[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 19, 2005
Nos. 04-15858 & 05-11789
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-781-156
CHAO JIN CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE,
Michael Chertoff,
SECRETARY OF THE DEPARTMENT
OF HOMELAND,
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 19, 2005)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Chao Jin Chen petitions for review of the BIA’s orders denying his motions
to reconsider and to reopen the BIA’s denial of his applications for relief from
removal. Because Chen’s removal proceedings commenced after April 1, 1997,
this case is governed by the permanent provisions of the Immigration and
Nationality Act (“INA”), as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”). Gonzalez-Oropeza v. U. S.
Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Although Chen filed separate
petitions, we now consolidate the petitions because they involve the same
underlying applications for relief from removal.
I. Background
On January 18, 2002, the Immigration and Naturalization Service (“INS”)1
issued Chen a Notice to Appear. The Notice to Appear charged that Chen, a
citizen and native of China, was present in the United States without being
admitted or paroled, and was removable under INA § 212(a)(6)(A)(i); 8 U.S.C.
§ 1182(a)(6)(A)(i).
1
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107–296, 116 Stat. 2125. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new department.
Because this case commended while the INS was in existence, this memorandum refers to the INS
rather than the DHS.
2
Chen filed an application for relief from removal seeking asylum and
withholding of removal. According to Chen, he and his family had been
persecuted based on his parents’ religious practice of Falun Gong and Chen feared
arrest and torture should he return to China. In support of his claims, Chen
submitted information on Falun Gong followers and the State Department’s 2001
Report on China, which detailed treatment of Falun Gong practitioners and the
government’s imprisonment and torture of its followers.
Following a hearing, the Immigration Judge (“IJ”) found Chen removable
and not entitled to relief under asylum, voluntary departure, withholding of
removal, or the Convention Against Torture.2 The IJ determined that, although
Chen’s family’s religious beliefs were illegal in China, there was no evidence of
past persecution or that he faced torture and arrest if returned. The IJ found Chen’s
testimony to lack credibility, and he questioned the veracity of the Chinese
documents Chen submitted in support of his claims. The IJ further found that
Chen was not a “refugee” for purposes of the asylum statutes, and that relief under
the Convention Against Torture was not warranted. The opinion issued March 27,
2003.
2
8 C.F.R. § 208.16(c).
3
Chen filed an appeal from the IJ’s decision, asserting that he was entitled to
asylum. On April 8, 2004, the BIA dismissed the appeal, concluding that Chen had
failed to meet his burden of showing past persecution, or that he likely would face
persecution and torture if returned to China. In August 2004, Chen moved the BIA
to reconsider its dismissal. The BIA denied the motion to reconsider as untimely.
On December 3, 2004, Chen moved to reopen his appeal from the denial of
asylum relief. In support of his motion, he submitted materials to corroborate his
claim that he feared persecution if returned to China. The attachments included
undated articles advising of the Falun Gong philosophy and the treatment and
torture its followers received in China. Also attached was a copy of a New York
Times article dated September 23, 2004, explaining anti-China protests in New
York in connection with Falun Gong. Finally, Chen submitted the 2003 Report on
Human Rights from the State Department.
The BIA denied the motion to reopen, finding it untimely. The BIA
indicated that the IJ’s decision dated April 8, 2004, was a final order, and,
therefore, the motion to reopen had to be filed within ninety days of that date. The
BIA further found that Chen had not submitted sufficient evidence of changed
conditions in China to justify an extension of that ninety-day period. Finally, the
BIA determined that the motion failed even if it was timely because the evidence
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submitted was not specific to Chen and did not materially enhance his claim. Chen
filed petitions for review of the BIA’s orders denying his motions for
reconsideration and to reopen his application.
II. Review 3
We review the BIA’s denials of a motion for reconsideration and a motion to
reopen for abuse of discretion. Abdi v. U.S. Att’y Gen., No. 04-16447, slip op. at
449 (11th Cir. Nov. 15, 2005); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.2
(11th Cir. 2005); Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir.
2003), cert. denied, 125 S.Ct. 138 (2004). Motions to reconsider are disfavored in
removal proceedings. I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116
L.Ed.2d 823 (1992) (discussing motions to reopen and explaining that such
motions are disfavored because “as a general matter, every delay works to the
advantage of the deportable alien who wishes merely to remain in the United
States”).
A. Motion for Reconsideration
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In an order dated December 2, 2004, this court sua sponte dismissed Chen’s petition for
review of the BIA’s April 2004 order for lack of jurisdiction because the petition for review was
untimely as to that order. See also Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir.
