Phik Ha Lie v. Attorney General of the United States

Citation: 349 F. App'x 706Docket: No. 08-1680

Court: Court of Appeals for the Third Circuit; October 20, 2009; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Phik Ha Lie, an Indonesian citizen, overstayed her visitor's visa after entering the U.S. on May 27, 2000, and was subsequently served with a Notice to Appear for removal proceedings under the Immigration and Nationality Act (INA). She applied for asylum, withholding of removal, and protection under the Convention Against Torture, citing persecution due to her Chinese ethnicity and Christian faith. An Immigration Judge denied her claims on March 1, 2004, and the Board of Immigration Appeals affirmed this decision on June 23, 2006, concluding that the incidents Lie faced did not constitute persecution and that she failed to demonstrate a well-founded fear of future persecution. After the denial of her petition for review on October 9, 2007, Lie filed an untimely motion to reopen her removal proceedings on November 13, 2007, based on her daughter's recent grant of asylum. The Board denied this motion on February 5, 2008, stating that the daughter's asylum did not qualify as a changed circumstance that would allow an exception to the 90-day filing limit for reopening. The Board also refused to use its authority to reopen the case sua sponte, deeming the situation not exceptional. Lie timely petitioned for review of this decision, but the court has jurisdiction under INA and will deny her petition. The Board’s authority to adjudicate motions is supported by regulation and is reviewed for abuse of discretion, which requires evidence that is material and unavailable during the initial hearing to grant a motion to reopen. The 90-day limitation for filing such motions applies unless there are changed circumstances in the country of nationality that are material and could not have been previously presented.

Lie's motion to reopen her asylum proceedings was deemed untimely, being filed over a year late. Under 8 U.S.C. § 1229a(c)(7)(C)(ii), untimely motions must demonstrate changed country conditions, which Lie failed to do, nor did she challenge the Board’s finding on this issue. Instead, she argued for the ability to reopen her case or submit a successive asylum application based on changed personal circumstances, invoking due process and international refugee conventions. Lie contended that the Board's interpretation of the Immigration and Nationality Act (INA) should not receive Chevron deference, asserting that § 208(a)(2)(D) alone permits her to file an additional application despite being under a removal order. This argument was rejected, as § 208(a)(2)(D) necessitates demonstrating changed circumstances that materially affect eligibility or extraordinary circumstances for delays. The regulations define "changed circumstances" to encompass both changes in the applicant's country and personal changes affecting eligibility. The Board's precedent in Matter of C-W-L, which mandates compliance with the motion to reopen requirements for aliens under a final order of removal, was upheld and found reasonable under Chevron deference. The Board concluded that Lie's situation must adhere to the stricter standards for motions to reopen rather than the more lenient standards for successive asylum applications.

The Board was tasked with analyzing the relationship between sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Immigration and Nationality Act (INA) and their implementing regulations. Under INA 208(a)(2)(B) and (C), an alien is permitted to file only one asylum claim within one year of arrival in the U.S., with exceptions available for changed or extraordinary circumstances affecting eligibility. Section 240(c)(7)(C)(ii), introduced by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), allows a motion to reopen within 90 days of a final removal order, with the deadline excused for successive asylum applications if the alien presents material evidence of changed country conditions that were not available at the prior proceeding. The Board noted that section 208(a)(2)(D) does not address reopening, as this is covered elsewhere in the statutory framework, and the exceptions in section 208 apply at an earlier stage than the 90-day reopening rule. Therefore, reopening restrictions serve as additional limitations on the use of asylum claims to challenge final removal orders. The court, in Liu, upheld the Board's interpretation as reasonable and deserving Chevron deference, concluding that an alien who disregards a final removal order cannot evade the reopening deadline by claiming changed personal circumstances. The court also emphasized that other appellate courts, including the Second Circuit, agree that aliens under a final removal order must demonstrate changed country conditions rather than personal circumstances to support a new asylum application.

8 U.S.C. 1158(a)(2)(D) does not address situations where an applicant has already been ordered removed and the removal order is final. However, 8 U.S.C. 1229(a)(c)(7)(C) provides a mechanism for filing a successive asylum petition under these circumstances. The Board's interpretation of these statutes is intended to harmonize their provisions, ensuring that none are rendered meaningless. An alien can file a successive asylum application based on changed personal circumstances or country conditions at any time before a final removal order is entered or within 90 days of a motion to reopen. Beyond these conditions, changed country conditions must be demonstrated under 8 U.S.C. 1229a(c)(7)(C)(ii). Courts have affirmed this interpretation, noting that an alien does not possess a liberty or property interest in discretionary asylum if they have previously been adjudicated removable. Remaining unlawfully in the U.S. after a removal order carries penalties under 8 U.S.C. 1253(a)(1)(A). Due process does not preclude the Attorney General from establishing reasonable limits on successive asylum applications. Notably, time and number limitations do not apply if the Department of Homeland Security does not oppose a motion to reopen, and the Board has the discretion to reopen cases sua sponte based on individual circumstances. Thus, options for relief exist for aliens with changed circumstances even after the 90-day window has closed.

Lie's argument regarding a violation of international law fails, as the United States, a signatory of the 1967 United Nations Protocol Relating to the Status of Refugees, has implemented regulations to comply with it, particularly through the Refugee Act of 1980, which aligned U.S. law with its treaty obligations. The 1967 Protocol is not self-executing and does not grant rights beyond those established by domestic legislation. Lie has not provided evidence that the Board's interpretation of the relevant statutory provisions contradicts international law principles. Consequently, Lie, subject to a final removal order, needed to file a motion to reopen to seek a new asylum application, which she did over ninety days after the order. She relied on her daughter's asylum grant as evidence of changed circumstances, which the Board found insufficient as it did not reflect changes in country conditions per 8 U.S.C. 1229a(e)(7)(C)(ii). The Board did not abuse its discretion in denying her motion to reopen, and the court lacks jurisdiction to review the Board's decision regarding sua sponte reopening. Thus, the petition for review is denied. Additionally, Lie's husband, Pek Siong Lo, was a derivative applicant on her asylum application, which must typically be filed within one year of entering the U.S., and previous applicants who were denied cannot reapply.