Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-28-2007
Huang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3013
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3013
HAI FAN HUANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES,
Respondents
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A73-476-699
(U.S. Immigration Judge: Honorable William Strasser)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2007
Before: SCIRICA, Chief Judge, RENDELL and FUENTES, Circuit Judges.
(Filed September 28, 2007)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Hai Huang petitions for review of the Board of Immigration Appeals’ May 19,
2006, order denying as untimely his motion to reopen his immigration proceedings. We
will deny the petition and affirm the BIA’s order.
I.
Huang, a native and citizen of China, entered the United States without valid travel
documentation on December 22, 1994. On December 27, 1994, he was placed in
exclusion proceedings by the former Immigration and Naturalization Service (INS),
which filed a Notice to Applicant for Admission with the Immigration Court: the INS
charged Huang with inadmissibility for his lack of a valid entry or travel documentation.
Huang filed an application for political asylum on January 12, 1995. At a hearing before
an Immigration Judge on February 6, 1996, Huang conceded his inadmissibility, but
renewed his request for asylum, and also sought withholding of removal and relief under
the Convention Against Torture. He testified he feared future persecution in China
because (1) he wanted to have more than one child but would be prevented from doing so
by China’s coercive population control policies, and (2) he was a practicing Christian.
At the conclusion of the hearing, the IJ denied Huang’s requests for relief and
ordered his exclusion and removal from the United States. The IJ found Huang had failed
to establish a well-founded fear of future persecution, because (1) he was unmarried and
childless and (2) it was unclear what consequences he would face for practicing
Christianity in China, particularly as he conceded his churchgoing Christian siblings had
not been harmed since his departure. Huang appealed the IJ’s decision to the BIA, which
agreed he had failed to establish a well-founded fear of persecution and dismissed the
appeal on February 28, 1998, affirming the order of exclusion and removal. But Huang
never left the United States. On December 10, 1999, he married Jianyan Zheng, and the
2
couple now has two children born in the United States: a son born in 2000 and a daughter
born in 2004.
On March 3, 2006, Huang filed a “Motion to File Successive Asylum Application
Pursuant to 8 C.F.R. § 208.4” with the BIA, citing the birth of his two children as
changed personal circumstances entitling him to asylum. Because of these changed
circumstances, he contended, he was allowed to file a successive asylum application
beyond the normal application deadline of one year from an alien’s arrival in the United
States, established by section 208(a)(2)(B) of the Immigration and Nationality Act
(“INA”). Section 208(a)(2)(D) of the INA states:
An application for asylum of an alien may be considered, notwithstanding
subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of
the Attorney General either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application within the period
specified in subparagraph (B).
8 U.S.C. § 1158(a)(2)(D). Regulations implementing INA § 208(a)(2)(D), in turn, define
“changed circumstances” to include “[c]hanges in the applicant’s circumstances that
materially affect the applicant’s eligibility for asylum, including changes in applicable
U.S. law and activities the applicant becomes involved in outside the country of feared
persecution that place the applicant at risk.” 8 C.F.R. § 208.4(a)(4)(B) (2007).
More importantly, Huang contended, the fact that his changed personal
circumstances put him within the purview of INA § 208(a)(2)(D) and 8 C.F.R. §
208.4(a)(4)(B) also meant that he was not required to file a motion to reopen his
3
immigration proceedings. INA § 240 generally requires that such motions to reopen be
filed with the BIA “within 90 days of the date of entry of a final administrative order of
removal,” 8 U.S.C. § 1229a(c)(7)(C)(i), but waives the deadline for motions to reopen
that rely on evidence of “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); see also 8 C.F.R. § 1003.2(c)(ii) (2007)
(establishing substantially identical standard). This deadline waiver for purposes of a
motion to reopen obviously applies to a narrower range of situations (specifically,
changed country conditions) than that covered by 8 C.F.R. § 208.4(a)(4)(B)’s definition
of “changed circumstances” for purposes of successive asylum petitions.
The BIA rejected Huang’s argument. It found INA § 208(a)(2)(D)’s waiver of the
one-year asylum application deadline in cases involving “changed circumstances which
materially affect the applicant’s eligibility for asylum” did not apply to successive
applications by aliens already under a final administrative order of exclusion or removal.
Rather, the BIA found aliens already under a final administrative order of exclusion or
removal are bound by INA § 240’s filing deadline for motions to reopen. Finding
Huang’s filing to be a motion to reopen, it held that the birth of children in the United
States did not constitute changed conditions sufficient to waive INA § 240’s ninety-day
filing deadline, and denied his motion as untimely. Huang timely appeals.
