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Liu v. Attorney General of the United States

February 4, 2009


On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA No. A77-121-691) Immigration Judge: Alberto J. Riefkohl.

The opinion of the court was delivered by: Greenberg, Circuit Judge.


Submitted under Third Circuit LAR 34.1(a) October 28, 2008.

BEFORE: SLOVITER and GREENBERG, Circuit Judges, and IRENAS, District Judge.*fn1



This matter comes on before this Court on a petition for review brought by Ying Liu of a decision and order entered July 25, 2007, of the Board of Immigration Appeals ("BIA"). Liu is a citizen of the People's Republic of China from Fujian Province who has resided in the United States since 1999 even though she does not have a lawful presence here and an immigration judge ("IJ") ordered her removed.

Liu first attempted to enter this country when she flew to Atlanta in 1997 but inasmuch as she could not legally enter she was not admitted and thus she returned to China. Nevertheless, on June 2, 1999, she again arrived in the United States, this time at Los Angeles, but airport immigration personnel advised her that she did not appear to be admissible and did not have the documentation required to authorize her admission.*fn2 At that time, in a sworn statement, she said that she was a citizen of China and had been living legally in Brazil. This claim had documentary support because Liu possessed a Chinese passport issued on November 19, 1998, by the Chinese Consulate General in Sao Paulo, Brazil. Moreover, her knowledge of facts about Brazil further supported her claim to have been in that country, as she correctly identified Brasilia as its capital and Portugese as its language. She also stated at Los Angeles that after she left Brazil she went to Cambodia and Hong Kong before coming to the United States. At Los Angeles Liu gave her reason for coming to this country as the economic conditions in Brazil as she said they were not good and thus she had come to the United States "[t]o seek job opportunity." App. at 288. Of course, this economic explanation for her entry into the United States could not have been a basis for the granting of asylum.*fn3

In October 1999, the former Immigration and Naturalization Service initiated removal proceedings against Liu. At a hearing on those proceedings on August 28, 2000, Liu dramatically shifted her explanation of why she came to the United States and in doing so demonstrated her lack of concern for the truth by testifying that she never had been to Brazil but had left China by reason of her opposition to its family planning population control policies. She attempted to explain away her earlier claim of having resided in Brazil on the basis of it being a fabrication that a smuggler suggested to her. Thus, she conveniently changed her reason for coming to this country from seeking economic improvement, a reason plainly insufficient to support an asylum claim, to her opposition to Chinese birth control measures, a reason that might support an asylum claim. Clearly, she gave a materially false statement either at the Los Angeles airport when she entered the country or at her hearing before the IJ in her initial judicial attempt to obtain asylum.

The IJ understandably rejected Liu's testimony because the evidence demonstrated, among other things, that Liu's original statement that she had been in Brazil had been accurate, as her passport had been issued in that country and was stamped showing her entry into Cambodia.*fn4 Thus, the IJ found that she was "constantly adjusting her story" and "her oral testimony and her written application for asylum were strictly a concocted and invented story which had nothing to do with the original facts to come to this country." Id. at 200.*fn5 Accordingly, the IJ denied her application for asylum, withholding of removal, and protection under the Convention Against Torture. Moreover, the IJ ordered her removed from the country. Liu appealed from the IJ's order to the BIA which affirmed the IJ's decision without opinion on November 6, 2002. She did not file a petition for review of the BIA's decision and order.

But Liu did not leave the United States, even though she did not have legal status here and the IJ, affirmed by the BIA, ordered her removed. Rather, she remained in this country, married, and had two children. Subsequently, however, she filed a motion to reopen and a request to file a successive asylum application with the BIA predicated on her claim that if removed to China she would be sterilized forcibly on account of the birth of her children in this country. Liu filed numerous documents in support of her application, eleven she listed as "Personal Evidence" and fourteen she listed as "Background Information."

Liu's application to reopen, however, was not successful for on July 25, 2007, the BIA issued a comprehensive decision and order denying her motion. In its decision the BIA pointed out that both her motion to reopen and her request to file a successive asylum application were untimely. Furthermore, both applications depended on Liu demonstrating that there had been changed conditions or circumstances in China between the time of her original asylum and removal proceedings and the filing of the motion to reopen, and that the evidence showing the changed conditions previously had been unavailable and could not have been discovered or presented at her earlier hearing. The BIA concluded that Liu had not made these showings and thus denied her motion. Moreover, the BIA concluded that Liu did not demonstrate that she had a reasonable fear of persecution if she returned to China. Furthermore, the BIA rejected Liu's contention that 8 U.S.C. § 1158(a)(2)(D) established an independent basis for an alien filing an asylum application at any time without regard for the time limitations otherwise applicable to motions to reopen. Liu has filed a petition for review of the July 25, 2007 decision and order, and we now deny her petition.

On this petition for review Liu makes four principal points: (1) the BIA erroneously mischaracterized her claims by finding that she based them on the birth of her children in this country; (2) the BIA's conclusion that she had not demonstrated germane changed circumstances in China was wrong; (3) she was eligible to file a successive asylum application because, in her view, the material provisions in the Immigration and Nationality Act ("INA") "when read together could not be clearer. Congress expressly stated that an applicant could move to reopen without concern for time limitations, upon a showing of changed conditions that were previously unavailable, in order to ...

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