or refute on the record
each individual argument or piece of evidence offered by the petitioner.” Zheng v. Att‟y
Gen., 549 F.3d 260, 268 (3d Cir. 2008) (citation omitted). Rather, the BIA may express
its consideration of the evidence in a “summary fashion,” so long as a reviewing court is
“able to discern its reasons for declining to afford relief.” Id. In this case, the Board‟s
decision refers to the voluminous materials submitted by Chen and then pinpoints the
salient issues: that Chen‟s membership in the FDC is a change in personal
circumstances, that her evidence did not show that the treatment of political dissidents
has changed since 2003, and that the censorship of dissident activity on the internet
reflects a continuation of the Chinese government‟s repression of political dissent. Thus,
the BIA‟s reasons for denying relief can be discerned and the Board did not abuse its
discretion by failing to expressly discuss each piece of evidence Chen offered.
Moreover, the BIA‟s determination that Chen failed to show changed country
conditions is supported by substantial evidence in the record. Although Chen asserts that
her evidence shows a “new crack down in China on political dissent, as well as . . . a new
trend of arrests and sentences for dissidents who publish anti-[government] articles and
propaganda on the Internet,” Pet. Br. At 10, the Board in essence found that the
government‟s repression of political dissent remained constant. Chen points to two news
articles that detail the arrest of political dissidents who returned to China as evidence that
the Chinese government has recently begun targeting such individuals. However, one of
the dissidents was arrested in 2002, JA at 108, well before Chen‟s hearing. So this does
not support her claim that there is a “new trend of arrests” for dissidents since 2003.
Chen also relies on State Department reports to try to demonstrate that conditions have
worsened since 2003, citing a 2005 report indicating “increased harassment, detention,
and imprisonment” of those perceived to threaten government authority, a 2007 profile
indicating that “persons who participate in high-profile pro-democracy activities in the
United States still run the risk of arrest and imprisonment should they return to China,”1
and a 2008 report indicating “increased” censorship and manipulation of the press and
internet “during major events.” JA at 114, 174, 121.
But the record also reflects that the Chinese government has harshly repressed
political dissent for decades. See, e.g., JA at 171-74 (describing political events from the
1950s onward that provoked a governmental response, including, most recently, the 1989
Tiananmen Square massacre and the 1999 crackdown on the China Democracy Party).
Similarly, the record reflects that the Chinese government has attempted to control and
censor the internet, and to arrest those who disseminate dissident materials via the
internet, since at least 2002. JA at 359-60. In light of this record, the BIA did not abuse
its discretion in concluding that Chen had not provided evidence of changed country
conditions in the form of a new crackdown on political dissent in general, or specifically
on those who make their ant-government views public via the internet. Rather, there is
substantial evidence in the record that supports the BIA‟s determination that the Chinese
Government‟s efforts to control activism via the internet is merely part of its ongoing
history of suppressing dissent and controlling the dissemination of barred ideas and
material.2
1
Chen omitted the portion of the report that noted that some activists had returned to
China “with no apparent problems.” JA at 174.
2
Even if Chen had made the threshold showing required to reopen the proceedings, we
are not persuaded by her arguments on appeal that the evidence she submitted to the BIA
Accordingly, we will deny the petition for review.
demonstrates a reasonable likelihood that she is prima facie eligible for asylum based on
a fear of being arrested for her political opinion. See Kibinda v. Att‟y Gen., 477 F.3d
113, 119 (3d Cir. 2007) (“We [have] made clear that persecution refers only to severe
conduct and does not encompass all treatment our society regards as unfair, unjust or
even unlawful or unconstitutional.”) (citation and internal quotation marks omitted).