No Changed Conditions, No Reopening of Motion in Asylum Case

By Betty Wang, JD on August 13, 2013 | Last updated on March 21, 2019

The Eleventh Circuit has denied a petition from Xia Chen to review the denial of her motion to reopen and to stay her removal from the United States.

Chen, a citizen and native of China, alleges that in accordance with federal removal proceedings, her application should be re-reviewed based on a change in country conditions. The Eleventh Circuit felt otherwise.

Chen had initially entered the United States in 2001, without a valid entry document. But she gave several reasons for an asylum claim.

Upon entry into the United States, Chen claimed to immigration officials that a powerful businessman in China had sexually harassed her because she refused to marry him.

Later, Chen applied for asylum and relief, claiming fear of persecution because she had formerly practiced Falun Gong, a spiritual practice that's been brutally suppressed by the Chinese government.

Chen also claimed that she had been beaten and abused by police officers because she had refused to marry the son of a local police chief.

Her case proceeded, and in 2006, the Board of Immigration Appeals ("BIA") affirmed the ruling of an immigration judge who had denied Chen's application for asylum. The judge denied Chen's application on the grounds that her allegations of persecution were not credible. Chen attempted to file a motion for reconsideration, which the BIA denied as well.

In the case before the Eleventh Circuit, Chen once again attempted to reopen her motion on the grounds that she has new information about a change in her country's conditions. If adequate, such a change in conditions can be a valid basis for reconsideration.

Despite Chen's motion being untimely, the law states that "[t]here is no time limit on the filing of a motion . . . based on changed country circumstances arising in the country of nationality . . . if such evidence is material and was not available and would not have been discovered or presented at the previous hearing."

Chen essentially echoed this in her motion to reopen. She claimed that she has now converted to Christianity, and would be in danger in China because the government has stepped up its persecution of unregistered Christian groups in recent years. With her motion, Chen attached copies of reports, news clippings, a certificate proving that she had been baptized, and other proof of her new religious status.

However, the Eleventh Circuit ultimately did not find that there was a valid change in country conditions. For starters, to reopen the motion, the movant usually bears a heavy burden of proof, as affirmed in Ali v. U.S. Attorney General.

Furthermore, the court compared reports from the country's conditions in 2004, when Chen had initially applied, to the 2009 report that Chen attached with her most recent motion. The later report simply stated that China was continuing the same practices that that it had been implementing since the 2004 report. Thus, there was no actual change, the Eleventh Circuit held.

Chen's untimely motion was, therefore, denied once again.

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