HANG CHEN v. Holder
2012 U.S. App. LEXIS 6478
| 1st Cir. | 2012Background
- Chen entered the United States without inspection in 1996 and was charged with removability under INA § 212(a)(6)(A)(i).
- In 1997, an IJ denied asylum and granted voluntary departure; Chen appealed but counsel withdrew the appeal, leading the BIA to deem the appeal withdrawn and to dismiss the government’s challenge to voluntary departure.
- Chen remained in the United States, formed a family, and had three children born between 2004 and 2009; he later learned his counsel had misrepresented his appeal status.
- In 2010 Chen moved to reopen on grounds of ineffective assistance and, alternatively, discretionary sua sponte reopening; the BIA denied as untimely and for lack of equitable tolling or sua sponte basis.
- Chen filed a second motion to reopen in December 2010, asserting changed country conditions and challenging the 2007 Department of State Country Profile on China and Dr. Sapio’s critique; the BIA denied, finding no material change and not persuaded by Sapio.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA properly applied the changed conditions exception | Chen: evidence shows changed country conditions warrant reopening | BIA: evidence not new or unavailable and not sufficient to show change | No abuse; BIA properly denied reopening based on lack of material change |
| Whether the 2007 Country Profile and Sapio's report were improperly weighed | Chen: Sapio undermines Profile; BIA gave undue weight to Profile | BIA: Profile credible; Sapio unpersuasive; no material error | No error; BIA reasonably weighed Profile against Sapio |
| Whether authentication and novelty requirements for new evidence were satisfied | Chen: documents were new and authenticated or authenticate-able, showing change | BIA: most documents unauthenticated or not new/unavailable; some already addressed by precedent | No; evidentiary requirements not met for reopening |
Key Cases Cited
- Guerrero-Santana v. Gonzales, 499 F.3d 90 (1st Cir. 2007) (motions to reopen disrupt finality interest; review discretion)
- Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007) (finality and expeditious processing concerns in reopening)
- Matos-Santana v. Holder, 660 F.3d 91 (1st Cir. 2011) (abuse of discretion standard; review of BIA factual findings)
- Le Bin Zhu v. Holder, 622 F.3d 87 (1st Cir. 2010) (changed conditions exception; untimely or subsequent motion to reopen)
- Xue Yan Lin v. Holder, 325 Fed.Appx. 179 (4th Cir. 2009) (consideration of previously addressed evidence; standards for reopening)