Feng Ying Li v. Attorney General United States
695 F. App'x 32
| 3rd Cir. | 2017Background
- Li, a Chinese national, entered the U.S. in 1998 without documents and applied for asylum, withholding of removal, and CAT relief claiming officials intended to sterilize her; the IJ found her not credible in 1999 and the BIA affirmed in 2002.
- Li remained in the U.S., had additional children, and filed five prior motions to reopen removal; all were denied.
- In April 2016 Li filed a sixth motion to reopen claiming changed country conditions: she converted to Christianity in 2012 and contended conditions for Christians and for violators of China’s family‑planning policies had worsened since 1999.
- The BIA denied the sixth motion as time‑ and number‑barred and for failure to show material, changed country conditions; it took administrative notice of a 2015 State Department report but did not rely on it dispositively.
- Li challenged the BIA’s consideration of evidence (including failure to highlight relevant passages), asserted a due process violation from administrative notice, and argued worsening enforcement of family‑planning policies in Fujian province.
- The Third Circuit denied Li’s petition for review, holding the BIA did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Li showed material changed country conditions (religious persecution) sufficient to overcome time/number bars | Li: Conditions for Christians in China worsened since 1999 after her conversion, supporting reopening | Govt/BIA: Li failed to identify specific, temporally relevant evidence; most exhibits do not compare 1999 to 2015–16 and she didn’t highlight pertinent passages | Held: BIA did not abuse discretion; Li failed to show changed country conditions for Christians |
| Whether BIA’s administrative notice of a 2015 State Department report violated due process | Li: BIA took notice of the report without giving opportunity to challenge, depriving her of due process | Govt/BIA: BIA used the report only to confirm points in Li’s own exhibits and did not rely on it dispositively | Held: No due process violation because notice was not dispositive and confirmed other material the BIA considered |
| Whether family‑planning enforcement worsened since 1999 such that reopening was warranted | Li: Enforcement (forced sterilizations/abortions) became more coercive in Fujian, showing deterioration since 1999 | Govt/BIA: Submitted materials (including a 2015 congressional report) showed easing of one‑child restrictions in 2013–15; documents noting coercive practices show continuation, not worsening | Held: BIA’s finding supported by substantial evidence; Li did not show worsening conditions since 1999 |
| Whether court should remand under Second Circuit remand procedure or recommend prosecutorial discretion | Li: Requested remand under Second Circuit procedure and asked court to recommend prosecutorial discretion | Govt: Does not consent to special remand; prosecutorial discretion is exercised by the prosecutor, not the court | Held: Denied remand request (government nonconsent); court declines to recommend prosecutorial discretion |
Key Cases Cited
- Pllumi v. Attorney Gen., 642 F.3d 155 (3d Cir. 2011) (discusses BIA practice for voluminous exhibits and highlighting pertinent material)
- Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001) (substantial‑evidence standard for review of BIA factual findings)
- Khan v. Attorney Gen., 691 F.3d 488 (3d Cir. 2012) (personal changes made by aliens do not alone establish changed country conditions)
- Filja v. Gonzales, 447 F.3d 241 (3d Cir. 2006) (BIA must announce decisions sufficiently to show it considered arguments)
- Chhetry v. United States Dep’t of Justice, 490 F.3d 196 (2d Cir. 2007) (BIA must allow opportunity to challenge administratively noticed facts when reliance is dispositive)