II.
4
The BIA had jurisdiction over Huang’s motion to reopen under 8 C.F.R. §
1003.2(c). We have jurisdiction over his timely petition for review under 8 U.S.C. §
1252.
BIA fact-finding is reviewed for substantial evidence. 8 U.S.C. § 1252(b)(4)(B).
“This Court reviews the BIA’s legal determinations de novo, subject to the principles of
deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837,
844 (1984).” Briseno-Flores v. Attorney Gen., 492 F.3d 226, 228 (3d Cir. 2007).
Chevron established a two-step process for judicial review of an administrative agency’s
interpretation of statutes: if the unambiguous intent of Congress is clear from the text of
the statute, then the court and the agency must give it effect; but if the statute is silent or
ambiguous, “the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Chevron, 467 U.S. at 843. In the latter situation,
where Congress has explicitly or implicitly left a gap in the statute for the agency to fill,
the agency’s “legislative regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844. Ultimately, a court
“may not substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.” Id. We have held “that the BIA
should be accorded Chevron deference for its interpretations of the immigration laws.”
Chen v. Ashcroft, 381 F.3d 221, 224 (3d Cir. 2004). Moreover, “[i]t is well settled that a
court must afford substantial deference to an agency’s interpretation of its own
5
regulations.” Mercy Home Health v. Leavitt, 436 F.3d 370, 377 (3d Cir. 2006) (citing
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).
Motions to reopen are granted “only under compelling circumstances.” Guo v.
Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). The Supreme Court has noted the Attorney
General has broad discretion to grant or deny motions to reopen, and they are “disfavored
. . . . This is especially true in a deportation proceeding, where, as a general matter, every
delay works to the advantage of the deportable alien who wishes to remain in the United
States.” INS v. Doherty, 502 U.S. 314, 323 (1992). Accordingly, we review the denial of
a motion to reopen for abuse of discretion, and will only disturb the BIA’s decision if it is
arbitrary, irrational, or contrary to the law. Guo, 386 F.3d at 562.
III.
A.
Huang contends the statutory and regulatory provisions for successive asylum
petitions are wholly separate from, and independent of, those for motions to reopen. As
an alien whose personal circumstances have allegedly changed such that he now has a
well-founded fear of future persecution should he be removed to China, he contends he is
entitled to file a successive petition for asylum now, more than eight years after the BIA
affirmed his order of exclusion and removal. The government contends aliens who are
under a final administrative order of exclusion or removal (as Huang is) must file a
motion to reopen their immigration proceedings as a pre-requisite to filing a successive
asylum petition. We find the government’s conclusion is neither arbitrary nor capricious.
6
Huang’s argument chiefly relies on the history of 8 C.F.R. § 208.4, which defines
“changed circumstances” for purposes of INA § 208(a)(2)(D). In its proposed form, the
regulation stated “changed circumstances” referred to “circumstances materially affecting
the applicant’s eligibility for asylum that have arisen . . . since the denial of the last
asylum application by the alien.” Asylum Procedures, 62 Fed. Reg. 444, 463 (proposed
Jan. 3, 1997) (to be codified at 8 C.F.R. § 208.4(a)(2)). The proposed rule specified that
“[c]hanged circumstances arising after the denial of the application but before the alien’s
departure or removal from the United States shall only be considered as part of a motion
to reopen . . . .” Id. By its plain language, this last provision would seem to have applied
to Huang: aliens whose applications for asylum had been denied and who were under a
final administrative order of exclusion or removal would have been required to file a
motion to reopen when changed circumstances had arisen that materially affected their
eligibility for asylum.
But in the final version of the regulation, the language about motions to reopen
was omitted from the definition of “changed circumstances.” Compare id. with 8 C.F.R.
§ 208.4(a)(4) (1998). Explaining the change, the INS stated:
Because of inconsistency between the formulation of changed
circumstances in [INA] section 208(a)(2)(D) and the formulation in [INA]
section 240(c)(5)(ii) . . . , which permits an alien to file a motion to reopen
beyond the time limit normally applicable to such a motion, the Department
has decided to drop the requirement that, for purposes of the prohibition in
[INA] section 208(a)(2)(C), such exception may only be raised through a
motion to reopen.
