Xiao He Chen v. Lynch
2016 U.S. App. LEXIS 10467
| 1st Cir. | 2016Background
- Petitioners Xiao He Chen and husband Ling Yu Luo, Chinese nationals, faced removal after Chen entered unlawfully (2000) and Luo overstayed a visa (2002); they married in 2008.
- At a 2010 merits hearing Chen (but not Luo) testified; the IJ denied asylum, withholding, and CAT relief, finding Chen not credible; the BIA affirmed and denied an initial motion to reopen in 2012.
- In 2015 petitioners filed a second motion to reopen, invoking the exception to the time-and-number bar based on changed country conditions in China targeting pro-democracy activists who had operated abroad.
- Petitioners submitted (1) a letter and supporting documents allegedly from Luo’s brother describing his treatment in China, and (2) country-condition reports and media accounts describing human-rights abuses in China.
- The BIA denied the second motion as time-and-number barred, finding the brother’s materials unauthenticated and the country reports insufficient to show a material change in treatment of returnees who were pro-democracy activists abroad.
- Petitioners sought judicial review, arguing the BIA abused its discretion in denying reopening; the First Circuit denied the petition.
Issues
| Issue | Petitioners' Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying the second motion to reopen based on changed country conditions | New evidence (brother’s letter + country reports) shows changed circumstances and prima facie eligibility for relief | Evidence was unauthenticated or merely generalized and did not show a material change since the 2010 hearing | No abuse of discretion; motion time-and-number barred because changed-circumstances exception not met |
| Whether the BIA properly weighed/authenticated the familial-letter and attached documents | Chen’s affidavit can authenticate the brother’s letter and attached official records | Documents lacked independent verification and required formal authentication; Chen was found not credible at the merits hearing | BIA reasonably discounted unauthenticated family documents and refused to credit Chen’s attempted authentication |
| Whether unreliability of general country reports sufficed to show changed circumstances | Country reports and media show increased suppression of dissidents, implying changed risk to returnees | Reports are general, do not identify returnees from abroad, and show no material increase from 2010–2015 | Reports were insufficient to demonstrate a material change specific to returnees who had been pro-democracy activists abroad |
| Whether petitioners could raise the 2009 State Department Human Rights Report | That report demonstrates preexisting or worsening conditions and should have been considered | Petitioners never introduced the 2009 report or sought judicial notice; issue not exhausted | Claim was unexhausted and cannot be considered on review |
Key Cases Cited
- INS v. Abudu, 485 U.S. 94 (grounds for denying motions to reopen and finality interests)
- INS v. Doherty, 502 U.S. 314 (standard of review for motions to reopen)
- Larngar v. Holder, 562 F.3d 71 (changed-country-circumstances exception to time/number limits)
- Haizem Liu v. Holder, 727 F.3d 53 (comparing new evidence to country conditions at merits hearing)
- Hang Chen v. Holder, 675 F.3d 100 (BIA discretion to discount unauthenticated documents)
- Le Bin Zhu v. Holder, 622 F.3d 87 (crediting authentication attempts undermined by prior adverse credibility findings)
- Ahmed v. Holder, 611 F.3d 90 (exhaustion requirement for appellate review)