                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-2006

Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4820




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-4820
                                   ________________

                         XUE HUA CHEN; QIAO XIA YANG,
                                              Petitioners,

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                           On Review of a Decision of the
                            Board of Immigration Appeals
                      (Agency Nos. A97 512 265 & A97 512 266)
                     Immigration Judge: Honorable Grace A. Sease
                    _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 26, 2006

          Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                                (Filed: July 26, 2006 )
                              _______________________

                                     OPINION
                              _______________________


PER CURIAM

      Xue Hua Chen and her daughter Qiao Xia Yang, citizens of China, seek review of

an order of the Board of Immigration Appeals (“BIA”), denying their motion to reopen

proceedings. For the reasons that follow, we will deny the petition.
       Chen and Yang entered the United States without valid documents in January

2004. After being placed in removal proceedings, Chen applied for asylum for having

been forcibly sterilized under China’s population control policy.1 She also applied for

withholding of removal and relief under the Convention Against Torture. The

Immigration Judge (IJ) disbelieved much of Chen’s testimony regarding forced

sterilization, found her evidence insufficient to support her claims, denied relief, and

ordered her and her daughter removed to China. The BIA agreed with the IJ’s

conclusions and dismissed the appeal on September 8, 2004.

       On December 7, 2004, the petitioners filed a timely motion to reopen proceedings

with the BIA. Initially, the BIA noted that some of the petitioners’ arguments alleged

error in its prior decision, and stated that to the extent the petitioners sought

reconsideration, their motion was untimely.2 The BIA then considered whether the

petitioners had presented new evidence warranting reopening proceedings, found none,

and denied the motion on September 29, 2005. The petitioners filed a timely petition for

review of the BIA’s decision to deny reopening.




   1
       Yang was a derivative beneficiary of her mother’s applications for relief.
   2
       A motion to reconsider must be filed within thirty days of the BIA’s prior order.
See 8 C.F.R. § 1003.2(b)(2). Here, the petitioners’ motion was filed in December 2004,
three months after the BIA’s prior order in September 2004. Contrary to the petitioners’
argument, the BIA committed no legal error in considering whether their motion might be
treated as both a motion to reopen and to reconsider.

                                               2
         We review the BIA’s denial of a motion to reopen for abuse of discretion with

“broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.

2003); see INS v. Doherty, 502 U.S. 314, 323 (1992) (noting the broad deference due the

BIA’s decision). Under this standard, we will reverse the BIA’s decision only if it is

“arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.

2002). The BIA may lawfully deny a motion to reopen if (1) the alien has not established

a prima facie case for asylum; (2) the alien has not introduced previously unavailable,

material evidence; or (3) in the case of asylum, the alien would not be entitled to relief

even if the motion was granted. Caushi v. Attorney General, 436 F.3d 220, 231 (3d Cir.

2006).

         Here, the BIA concluded that the petitioners presented no previously unavailable

evidence. After reviewing the record, we cannot find any abuse of discretion in this

regard. Notably, the petitioners arrived in January 2004. Apparently Chen made no

effort to obtain medical evidence to support her claim of forced sterilization until October

2004, after the BIA dismissed her appeal. According to the doctor who examined her on

November 4, 2004, a “simple and inexpensive” procedure known as a

hysterosalpingogram would have supported her claim. (A.R. at 22.) This evidence,

which Chen still has not obtained, does not constitute evidence that “was not available

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

§ 1003.2(c)(1); see Caushi, 436 F.3d at 232.



                                               3
      In sum, we find no basis to conclude that the BIA abused its discretion in denying

the petitioners’ motion to reopen. Accordingly, we will deny their petition for review.




                                            4