7
Asylum Procedures, 62 Fed. Reg. 10,312, 10,316 (Mar. 6, 2007). Huang contends “[t]his
language could not be more clear on its face: an alien seeking to [file] a successive and
untimely asylum application based upon materially changed personal circumstances need
not reopen his prior asylum application pursuant to 8 C.F.R. § 1003.2 to apply for this
relief.” Huang Br. 13.
In denying his motion, the BIA stated Huang was still required to file a motion to
reopen: notwithstanding 8 C.F.R. § 208.4, “[t]he reopening restrictions [of INA § 240 and
8 C.F.R. § 1003.2] are additional limitations on the ability of aliens to use either asylum
or withholding claims as a means of reopening final[] orders of exclusion, deportation, or
removal.” In re Hai Huang, No. A73-476-699, at 2 (BIA May 19, 2006). INA § 208 and
8 C.F.R. § 208.4’s provisions on successive asylum applications, it added, “are separate
from, and apply principally at an earlier stage of the proceedings than, the 90-day
reopening provisions . . . .” Id. Elaborating, the BIA stated:
An alien who has completed his or her proceedings before an [IJ], and
possibly the [BIA], and has not departed once reopening time has expired,
is not in the same position as one who has only missed the 1-year deadline
or whose earlier claim was denied in an order that has not ripened into a
final order of removal.
Id. The BIA quoted Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006), in which the Court
of Appeals for the Second Circuit affirmed the BIA’s denial of a motion to reopen that
relied on the birth of children in the United States, and in the process distinguished
between asylum applications and motions to reopen:
8
When considering the initial application of an asylum-seeker who has had
more than one child at the time of his initial application and may, therefore,
be subject to forcible sterilization in his country of citizenship, the BIA has
the discretionary authority either to grant the petition based upon the
evidence presented or to find that the petitioner has failed to establish a
well-founded fear of future persecution. It is quite a different situation,
however, where a petitioner is seeking to reopen his asylum case due to
circumstances entirely of his own making after being ordered to leave the
United States. In such a situation, it would be ironic, indeed, if petitioners .
. . who have remained in the United States illegally following an order of
deportation . . . were permitted to have a second and third bite at the apple
simply because they managed to marry and have children while evading
authorities. This apparent gaming of the system in an effort to avoid
deportation is not tolerated by the existing regulatory scheme. The law is
clear that a petitioner must show changed country conditions in order to
exceed the 90-day filing requirement for seeking to reopen removal
proceedings. A self-induced change in personal circumstances cannot
suffice.
Wang, 437 F.3d at 274 (citations omitted).
We find the logic of Wang equally applicable to successive asylum applications
such as Huang’s: an alien who has ignored his final administrative order of removal for
more than eight years cannot then short-circuit INA § 240 and 8 C.F.R. § 1003.2’s
procedural requirements for motions to reopen by couching his request for relief as a
successive asylum petition on the basis of changed personal circumstances under INA §
208 and 8 C.F.R. § 204.8. Absent a showing of changed circumstances in China, Huang
is bound by the ninety-day deadline for filing a motion to reopen.
As the government notes, Congress “has not directly spoken to the specific issue of
whether an alien with a final administrative order is required to file a motion to reopen his
proceedings in conjunction with an untimely or successive asylum application.” Gov’t
9
Br. 10. Congress has expressly delegated to the Attorney General the duty to establish
procedures for considering asylum applications, and we cannot say the BIA’s requirement
that an alien under a final administrative order of exclusion or removal must file a motion
to reopen is an arbitrary or capricious interpretation of the immigration laws. This
interpretation was set forth in a recent decision from the Court of Appeals for the Seventh
Circuit. See Chen v. Gonzales, ___ F.3d ___, 2007 WL 2389766, at *1 (7th Cir. Aug. 23,
2007) (holding, where alien under final removal order sought leave to file successive
asylum application on basis of two American-born children, that procedural requirements
for motions to reopen “govern[], and so the petition for review must be denied”). But see
Haddad v. Gonzales, 437 F.3d 515, 518–19 (6th Cir. 2006) (stating, where denial of
alien’s motion to reopen as untimely was affirmed but alien had never filed her own
application for asylum because she was listed as a dependent on her then-husband’s
application, that changed personal circumstance of divorce might allow alien to file
asylum application under INA § 208(a)(2)(D)); Guan v. BIA, 345 F.3d 47, 49 (2d Cir.
2003) (per curiam) (stating in dicta that alien, the denial of whose motion to reopen as
untimely was affirmed, might still be able to file a successive asylum application under
INA § 208(a)(2)(D) on the basis of changed personal circumstances).
