FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
J. Yerman on brief for petitioners.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, Civil Division, United States
Department of Justice, and Christina P. Greer, Trial
Attorney, Office of Immigration Litigation, on brief for
Howard, Chief Judge, Selya and Lynch, Circuit Judges.
sole question in this immigration case is whether the Board
of Immigration Appeals (BIA) abused its discretion in
declining to reopen the petitioners' removal proceedings.
We answer that question in the negative and deny the petition
for judicial review.
historical facts and travel of the case are susceptible to
succinct summarization. The petitioners (Xiao He Chen and her
husband, Ling Yu Luo) are Chinese nationals. Early in 2000,
Chen entered the United States illegally. Her husband, Luo,
followed on October 17, 2002, entering the country by means
of a visitor's visa that granted him permission to remain
until April 16, 2003. Luo overstayed, and the couple married
on December 18, 2008. Meanwhile, Chen became an active
participant in the China Democracy Party Foundation (CDP), a
group committed to political reform in China. Luo also became
a member of the CDP.
2009, federal authorities instituted removal proceedings
against both petitioners. Later that year, the petitioners
conceded removability, and an immigration judge (IJ) found
Chen removable under 8 U.S.C. § 1182(a)(6)(A)(i) (for
being present in the United States without having been
lawfully admitted or paroled) and found Luo removable under 8
U.S.C. § 1227(a)(1)(B) (for remaining in the United
States longer than permitted).
remained were the petitioners' applications for asylum,
withholding of removal, and protection under the United
Nations Convention Against Torture (CAT). These entreaties
centered on the petitioners' claim that, if repatriated,
they would be subject to persecution (or worse) because of
their pro-reform political activities in the United States.
a merits hearing held on May 10, 2010, at which Chen (but not
Luo) testified, the IJ delivered a bench decision denying all
three kinds of requested relief. The IJ did not find Chen
credible, did not find the evidence sufficient to support
asylum, and did not find that the petitioners had carried
their burden of proving either of their other claims.
petitioners unsuccessfully appealed to the BIA. When notified
of the BIA's decision, they abjured judicial review and
instead filed a timely motion to reopen and reconsider. They
submitted an amended motion on January 30, 2012, attaching a
variety of supporting documents. The BIA denied the amended
motion on May 21, 2012. Once again, the petitioners eschewed
the filing of a petition for judicial review.
three years passed. In the spring of 2015, the petitioners
filed a second motion to reopen. They argued changed country
circumstances and attached a trove of documents (including
country conditions reports, news articles, and family
correspondence). The BIA denied the motion, concluding that
it was time-and-number barred and that the "changed
country circumstances" exception did not apply. The
petitioners then filed the instant petition for judicial
not tarry. The petition before us solicits our review of the
BIA's order denying the latest motion to reopen. Motions
to reopen are disfavored in immigration practice, and for
good reason: there is a compelling public interest in both
finality and the expeditious processing of immigration
proceedings. See INS v. Abudu, 485
U.S. 94, 107 (1988); Falae v.
Gonzales, 411 F.3d 11, 14 (1st Cir. 2005). As a
result, the BIA "enjoys considerable latitude in
deciding whether to grant or deny such a motion."
Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).
Consequently, we review the BIA's denial of a motion to
reopen solely for abuse of discretion. See INS
v. Doherty, 502 U.S. 314, 323 (1992);
Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003).
Under that deferential standard, we will affirm the BIA's
order unless the petitioners show "that the BIA
committed an error of law or 'exercised its judgment in
an arbitrary, capricious, or irrational way.'"
Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013)
(quoting Raza, 484 F.3d at 127).
present purposes, it is important to note that this case
involves the disposition of the petitioners'
second motion to reopen. An alien who aspires to
reopen removal proceedings is usually limited to only a
single motion to reopen, which must be filed within 90 days
of the final agency order. See 8 C.F.R. §
1003.2(c)(2). These time and number restrictions may be
relaxed, however, when the alien establishes that
"changed circumstances have arisen in the country of
nationality or in the country to which deportation has been
ordered." Larngar v. Holder, 562 F.3d 71,
74 (1st Cir. 2009) (citing 8 C.F.R. § 1003.2(c)(3)(ii)).
petitioners attempt to avoid the time-and-number bar by
invoking this exception. To carry the day, an assertion of
changed country circumstances must satisfy two ...