Cheng Xi Li v. U.S. Attorney General

[DO NOT PUBLISH]

FILED
IN THE UNITED STATES COURT OF APPEALS
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FOR THE ELEVENTH CIRCUIT JANUARY 15, 2009
________________________ THOMAS K. KAHN
CLERK
No. 08-11061
Non-Argument Calendar
________________________

Agency No. A97-391-147

CHENG XI LI,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(January 15, 2009)

Before DUBINA, BLACK and BARKETT , Circuit Judges.

PER CURIAM:
Petitioner Cheng Xi Li, a female native and citizen of China represented by

counsel, seeks review of the Board of Immigration Appeals’ (“BIA’s”) order

denying her motion to file a successive asylum application or to reopen removal

proceedings under the Immigration and Nationality Act (“INA”) or the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT”).1

Li, who previously applied for asylum, withholding of removal, and CAT

relief without success, moved to reopen the proceedings based on materially

changed circumstances in connection with: (i) China’s one-child family policy,

particularly after Li gave birth to a child in this country; and (ii) its treatment of

political dissidents. The BIA denied her motion, however, and Li now argues that

it abused its discretion in this respect and failed to consider her CAT-related claim.

The government responds that we lack jurisdiction over the latter claim because Li

did not raise it in her motion to reopen.

1
Li did not file the present petition for review within 30 days of the issuance of the original
order of removal. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). This limit is “mandatory and
jurisdictional,” Dakane v. U.S. Attorney Gen., 399 F.3d 1269, 1272 n. 3 (11th Cir. 2005), and the
filing of a motion to reopen does not affect the need to file a separate petition appealing the removal
order. Stone v. INS, 514 U.S. 386, 394, 115 S. Ct. 1537, 1543-44, 131 L. Ed. 2d 465 (1995).
Accordingly, we do not have jurisdiction to review any of the findings underlying the original
removal order, including the Immigration Judge (“IJ”) and BIA’s determination that Li knowingly
filed a frivolous asylum application.
2
I.

Under the Illegal Immigration Reform and Immigrant Responsibility Act,

Pub.L. 104-208, 110 Stat. 3009-546 (1996) (“IIRIRA”), successive asylum

applications are barred, unless the applicant demonstrates “the existence of

changed circumstances which materially affect the applicant’s eligibility for

asylum.” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D); Najjar v. U.S. Att’y Gen.,

257 F.3d 1262, 1280 n.8 (11th Cir. 2001).

Nevertheless, section 208(d)(6) of the INA provides that an alien who makes

a frivolous application despite having received notice of the consequences of so

doing, “shall be permanently ineligible for any benefits under [the INA].” 8 U.S.C.

§ 1158(d)(6). The implementing regulation describes a frivolous application as

one in which the IJ or the BIA, after first being satisfied that the applicant had been

provided with an opportunity to account for discrepancies and implausible aspects

of the application, finds that “any of its material elements is deliberately

fabricated.” 8 C.F.R. § 1208.20.

In the present case, we conclude from the record that Li has failed to

demonstrate that the BIA erred as a matter of law or otherwise abused its discretion

by finding her ineligible to file a successive asylum application. The BIA

determined that Li was statutorily barred from obtaining asylum, because she

3
previously filed a frivolous application, and there is nothing in the present record

to show that this conclusion was legally incorrect.

II.

Normally, “[w]e review the BIA’s denial of a motion to reopen for an abuse

of discretion.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).

When the BIA has not addressed an issue of fact raised by a petitioner or has

misstated the record, however, “‘the proper course . . ., is to remand to the agency

for additional investigation or explanation.’” See Calle v. U.S. Att’y Gen., 504

F.3d 1324, 1329 (11th Cir. 2007) (quoting INS v. Ventura, 537 U.S. 12, 16, 123 S.

Ct. 353, 355, 154 L. Ed. 2d 272 (2002)).

Motions to reopen may be granted if there is new evidence that is material

and was not available and could not have been discovered or presented at the

removal hearing. See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3). The movant has

the “heavy burden” of presenting evidence which would likely change the result in

the case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006).

Ordinarily, 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.” 8 C.F.R. § 1003.2(c)(2); INA § 240(c)(7)(C)(i), 8 U.S.C.

§ 1229a(c)(7)(C)(i). The 90-day filing deadline does not apply, however, to an

alien who files a motion to reopen predicated upon “changed circumstances arising
4
in the country of nationality . . ., if such evidence is material and was not available

and could not have been discovered or presented at the previous hearing.” 8 C.F.R.

§ 1003.2(c)(3)(ii); INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii).

A. The One-Child Family Planning Policy

Forced abortions and sterilizations are considered persecution on account of

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

forced to undergo such a procedure . . . shall be deemed to have a well founded

fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).

We have held that previously unavailable evidence alleging a recent

campaign of forced sterilization in the petitioner’s home province was sufficient to

satisfy the changed circumstances requirement in an untimely motion to reopen,

where the evidence was consistent with the conclusion in the U.S. Department of

State China Country Report on Human Rights Practices that forced abortions and

sterilization continued in certain parts of China. Li v. U.S. Att’y Gen., 488 F.3d

1371, 1375 (11th Cir. 2007).

Here, the BIA found that “none” of Li's family planning evidence post-dated

the closing of the record below, but this is refuted by the record. Li actually

submitted the following previously unavailable evidence: (1) her own affidavit

stating that she would be subject to a fine and forced sterilization upon returning to

China with two children in violation of the family planning policy; (2) a statement
5
by Amnesty International to the House of Representatives, issued in December

2004 following Li’s asylum hearing but before the BIA dismissed her appeal,

indicating that human rights conditions have continued to deteriorate as a result of

China's family planning policy; (3) a January 2007 article about China's plans to

continue to enforce its family planning policy; and (4) the 2005 and 2006 Country

Reports.

The BIA’s failure to acknowledge or address Li’s previously unavailable

evidence precludes us from properly reviewing the determination that she failed to

demonstrate changed country conditions. Accordingly, we grant Li’s petition on

this ground, vacate the order denying her motion to reopen based on China’s

family planning policy, and remand the case to the BIA for additional investigation

or explanation, and further proceedings consistent with this opinion.

B. The Treatment of Political Dissidents

In order for an alien to show that evidence of changed country conditions is

material, she must present evidence that satisfies the BIA that, if proceedings were

reopened, the new evidence would likely change the result in the case. Ali, 443

F.3d at 813.

We conclude from the record that the BIA did not abuse its discretion by

denying Li’s motion to reopen based on increased pressure on political dissidents

6
in China, because Li failed to demonstrate that these changes were material to her

own activism, which had occurred in the United States.

III.

Procedurally, we “lack jurisdiction to consider a claim raised in a petition for

review unless the petitioner has exhausted [her] administrative remedies with

respect thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th

Cir. 2006).

Here, we have jurisdiction to review Li’s CAT-related claim because she

properly exhausted her administrative remedies by presenting it to the BIA in her

motion to reopen. Nevertheless, Li’s claim is substantively without merit because

the BIA explicitly analyzed whether she had established a basis for reopening

removal proceedings under both the Immigration and Nationality Act (“INA”) and

CAT.

PETITION GRANTED IN PART AND DENIED IN PART, AND

REMANDED FOR FURTHER PROCEEDINGS.