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Bin Chen v. Attorney General of the United States
Citation: 331 F. App'x 984Docket: No. 08-1488
Court: Court of Appeals for the Third Circuit; June 11, 2009; Federal Appellate Court
Bin Chen's petition for review of a Board of Immigration Appeals (BIA) decision denying his motion to reopen immigration proceedings has been denied. Chen, a Chinese national who entered the U.S. in 1999, sought asylum due to persecution linked to his opposition to China's family planning policy but was denied relief and granted voluntary departure. His appeal was dismissed by the BIA in 2002. Following his divorce and subsequent remarriage in the U.S., Chen filed a motion to reopen in 2008, claiming a rise in forced abortions and sterilizations in China and asserting that he would face persecution upon his return due to his family situation. The BIA denied the motion, citing violations of time and number limitations for reopening. Although motions based on changed circumstances in the applicant's home country can waive these limitations, the BIA found that Chen did not provide sufficient evidence of a material change in family planning policies in Fujian Province. Key evidence submitted, such as affidavits and notices, were deemed inadequate due to issues like lack of original documents and insufficient corroboration. The BIA also referenced an adverse credibility finding against Chen that had not been overturned. Additionally, Chen's argument that he was filing a "successive asylum application" based on changed personal circumstances was rejected, affirming that he was subject to the 90-day deadline for motions to reopen. Chen's argument for a successive asylum application without adhering to motion to reopen limits is rejected, referencing Liu v. Attorney General, which mandates that an asylum application must accompany a motion to reopen following removal proceedings, subject to specific time and numerical constraints. Chen's comparison to Zheng v. Attorney General is also dismissed; the Board of Immigration Appeals (BIA) adequately referenced nearly all evidence Chen submitted, concluding it did not demonstrate significant changes in conditions in China. Although Chen claims the BIA overlooked 23 pieces of evidence, the BIA's decision indicated review of most, except for one recounting. The BIA determined that the evidence did not show a substantial change in family planning policy in Fujian Province, supported by substantial evidence. Chen's assertion of presenting "new evidence" was found to be previously available, and his claim for relief under the Convention Against Torture is deemed unexhausted as it was not raised in his BIA motion. The petition for review is denied, with the court emphasizing that past credibility determinations do not invalidate all future asylum applications, but affirming that the BIA’s decision was based on inadequate evidence of changed conditions rather than a prior adverse credibility finding.