Chen v. US ATTY. GEN.

Citations: 565 F.3d 805; 2009 U.S. App. LEXIS 7749; 2009 WL 981212Docket: 08-10259

Court: Court of Appeals for the Eleventh Circuit; April 13, 2009; Federal Appellate Court

Original Court Document: View Document

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Yi-Qin Chen, a Chinese national, is subject to a final order of removal issued in 1995. In 2006, she sought to file a successive asylum application based on changed circumstances, arguing that her two U.S.-born children and a third child born in China would lead to persecution under China's one-child policy. Chen contended that she was not required to file a motion to reopen her case under 8 U.S.C. 1229a(c)(7)(C)(ii) to pursue the successive application. The Immigration Judge (IJ) denied her motion, a decision upheld by the Board of Immigration Appeals (BIA). Chen appealed the BIA's dismissal of her appeal regarding the IJ’s denial.

While her successive asylum motion was pending, Chen also filed a motion to remand her case to the IJ for claims of withholding of removal under international treaties. The BIA interpreted this as an untimely motion to reopen and declined to consider her claims, citing her failure to demonstrate changed circumstances per 8 C.F.R. 1003.2(c)(3)(ii). 

The case raises a unique question in the Eleventh Circuit about whether an alien under a final order of removal must meet reopening requirements to file for a successive asylum application. The BIA previously ruled in In re C-W-L. that such a requirement exists. The summary details relevant statutory provisions, emphasizing that asylum applications typically must be filed within one year of arrival unless changed or extraordinary circumstances are demonstrated.

An alien subject to a final order of removal may file one motion to reopen removal proceedings within 90 days of the order, as specified in 8 U.S.C. 1229a(c)(7)(A) and (c)(7)(C)(i). However, no time limit applies if the motion seeks relief under 8 U.S.C. 1158 or 1231(b)(3) based on changed country conditions. The DOJ initially proposed that changed circumstances occurring after a denial should only be considered in a motion to reopen, but later retracted this requirement, allowing for broader definitions of changed circumstances. If an alien can file a successive asylum application without a motion to reopen, they must demonstrate changed circumstances, which are more broadly defined than changed country conditions. If a motion to reopen is necessary for a successive asylum application, then the alien must show changed country conditions if the motion is filed more than 90 days post-removal order.

In the BIA case C-W-L-, it was determined that an alien must meet the criteria for a motion to reopen under 8 U.S.C. 1229a(c)(7)(C)(ii) to file a successive asylum application. The BIA clarified that interpreting the asylum application provision as an independent basis for filing at any time would undermine the established statutory and regulatory framework. The BIA rejected arguments that the regulatory history suggested no motion to reopen was required for successive applications, noting that the history does not explicitly state unlimited applications could be filed after a final order of removal without a motion to reopen. The BIA concluded that the regulations permit updated or successive asylum applications based on changed personal circumstances only during proceedings before a final order or within the 90-day motion to reopen deadline.

An alien subject to a final order of removal is restricted from filing a successive asylum application unless it is part of a timely and properly filed motion to reopen, or if the motion is justified by changed country conditions. Chen argues that the Board of Immigration Appeals (BIA) incorrectly required her to file a motion to reopen under 8 U.S.C. § 1229a(c)(7)(C)(ii) to pursue a subsequent asylum application under 8 U.S.C. § 1158(a)(2)(D). She contends that the BIA’s interpretation in the C-W-L- case is erroneous and not entitled to Chevron deference, asserting that the regulatory history shows the Department of Justice intended to allow applications based on changed circumstances without requiring a motion to reopen.

Chen claims that the BIA’s ruling effectively nullifies the statutory provision, as it prevents successive applications for those already ordered removed. Moreover, she argues that the BIA’s interpretation represents a substantive change to regulations that necessitates notice and comment procedures. The BIA's interpretations of immigration statutes are generally granted Chevron deference, especially in immigration matters, unless Congress has clearly addressed the issue. According to the BIA, the language of § 1158(a)(2)(D) and the restrictions in § 1229a(c)(7)(C)(ii) should be read together, establishing that aliens under final removal orders face additional limitations on reopening their cases.

The conclusion drawn is that the BIA’s interpretation is reasonable and aligns with statutory language and intent. Consequently, the court denies Chen’s petition for review, affirming the BIA's dismissal of her appeal regarding the denial of her motion to file a successive asylum application based on changed personal circumstances.