The BIA’s interpretation here is consistent with related regulations. See, e.g., 8
C.F.R. § 1208.4(b)(3)(ii) (2007) (requiring that an alien who files his first asylum
application only after the conclusion of exclusion or removal proceedings must do so “in
conjunction with a motion to reopen pursuant to 8 CFR part 1003 where applicable [that]
10
reasonably explain[s] the failure to request asylum prior to the completion of the
proceedings”).
Further, accepting Huang’s argument that he may file a successive asylum
application here could, as the government contends, render superfluous INA § 240 and 8
C.F.R. § 1003.2’s requirement that motions to reopen be filed within ninety days absent
changed country conditions: as noted, the definition of “changed circumstances” for
purposes of successive asylum applications is more expansive than that for purposes of
motion to reopen; and aliens for whom the avenue of a motion to reopen is properly
foreclosed could nonetheless style their requests for relief as successive asylum
applications to be considered under the more permissive standard. See Chen v. Gonzales,
___ F.3d at ___, 2007 WL 2389766, at *1 (“The distinction that [INA § 240] . . . makes
between changed country conditions and changed personal conditions is sensible, since
the alien can manipulate the latter but not the former.”).
Finally, the regulatory history of 8 C.F.R. § 208.4(a)(4)(B) is not unambiguous.
The INS did not state that the procedural requirements for motions to reopen were being
displaced by those for successive asylum applications in cases involving changed
personal circumstances. Rather, it explained that the language about motions to reopen
was dropped from the final version of 8 C.F.R. § 208.4(a)(4) because the definition of
“changed circumstances” in reopening differs from that in successive asylum
applications. See 62 Fed. Reg. at 10,316; see also Chen v. Gonzales, ___ F.3d at ___,
11
2007 WL 2389766, at *1 (stating “[t]here is no conflict” between the separate regimes for
motions to reopen and successive asylum applications as currently written).
B.
Having determined the BIA properly construed Huang’s March 3, 2006, filing as a
motion to reopen his immigration proceedings, we next consider whether the BIA abused
its discretion in denying the motion as untimely. We conclude it did not.
Huang’s motion was filed more than eight years after the BIA affirmed his order of
exclusion and removal. The BIA found the birth of two children in the United States did
not constitute “changed circumstances arising in the country of nationality or in the
country to which deportation has been ordered” as required by INA § 240(c)(7)(C)(ii) and
8 C.F.R. § 1003.2(c)(ii) to waive the ninety-day deadline for motions to reopen. We
agree that Huang’s changed personal circumstances are distinct from changed
circumstances arising in China. Thus we agree with the Courts of Appeals for the Second
and Seventh Circuits, which have held that changed personal circumstances do not fall
under this exception. See Wang, 437 F.3d at 274; Zhao v. Gonzales, 440 F.3d 405, 407
(7th Cir. 2005) (per curiam). Furthermore, Huang has failed to demonstrate changed
circumstances in China to justify reopening his asylum proceedings. Although Huang
provides some evidence showing China’s enforcement of its coercive population control
policies,1 he fails to show any changed circumstances regarding these policies.
1
The principal evidence supporting Huang’s motion (aside from his children’s birth) is
(continued...)
12
IV.
We will deny the petition and affirm the BIA’s order.
1
(...continued)
an affidavit, dated 2003, from a specialist on Chinese demographic developments and
population policy, John Aird. But the “oft-cited Aird affidavit,” Wang, 437 F.3d at 275,
has been significantly undermined. The BIA in In re C– C–, 23 I. & N. Dec. 899 (2006),
convincingly argued against further reliance on the Aird affidavit where petitioners for
asylum contend they will be subject to persecution in the form of forced abortion or
sterilization in China for having foreign-born children. Aird (who retired from the
Census Bureau more than twenty years ago and died in October 2005) based his affidavit
not on personal knowledge, but on documents mainly from the 1980s and 1990s that are
in conflict with a more recent 2005 State Department report on conditions in China. Id. at
901–02. Further, the Aird affidavit “only briefly discusses” a 2004 State Department
report “as it relates to citizens returning to China with foreign-born children.” Id. at 901;
see also Wang, 437 F.3d at 275, 274 (noting the Aird affidavit had been submitted in
more than 200 cases since 1993, and rejecting reliance on it where the affidavit “was not
prepared specifically for petitioner and is not particularized as to his circumstances”).
13