FILED
NOT FOR PUBLICATION
OCT 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LILI CHEN, AKA Xia Lin, No. 15-71443
Petitioner, Agency No. A096-396-031
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 13, 2016
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.
Petitioner Lili Chen (“Chen”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) order denying her untimely motion to reopen her
asylum case based on changed country conditions. We have jurisdiction over this
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
matter pursuant to 8 U.S.C. § 1252. We review the BIA’s denial of Chen’s motion
to reopen for abuse of discretion. Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014).
We grant the petition and remand for further proceedings.
“The BIA abuses its discretion when it fails to ‘consider and address in its
entirety the evidence submitted by a petitioner’ and to ‘issue a decision that fully
explains the reasons for denying a motion to reopen.’” Franco-Rosendo v.
Gonzales, 454 F.3d 965, 966 (9th Cir. 2006) (quoting Mohammed v. Gonzales, 400
F.3d 785, 792–93 (9th Cir. 2005)). While the BIA “need not expressly refute on
the record every single piece of evidence” presented, Feng Gui Lin v. Holder, 588
F.3d 981, 987 (9th Cir. 2009), the BIA errs when it wholly fails to exercise its
discretion to consider evidence, Garcia v. Holder, 621 F.3d 906, 913 (9th Cir.
2010).
The BIA concluded that Chen failed to demonstrate materially changed
country conditions, as well as prima facie eligibility for asylum. In doing so, the
BIA failed to demonstrate meaningful consideration of all of the evidence and
claims before it. For example, in determining that certain exhibits originating in
and pertaining solely to Chen’s home province of Fujian were irrelevant to her
prima facie eligibility for relief, the BIA overtly mischaracterized the documents,
stating that they were “from other areas of China.” Also in its discussion of
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whether Chen demonstrated prima facie asylum eligibility, the BIA concluded that
Chen’s “evidence [did] not indicate the likelihood of . . . persecution based on the
birth of her two children in the United States.” (emphasis added). The BIA did not
acknowledge that documents in the record indicate that birth of children in the
United States may lead to coercive family planning measures that amount to
persecution. As for the conclusion that “alleged incidents of coercion to meet birth
targets in some areas of China have been a longstanding concern, including [at] the
time of the respondent’s 2004 proceedings,” (emphasis added), the sources the BIA
cites include only one source from 2004 or earlier—a 2004 State Department
report. That report states that in China generally “there ha[d] been reports [of]
physical coercion . . . in some rural areas.” But the portion of the report specific to
Chen’s home province of Fujian conveys scant evidence of coercive family
planning in Fujian in 2004, calling into question the validity of the BIA’s
reasoning.
“Assuming that the [BIA] actually examined [Chen]’s documents, we are
left with nothing to indicate how the information contained within them affected its
analysis.” Ji Cheng Ni v. Holder, 715 F.3d 620, 629 (7th Cir. 2013). The
government’s post-hoc rationales for the BIA’s decision do not allow us to “affirm
the administrative action by substituting what [we] consider[] to be a more
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adequate or proper basis.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
PETITION FOR REVIEW GRANTED; REMANDED.
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