NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3066
___________
YAN YUN YE,
a/k/a Zhang Jian Fen,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A075-809-257)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 8, 2012
Before: FUENTES, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: March 14, 2012)
___________
OPINION
___________
PER CURIAM
Yan Yun Ye, a citizen of the People’s Republic of China, petitions for review of
the Board of Immigration Appeals’ order denying her motion to remand and dismissing
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her appeal of the Immigration Judge’s order denying her motion to reopen. We will deny
the petition for review.
Ye attempted to enter the United States on April 12, 1998, and was placed in
removal proceedings. On June 3, 1998, she applied for asylum and appeared before an
Immigration Judge (IJ), and on March 31, 1999, the IJ ordered Ye removed to China in
absentia when she failed to appear at a scheduled hearing. Ye did not seek review,
ignored the order of removal, remained in the country, married, and had two children
with her husband, who is also a Chinese national.
Nearly eight years later, on March 15, 2007, Ye filed a motion to reopen her
proceedings before the IJ. Under the applicable regulations, a motion to reopen “must be
filed within 90 days of the date of entry of a final administrative order.” 8 C.F.R.
§ 1003.23(b)(1). An exception exists, however, for motions to reopen “based on changed
country conditions arising 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
proceeding.” Id. § 1003.23(b)(4); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). Ye argued that
her motion to reopen was not time-barred because conditions had changed in the Fujian
Province of China, the place to which she would be deported. Ye claimed that, if
removed, she was likely to be sterilized or receive an onerous fine because she had
violated China’s family-planning rules by having two children.
The IJ denied this motion, and the Board of Immigration Appeals (BIA) dismissed
Ye’s appeal. Ye then timely filed a petition for review. We granted the petition, vacated
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the BIA’s order, and remanded the case to the BIA, holding that the BIA had neglected to
show that it had considered Ye’s evidence, and had thus failed to meet the standards we
articulated in Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2008). See Ye v. Att’y
Gen., 383 F. App’x 113, 118 (3d Cir. 2010).
On remand, Ye filed a motion to remand the case to the IJ and submitted
additional evidence that she contended established changed country conditions. The BIA
dismissed Ye’s appeal and denied her motion to remand, holding that Ye had failed to
present material evidence establishing changed country conditions. 1 Ye again filed a
petition for review. She also filed a motion to stay her removal pending our review,
which we granted.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), and review the agency’s denial
of Ye’s motions — both of which, for purposes of this opinion, will be treated as motions
to reopen, see Huang v. Att’y Gen., 620 F.3d 372, 389 (3d Cir. 2010) (explaining that the
“BIA treats a motion to remand for the purpose of submitting additional evidence in the
same manner as motions to reopen the record”) — for abuse of discretion. See Borges v.
Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Motions to reopen are “plainly
disfavor[ed],” because “[t]here is a strong public interest in bringing litigation to a close
as promptly as is consistent with the interest in giving the adversaries a fair opportunity
to develop and present their respective cases.” INS v. Abudu, 485 U.S. 94, 107, 110
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In its initial decision, the BIA also held that Ye was ineligible to reopen proceedings
pursuant to the fugitive-disentitlement doctrine, but did not rely on that ground in its
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(1988). The BIA’s decision is thus entitled to “broad deference,” Ezeagwuna v.
Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003) (internal quotation marks omitted), and it
“will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law,”
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (internal quotation marks omitted).
When we previously remanded Ye’s petition for BIA review, we did not suggest
that the BIA had reached the wrong result; rather, we faulted the BIA for “rely[ing] on its
prior decisions without satisfying itself that Ye’s evidence was in fact the same as, or
substantially similar to, the evidence rejected in [previous] cases.” Ye, 383 F. App’x at
118. On remand, the BIA listed and painstakingly considered each piece of evidence of
changed country conditions that Ye had submitted. Thus, the BIA unquestionably
complied with our requirement that it “explicitly consider [the] country conditions
evidence submitted by [Ye].” Zheng, 549 F.3d at 268 (quotation omitted).
Moreover, we discern no error in the BIA’s evaluation of Ye’s evidence. The BIA
concluded that the bulk of Ye’s evidence — such as a Consular Information Sheet,
several State Department Country Reports, and a report from the Congressional-
Executive Commission on China — although suggesting that there had been episodic
incidents of forced sterilization in China, failed to establish that there had been a change
in country conditions since the time of Ye’s initial hearing. To invoke the exception to
the 90-day time limit to file a motion to reopen, it was incumbent upon Ye to show
decision that is now before this Court.
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changed country conditions, and we agree with the BIA that these documents do not help
her cause.
The BIA further concluded that much of Ye’s evidence was not material to her
case because it concerned individuals who had not given birth overseas and then returned
to China or who lived in different parts of China. The BIA’s analysis of this evidence
was entirely reasonable. See generally Chen v. Att’y Gen., -- F.3d ---, 2011 WL 923353,
at *4 (3d Cir. Mar. 18, 2011) (ruling that substantial evidence supported IJ’s conclusion
that petitioners’ American-born children would not be considered Chinese citizens and
thus not be counted for purposes of the family-planning rules); Yuan v. Att’y Gen., 642
F.3d 420, 426 (3d Cir. 2011) (holding that substantial evidence supported BIA’s
determination that evidence unrelated to birth-control policies in petitioner’s native
province was inapposite).
The BIA further noted that many of Ye’s documents were incomplete or
unauthenticated. It was reasonable for the BIA to discount these documents on this basis.
See Chen, 2011 WL 923353, at *4. Finally, it was not an abuse of discretion for the BIA
to essentially dismiss Ye’s affidavit as unreliable because it was based solely on second-
hand knowledge that was not otherwise supported by the record. See Gramatikov v. INS,
128 F.3d 619, 620 (7th Cir. 1997).
Our recent decision in Chen, although arising in a different procedural posture,
lends further support to the BIA’s decision. In Chen, the petitioners, a married couple
from the Fujian Province, sought relief because they had two U.S.-born children, and
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they claimed to fear forced sterilization and economic penalties should they return to
China. 2011 WL 923353, at *2. In affirming the BIA’s decision and rejecting the
petitioners’ claims, we determined that In re H-L-H-, 25 I. & N. Dec. 209 (BIA 2010),
was “persuasive[],” Chen, 2011 WL 923353, at *2, in its conclusion that “‘physical
coercion to achieve compliance with family planning goals is uncommon and
unsanctioned by China’s national laws and that the overall policy is much more heavily
reliant on incentives and economic penalties,’” and that those economic penalties were
not sufficiently severe to constitute persecution, id. at *3 (quoting In re H-L-H-, 25 I. &
N. Dec. at 218.). That description of the family-planning policies currently in effect is
entirely consistent with the description of the policies in the 1999 State Department
Report, and accordingly, it was reasonable for the BIA to conclude that Ye had failed to
show that the conditions in China have materially changed since her initial 1999 hearing.
In view of the record as a whole, we cannot say that BIA’s review of Ye’s
evidence of changed country conditions was arbitrary, irrational, or contrary to law.
Accordingly, we will deny Ye’s petition for review. Further, the stay of removal we
previously granted is vacated.
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