446 F. App'x 501
3d Cir.2011Background
- Li, a PRC citizen, entered the United States in 1998 and was ordered removed in 2002 after denial of asylum, withholding of removal, and CAT relief.
- Her first motion to reopen (2005) was based on the birth of her second child and was denied; this court later affirmed in Li v. Att’y Gen., 321 F. App’x 143 (3d Cir. 2009).
- Li filed second and third motions to reopen asserting changed China population-control enforcement; the Board denied, and Li sought review; this court remanded for more thorough analysis in 2010.
- On remand, Li submitted hundreds of pages of additional documents; the Board did not invite further submissions and declined to consider the post-remand materials due to evidentiary issues and lack of relevance.
- The Board again concluded no change in country conditions supporting a reopening; it found many submitted documents defective (translation, provenance, or relevance) and deemed some evidence facially suspect.
- Li’s petition for review was denied; this court reviews the BIA’s denial of a motion to reopen for abuse of discretion; jurisdiction issues are addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by declining to consider post-remand evidence. | Li asserts the BIA failed to address post-remand evidence on remand. | BIA adequately considered and declined to rely on the post-remand evidence due to procedural and evidentiary flaws. | No abuse of discretion; BIA properly declined to consider the post-remand materials. |
| Whether remand required the Board to accept new submissions after the remand. | Li contends the remand forced new evidentiary submissions. | Remand did not compel new submissions; Li did not request supplementation or explain relevance. | Remand did not require new submissions; absence of argument or permission justified non-consideration. |
| Whether Li demonstrated changed country conditions sufficient to reopen. | Li relies on evidence showing changed enforcement of China’s family planning policies. | The BIA found the evidence insufficient and not material to a change in country conditions. | No change in country conditions established; motions to reopen properly denied. |
| Whether the court has jurisdiction to consider post-remand evidence for reopening. | Li seeks reopening based on post-remand evidence. | INA limits jurisdiction over post-remand reopening arguments. | Court lacks jurisdiction to consider post-remand evidence for reopening; petition denied on other grounds. |
Key Cases Cited
- Filja v. Gonzales, 447 F.3d 241 (3d Cir. 2006) (abuse of discretion standard for motion to reopen)
- Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002) (abuse-of-discretion review and related standards)
- Lin v. Att’y Gen., 543 F.3d 114 (3d Cir. 2008) (jurisdictional limitations in post-remand claims)
- Garcia v. Holder, 621 F.3d 906 (9th Cir. 2010) (BIA discretion to consider supplemental material in reopening context)
- Liu v. Att’y Gen., 555 F.3d 145 (3d Cir. 2009) (BIA’s determination of evidentiary sufficiency on changed country conditions)