2005). Thus, the only issues before us on appeal are the denial of the motions for reconsideration
and to reopen.
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On appeal, Chen argues that the BIA abused its discretion because it did not
consider the complete record in concluding that he was not entitled to relief, but
based its decision solely on the fact that the motion was untimely. Although he
acknowledges that his motion was untimely and that motions to reconsider are
disfavored, he asserts that the BIA should have sua sponte considered his claims
because of the torture he faced if he was returned to China.
Under 8 C.F.R. § 1003.2, a motion to reconsider a BIA decision must be
filed within thirty days of the decision, and must “state the reasons for the motion
by specifying the errors of fact or law in the prior Board decision . . . supported by
pertinent authority.” 8 C.F.R. § 1003.2(b)(1), (2). Additionally, “[t]he Board may
at any time reopen or reconsider on its own motion any case in which it has
rendered a decision.” 8 C.F.R. § 1003.2(a). However, the BIA “has discretion to
deny a motion to reopen even if the party moving has made out a prima facie case
for relief.” 8 C.F.R. § 1003.2(a).
Here, the BIA did not abuse its discretion by denying the motion for
reconsideration. Chen filed his motion to reconsider in August 2004, more than
thirty days after the BIA issued the order denying relief. “Statutes of limitations
are not simply technicalities. On the contrary, they have long been respected as
fundamental to a well-ordered judicial system.” Mejia Rodriguez v. Reno, 178
6
F.3d 1139, 1145 (11th Cir. 1999) (citation omitted). As Chen admits that his
motion was untimely, the BIA did not abuse its discretion by denying the motion to
reconsider.
Chen nevertheless contends that the BIA should have exercised its discretion
under § 1003.2(a) to reconsider his claims because his claims were meritorious.
Under the regulations, however, the BIA has broad discretion to reconsider claims
on its own motion and the BIA’s exercise of this discretion is not subject to judicial
review. See Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999); see also 8 C.F.R.
§ 1003.2(a). As this court has noted, this discretion “is so wide that ‘even if the
party moving has made out a prima facie case for relief,’ the BIA can deny a
motion to reopen a deportation order.” Anin, 188 F.3d at 1279.
B. Motion to Reopen
Chen also argues that the BIA abused its discretion by denying the motion to
reopen because he submitted evidence that was material and unavailable earlier in
the proceedings, and that these changed circumstances warranted review. He also
suggests that the ninety-day period in which he could have filed the motion should
begin to run on the date the BIA issued its final order - i.e., the denial of the motion
for reconsideration - rather than the date of the IJ’s decision. He further contends
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that the BIA had the authority to reopen his case, and this court may review the
BIA’s sua sponte decision not to reopen if exceptional circumstances exist.
The regulations provide that a motion to reopen “shall not be granted unless
it appears to the Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1). The motion must be filed within ninety days after the
date on which the final administrative decision was rendered in the proceeding
sought to be reopened. Id. § 1003.2(c)(2). This limitations period does not apply
if there are changed circumstances in the country to which the alien will be
deported if “such evidence is material and was not available and could not have
been discovered or presented at the previous hearing.” Id. § 1003.2(c)(3)(ii).
As an initial matter, the IJ’s decision was the final order triggering the
limitations period once the BIA dismissed Chen’s appeal 8 C.F.R. § 1241.1(a).
Chen’s motion for reconsideration did not toll the limitations period or change the
date upon which there was a final order. Stone v. INS, 514 U.S. 386, 393-94, 115
S.Ct. 1537, 1543-46, 131 L.Ed.2d 465(1995). Therefore, Chen’s motion to reopen,
filed more than ninety days after the IJ’s decision, was untimely.
Additionally, Chen has not shown exceptional circumstances based on
changed conditions that would warrant reopening. Notably, the IJ had the 2001
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State Department Report as evidence at the time it rendered its decision. Thus, the
2003 Report Chen submitted with his motion to reopen was not exactly new
evidence. Moreover, the report issued in February 2004, but Chen did not file his
motion until December of that year. Thus, the information was available before
the BIA affirmed the IJ’s decision and before Chen filed his motion for
reconsideration. Nevertheless, Chen did not raise the issue of changed
circumstances until his motion to reopen in December. Additionally, as Chen was
not a Falun Gong follower, the information was not specific to him. Accordingly,
Chen has not established changed circumstances that would excuse his untimely
motion to reopen.
III. Conclusion
Because this court should not address the BIA’s decision not to exercise its
discretionary authority, and the BIA did not abuse its discretion by denying Chen’s
untimely motions to reconsider or to reopen, we DENY the petitions for review.
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