Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-10-2009
Li v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4656
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4656
FENG YING LI,
Appellant
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77-234-282
(U.S. Immigration Judge: Honorable Paul Grussendorf)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 10, 2008
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.
Filed: April 10, 2009
___________
OPINION OF THE COURT
___________
PER CURIAM.
Feng Ying Li, a native and citizen of the People’s Republic of China, entered the
United States in September 1998. She appeared before an Immigration Judge (“IJ”) and
conceded that she was removable for entering without a valid entry document. See
Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C.
§ 1182(a)(7)(A)(i)(I)]. Li applied for asylum, withholding of removal, and relief under
the United Nations Convention Against Torture (“CAT”). She alleged that family
planning officials sought to forcibly sterilize her because she attempted to remove an
IUD. The IJ denied relief, finding Li’s allegations not credible. The Board of
Immigration Appeals (“BIA”) affirmed without opinion in September 2002. Although
the BIA granted voluntary departure, Li remained in the United States.
In 2005, Li submitted a “Motion to File Successive Asylum Application,” claiming
that the birth of her second child in 2003 constituted a changed circumstance which
materially affected her eligibility for asylum. The Board denied the motion. Li filed a
petition for review. Before briefing was complete, we granted the government’s
unopposed motion to remand to the BIA. Our order directed the BIA to consider the
relationship between INA § 208(a)(2)(D) [8 U.S.C. § 1158(a)(2)(D)] and INA
§ 240(c)(7)(C)(ii) [8 U.S.C. § 1229a(c)(7)(C)(ii)]. (Li v. Att’y Gen., C.A. No. 05-4150).
Aliens who apply for asylum must do so within one year after arrival in the United
States. See INA § 208(a)(2)(B) [8 U.S.C. § 1158(a)(2)(B)]. In addition, an alien who has
filed an asylum application that has been denied may not apply again for asylum. See
INA § 208(a)(2)(C) [8 U.S.C. § 1158(a)(2)(C)]. Pursuant to INA § 208(a)(2)(D) and its
implementing regulations, however, an alien may file a successive or untimely asylum
application based on, inter alia, “changed circumstances which materially affect the
2
applicant’s eligibility for asylum.” The term “changed circumstances” arguably
encompasses changed personal circumstances, such as the birth of children in the United
States. See 8 C.F.R. § 1208.4(a)(4)(i)(A)-(B). The other statute to which we referred in
our remand order, INA § 240(c)(7)(C)(ii), excuses the 90-day deadline for filing a motion
to reopen where the alien seeks to apply for asylum based on “changed country conditions
arising in the country of nationality or the country to which removal has been ordered.”
INA § 240(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii) (providing that the limit on
filing “only one motion to reopen,” 8 C.F.R. § 1003.2(c)(2), does not apply where the
alien demonstrates “changed circumstances arising in the country of nationality”). Thus,
under this statutory and regulatory scheme, changed personal circumstances may permit
the filing of a successive or untimely asylum application under INA § 208(a)(2), but
cannot excuse the time and numerical limitations applicable to motions to reopen.
On remand, the BIA concluded that “section 208(a)(2)(D) does not provide an
independent basis for filing a late motion to reopen to apply for asylum without the
showing of changed country conditions required by section 240(c)(7)(C) of the Act.”
Relying on its decision in In re C-W-L-, 24 I. & N. Dec. 346 (BIA 2007), the BIA
reasoned that INA § 240(c)(7)(C) would be rendered superfluous – in violation of the rule
that every clause of a statute should be given effect – if aliens subject to final orders of
removal could file successive or untimely asylum applications based solely on changed
3
personal circumstances. Consequently, the BIA again denied Li’s motion. Li filed a
petition for review of the BIA’s decision.
We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C.
§ 1252]. We review the BIA’s denial of a motion to reopen for abuse of discretion, Lu v.
Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001), and will not disturb the decision unless it was
arbitrary, irrational or contrary to law. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d
Cir. 2002).
Li argues that INA § 208(a)(2)(D) provides aliens subject to a final order of
removal with an independent basis for filing an untimely asylum application based on
changed personal circumstances, without meeting the “changed country conditions”
requirement for reopening immigration proceedings under INA § 240(c)(7)(C)(ii). We
recently rejected a similar argument in Liu v. Attorney General, – F.3d –, 2009 WL
250102, at *4-5 (3d Cir. Feb. 4, 2009), holding that INA § 208(a)(2)(D) “allows
successive asylum applications only within the 90-day reopening period for orders
denying asylum unless the alien can show changed country conditions on the required
accompanying motion to reopen.” For the reasons stated in Liu, we conclude that the
BIA properly required Li to comply with the procedural requirements for filing a motion
to reopen.1
1
The BIA concluded that Li’s motion was untimely and rejected her attempts to satisfy
the exceptions to the time bar. In particular, the Board held that the birth of Li’s second
child constituted a change in personal circumstances and that the evidence she submitted
4
For the foregoing reasons, we will deny the petition for review.
was insufficient to establish changed country conditions. Li does not contest these
findings on appeal. She does, however, challenge the BIA’s conclusion that treaty
obligations under the CAT, the United Nations Protocol Relating to the Status of
Refugees, and the International Covenant on Civil and Political Rights supersede INA
statutory requirements for reopening and filing successive asylum applications. This
contention lacks merit. See Jin, 538 F.3d at 159-60 (rejecting similar argument because
the treaties are not self-executing and do not confer rights beyond those granted by the
implementing legislation, because there is a presumption against inferring individual
rights from international treaties, and because there was no evidence that the BIA’s
holding conflicts with principles of customary international law).
5