Man Pan v. Loretta E. Lynch
668 F. App'x 281
| 9th Cir. | 2016Background
- Petitioner Man Li Pan, a Chinese national and mother of two U.S.-born children, sought reopening of removal proceedings based on changed country conditions related to China’s family planning policies.
- Pan’s motion to reopen was untimely; she relied on the exception for changed country conditions to overcome the 90-day filing rule for motions to reopen.
- Pan asserted two changed conditions: (1) Chinese citizens with foreign-born children face the same penalties (including forced sterilization) as parents of China-born children, and (2) local governments implemented new enforcement measures for the family planning policy.
- Evidence submitted included witness statements (largely from Fujian Province), letters concerning Zhejiang Province, and congressional and State Department reports describing enforcement practices.
- The BIA denied the untimely motion, finding Pan failed to show objectively changed country conditions in her locally-defined area (Zhejiang) or qualitatively different evidence than presented in her 2000 asylum application.
- The Ninth Circuit reviewed the BIA’s denial for abuse of discretion and denied Pan’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pan’s untimely motion to reopen qualifies under the changed-country-conditions exception | Pan: China’s family planning enforcement has changed—foreign-born children now trigger sterilizations and local governments adopted new enforcement measures | BIA: Pan’s evidence does not show changed conditions in her home province or qualitatively new evidence | Denied: Pan failed to show changed conditions in Zhejiang or materially different evidence than in 2000; BIA decision upheld |
| Whether evidence from another province (Fujian) establishes changed conditions in petitioner’s province (Zhejiang) | Pan: Witness statements from Fujian indicate broader national/local enforcement trends applicable to her | BIA: Province-specific precedent requires evidence from petitioner’s locally-defined area; Fujian evidence is insufficient | Denied: Statements from Fujian do not establish enforcement in Zhejiang |
| Whether submitted documentary reports describe new enforcement methods distinct from prior evidence | Pan: Congressional and State Department reports document new enforcement measures since 2000 | BIA: Reports describe measures similar to those in the 2000 application; not qualitatively different | Denied: Reports are not materially or qualitatively different from prior evidence |
| Whether the BIA abused its discretion in denying the motion to reopen | Pan: Denial was arbitrary given new evidence of enforcement against parents of foreign-born children | BIA/Panel: Decision was supported by lack of province-specific proof and lack of qualitatively new evidence | Denied: Court finds no abuse of discretion; BIA’s decision was not arbitrary or contrary to law |
Key Cases Cited
- Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008) (standard of review: BIA denial of motion to reopen reviewed for abuse of discretion)
- Feng Gui Lin v. Holder, 588 F.3d 981 (9th Cir. 2009) (no time limit for motions to reopen based on changed country conditions for asylum claims)
- Yan Rong Zhao v. Holder, 728 F.3d 1144 (9th Cir. 2013) (BIA looks to conditions in petitioner’s local province or municipality for China family-planning claims)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (evidence of changed circumstances must be qualitatively different from prior evidence)
- Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004) (standard describing when new evidence is qualitatively different)