[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10440 ELEVENTH CIRCUIT
OCTOBER 13, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A077-957-486
QING YING CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 13, 2009)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Qing Ying Chen, a citizen of China, petitions for review of a Board of
Immigration Appeals’s (“BIA”) decision, denying her third motion to reopen her
asylum proceedings. Chen’s motion to reopen was based on her assertion that
country conditions in China have changed because China has begun strongly
enforcing its child control policy. Because Chen has two children, she argued that
she would be subject to this stronger enforcement of the child control policy if she
returned to China.
On petition for review, Chen argues that the BIA failed to give sufficient
weight to the documents that she submitted in support of her motion to reopen.
Chen concludes that she met her burden of proof, and the BIA should have granted
her motion to reopen.
The BIA’s denial of a motion to reopen is reviewed for an abuse of
discretion. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).
Review “is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Id. (quotation marks and citation omitted). If the BIA fails to
explicitly make an adverse credibility finding, then the petitioner’s evidence must
be deemed credible on appeal. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201
(11th Cir. 2005).
A party may file only one motion to reopen removal proceedings, and that
motion “shall state the new facts that will be proven at a hearing to be held if the
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motion is granted, and shall be supported by affidavits or other evidentiary
material.” 8 U.S.C. §§ 1229a(c)(7)(A), (B). A motion to reopen must be filed no
later than ninety days after the final administrative decision. See 8 C.F.R.
§ 1003.2(c)(2). There is an exception to the ninety-day and one-motion limits,
which provides that the limits shall not apply if the motion to reopen is “based on
changed circumstances arising in the country of nationality or in the country to
which deportation has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii). To meet this exception, a movant must show “that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing.” Abdi, 430 F.3d at 1149 (quoting 8
C.F.R. § 1003.2(c)(1)).
We recently addressed, in Li v. U.S. Att'y Gen., 488 F.3d 1371 (11th Cir.
2007), the issue of whether to reopen a case in which a Chinese citizen feared
sterilization upon being returned to China. In Li, the petitioner, a native of
Lianjiang, Fujian Province, China, and the mother of two American-born children,
provided, as a part of a motion to reopen, previously unavailable evidence that
Fujian officials had intensified their persecution of parents of two children. Id.
at 1373. In support of her motion, the petitioner submitted: (1) her own affidavit
reporting second-hand accounts of forced sterilization and abortion in Lianjiang in
2005; (2) her mother’s affidavit reporting increased family planning enforcement
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in Lianjing and the forcible sterilization of three women after
each gave birth to a second child; (3) country reports and other State Department
documents; (4) Congressional-Executive Commission evidence and congressional
testimony; and (5) newspaper articles discussing forced abortions in Shandong
Province. Id. at 1372-73. We determined that the petitioner’s evidence of a recent
campaign of forced sterilization in her home village, consistent with government
reports, satisfied the criteria for a motion to reopen. Id. at 1375.
In Zhang v. U.S. Att’y. Gen., case no. 08-15245, man. op. (11th Cir.
June 30, 2009), we again considered the issue of whether to reopen a case based on
changed country conditions when a Chinese citizen with multiple children feared
returning to China. In Zhang, the petitioner submitted: (1) her own affidavit
stating that she had two kids and that her mother was forcibly sterilized in China;
(2) a document issued by her city’s government stating that citizens with two
children were subject to mandatory sterilization; and (3) a number of background
documents about China’s birth control policies. Id. at 3-4. The BIA denied the
petitioner’s claims by concluding that her statement about her mother’s situation
was unsubstantiated, and the document from her city’s government was
unauthenticated. Id. at 5-6. On appeal, we reversed, finding that the BIA failed to
give proper consideration to the petitioner’s evidence by failing to explain why it
did not credit the documents in question in light of the other record evidence. Id.
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at 8-9.
In support of her motion to reopen, Chen submitted: (1) an affidavit stating
that she has two children and describing second-hand reports of China’s
strengthened enforcement of its child control policies; (2) a letter from her cousin,
who resides in Chen’s home village of Qunxing in Fujian Province, stating that in
2007 she was forcibly sterilized after having a second child; (3) a 2005 notice from
Chen’s village government stating that parents with two children will be sterilized;
and (4) various background information on China’s birth control policies and their
increased enforcement in recent years against two-child couples living in villages
in Fujian Province. This evidence is similar to the evidence that we considered in
Zhang and Li, and, as such, this evidence satisfies the criteria for a successful
motion to reopen based on changed country conditions. Accordingly, we grant
Chen’s petition and vacate and remand this case back to the BIA to reopen Chen’s
case and to carefully consider all of the evidence that Chen has provided.
PETITION GRANTED, VACATED AND REMANDED.
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