Submitted December 20, 2013.
Petition for Review of an Order of the Board of Immigration Appeals.
For Xiu Ling Chen, Petitioner: Theodore N. Cox, New York, NY.
For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Karen Yolanda Drummond, Laura Halliday Hickein, Carl H. McIntyre, Manuel Palau, Jennifer A. Singer, Kelly J. Walls, U.S. Department of Justice, Washington, DC.
Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Xiu Ling Chen petitions for review of an order by the Board of Immigration Appeals (" BIA" ) denying her motion to reopen her application for asylum, withholding of removal and protection under Article III of the Convention Against Torture (" CAT" ). Because she has failed to present previously unavailable, material evidence to support reopening her case, we deny the petition.
Chen was born in Changle (sometimes spelled Chang Le) City in the Fujian Province of China. She arrived in the United States on January 3, 2001, without admission or inspection. She affirmatively applied for asylum, withholding of removal, and protection under CAT on July 29, 2001. Chen initially applied for asylum based on a forced abortion she alleged had occurred in China, and she and her husband submitted affidavits to support the claim. In 2005, she withdrew that claim and amended her application to reflect the basis for the asylum claim at issue here: since she has had three sons while in the United States, she fears that she will be subject to involuntary sterilization upon her return to China and that her family will be economically persecuted by virtue of the fines imposed on those who violate China's one-child policy.
Chen's application was denied by an immigration judge (" IJ" ) in 2005, and her appeal was dismissed by the BIA. On Chen's petition, the Seventh Circuit remanded to the BIA for additional fact finding to determine whether the financial consequences to Chen upon her return to China would constitute persecution.
See Xiu Ling Chen v. Gonzales, 489 F.3d 861, 863 (7th Cir. 2007) (" The Board needs to decide (a) what financial exactions normally are used in Fujian, and (b) how these consequences should be classified under the legal standard that separates inducement and encouragement (allowed) from 'force' (which our law treats as persecution)." ). The BIA further remanded to the IJ, who found Chen's fears about sterilization and fines to be credible but gave her testimony diminished weight due to her past false statements in her initial asylum application. The IJ ultimately denied
Chen's application, finding she had not established that Fujian Province sterilized women in Chen's situation and that any economic burdens imposed to encourage compliance with China's population control policies did not amount to persecution. On May 25, 2012, the BIA affirmed that decision.
Chen both petitioned for review of the BIA order in the Seventh Circuit and timely sought to reopen the decision, arguing that new and previously unavailable evidence showed that country conditions in China had changed. The Seventh Circuit denied her petition for review.
Xiu Ling Chen v. Holder, 500 F.Appx. 533 (7th Cir. 2013). On December 14, 2012, the BIA denied Chen's motion to reopen, finding that some of her evidence was previously available, some was incomplete, and none of the documents from China was authenticated--and, moreover, she had failed to make the ...