Ming Chen v. Holder
2013 U.S. App. LEXIS 13806
| 1st Cir. | 2013Background
- Ming Chen, a Chinese national, was ordered removed after an IJ denied asylum and the BIA affirmed in 2002; he did not seek further review and remained in the U.S. unlawfully.
- In 2011 Chen filed a motion to reopen (well after the 90-day regulatory deadline) with a successive asylum/withholding application asserting membership in the China Democracy Party (CDP) beginning in 2010.
- He submitted an affidavit/letter from his mother claiming Chinese officials questioned her about Chen and threatened imprisonment if he returned.
- Chen argued his motion was timely under the exception for material changed country conditions occurring after his last hearing. He emphasized a purported crackdown on the CDP beginning in November 1998 and broader increased repression of pro-democracy activists and Internet dissent.
- The BIA denied the motion as untimely: it treated Chen’s CDP membership as a change in his personal circumstances (not country conditions) and found Chen’s country-condition evidence insufficient to show a material change since 1998.
- The First Circuit reviewed for abuse of discretion and denied Chen’s petition, concluding the BIA’s factual findings were supported by substantial evidence and reopening was properly refused.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chen's untimely motion to reopen qualifies for the "changed country conditions" exception | Chen: conditions for CDP members and pro-democracy activists materially worsened after 1998 (including a 1998 CDP crackdown and more recent Internet repression) | Government/BIA: evidence shows longstanding repression; Chen’s CDP membership is a personal, self-induced change and the country conditions cited are not materially different from pre-1998 conditions | Motion to reopen denied; Chen’s CDP membership is a personal change and submitted country-condition materials do not show a material change since his last hearing |
| Admissibility/reliability of the mother’s letter | Chen: mother’s letter documents official questioning and threats, showing changed conditions as to him | BIA: letter lacks indicia of reliability (not notarized; interested party not subject to examination) | Court assumed truthfulness for purposes of argument but held even if true it evidences only personal targeting, not changed country conditions |
| Whether the founding/crackdown of the CDP in 1998 alone constitutes a material change in country conditions | Chen: CDP’s formation and subsequent crackdown are new, material developments since his 1998 hearing | BIA/Gov: CDP was nascent in 1998 and received treatment similar to prior pro-democracy advocacy; formation/crackdown is not a novel countrywide shift | Founding/crackdown of CDP did not show a material change in country conditions |
| Whether broader Internet repression demonstrates material change | Chen: recent efforts to silence Internet dissent reflect new, material targeting | BIA/Gov: Internet control is consistent with longstanding suppression of dissent; pre-1998 reports already showed laws limiting internet activity | Court: Internet repression is part of ongoing policy, not a material change that would excuse untimeliness |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (BIA has broad discretion to grant or deny motions to reopen)
- Smith v. Holder, 627 F.3d 427 (1st Cir. 2010) (standard of review for BIA denial of motion to reopen)
- Vaz Dos Reis v. Holder, 606 F.3d 1 (1st Cir. 2010) (review scope: factual findings upheld if supported by substantial evidence)
- Larngar v. Holder, 562 F.3d 71 (1st Cir. 2009) (distinguishing personal, self-induced changes from country conditions)
- Wang v. B.I.A., 437 F.3d 270 (2d Cir. 2006) (disallowing reopening based on self-induced changes while unlawfully remaining)
- Gilca v. Holder, 680 F.3d 109 (1st Cir. 2012) (country-condition evidence must point unerringly to material change)
- Nikijuluw v. Gonzales, 427 F.3d 115 (1st Cir. 2005) (standard for proving changed country conditions)
- Khan v. Attorney Gen. of U.S., 691 F.3d 488 (3d Cir. 2012) (membership in a political party may be a personal change not excusing untimely reopening)