Yinpeng Huang; Sujun Yan; Pu Huang v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2091
___________
YINPENG HUANG; SUJUN YAN; PU HUANG,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A098-974-007, A098-974-008, and A098-974-009)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 21, 2010
Before: SLOVITER, JORDAN and GREENBERG Circuit Judges
(Opinion filed: April 22, 2010)
_________
OPINION
_________
PER CURIAM
Yinpeng Huang, his wife (Sujun Yan), and their adult son (Pu Huang) petition for
review of the Board of Immigration Appeals’ (“BIA”) decision denying their motion to

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Their applications alleged two other bases for their fear of returning to China:1
(1) in 1992, Chinese officials forced Yan to abort a pregnancy; and (2) in 2001, Yan gave
birth to a second child, in violation of China’s family planning policy. Those claims are
not at issue here.
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reopen their removal proceedings. For the reasons that follow, we will deny the petition.
I.
Petitioners are natives and citizens of the People’s Republic of China. In 1997,
Yinpeng Huang entered the United States without being admitted or paroled, and Yan and
Pu Huang followed suit in 1998. Petitioners were ultimately placed in removal
proceedings, and they each applied for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). In support of their respective applications,
they argued that they feared returning to China because, inter alia, Yinpeng Huang had
become involved with the China Democratic Party (“CDP”) since arriving in the United
States.1
In May 2007, after a hearing on the merits, the Immigration Judge (“IJ”) denied
the Petitioners’ respective applications. The IJ rejected Petitioners’ CDP-related claim,
finding that Yinpeng Huang lacked credibility and had failed to provide evidence that
Petitioners would likely be tortured if removed to China. In October 2008, the BIA held
that the IJ did not err in rejecting that claim. The BIA noted that the IJ had “provided
specific, cogent reasons for discrediting the claim,” and that the discrepancies in the
testimony went to the heart of the claim. (BIA Decision of Oct. 14, 2008, at 2.) The BIA

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We do not, however, have jurisdiction to review the portion of the BIA’s decision2
declining to exercise its sua sponte authority to reopen the case. See Calle-Vujiles v.
Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).
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further concluded that Petitioners had not established that they would likely be tortured if
removed to China.
In February 2009 – more than ninety days after the BIA’s final order of removal –
Petitioners moved to reopen their removal proceedings, arguing that the conditions in
China had changed with respect to their CDP-related claim. In support of the motion,
Petitioners submitted the following: (1) an affidavit from Yinpeng Huang, as well as
letters from relatives in China, stating that Chinese officials had visited those relatives
and warned that Yinpeng Huang would be imprisoned if he returned to China; (2) the
U.S. State Department’s 2007 Country Report for China; and (3) a 2003 court record
from a case in China in which a member of the CDP was sentenced to five years’
imprisonment for “instigating and subverting state power.” (See App. at 125-26.) The
BIA ultimately denied the motion, concluding that Petitioners’ evidence did not establish
changed country conditions. The BIA also declined to exercise its sua sponte authority to
reopen the case. Petitioners now seek review of this most recent BIA decision.
II.
We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1), and
review the BIA’s denial of Petitioners’ motion to reopen for abuse of discretion. See2
Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002). Under this deferential standard,

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we must uphold the BIA’s decision unless it is “arbitrary, irrational, or contrary to law.”
Id. at 174 (quotation marks and citation omitted).
An alien generally must file a motion to reopen within ninety days of the entry of
the final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i). There is no such time limit,
however, if the alien’s motion “is based on changed country conditions arising in the
country of nationality or the country to which removal has been ordered, if such evidence
is material and was not available and would not have been discovered or presented at the
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). To prevail on their motion,
therefore, Petitioners had to show that their evidence of changed country conditions was
both new and material.
Petitioners first argue that the BIA abused its discretion by not adequately
considering Yinpeng Huang’s affidavit and their relatives’ letters. Although we have
remanded where the BIA has “fail[ed] to discuss most of the evidentiary record,” see
Zheng v. Att’y Gen. of the U.S., 549 F.3d 260, 269 (3d Cir. 2008), that situation is not
present here. The BIA’s decision not only specifically referred to the affidavit and letters,
but also quoted the affidavit’s central claim, reflected in the letters, that relatives in China
“were warned that [Yinpeng Huang] would be arrested and sentenced to many years in
prison for [his] anti-Chinese government activities.” (BIA Decision of Mar. 31, 2009, at
1-2.) Although we recognize that the BIA’s analysis could have been more detailed, we
are confident that the BIA properly considered the entire record in reaching its decision.

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Because the BIA did not err in concluding that Petitioners’ evidence failed to3
show changed country conditions, we need not consider Petitioners’ argument that their
motion demonstrated prima facie eligibility for asylum, withholding of removal, and CAT
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See Sevoian, 290 F.3d at 178 (stating that the BIA “is not required to write an exegesis on
every contention, but only to show that it has reviewed the record and grasped the
movant’s claims” (internal quotation marks and citation omitted)).
Petitioners next argue that the BIA abused its discretion in concluding that their
evidence failed to establish changed country conditions. We disagree. First, as the BIA
highlighted in its decision, the 2003 court record from China concerned neither
Petitioners nor similarly situated others. Second, although Petitioners note that the 2007
Country Report for China states that some CDP members have been incarcerated at
psychiatric hospitals for the criminally insane and reeducation-through-labor centers,
similar information is set forth in the 2006 Country Report, which was part of the record
in Petitioners’ removal proceedings. Finally, the relatives’ letters, upon which Yinpeng
Huang’s affidavit seemingly relies, do not reflect changed country conditions, as they
state that the Chinese officials’ visits and warnings date back to 2005. Indeed, Yinpeng
Huang testified to this fact during Petitioners’ removal proceedings. None of the letters
indicates that the circumstances have materially changed since those proceedings
transpired.
In light of the above, we conclude that the BIA did not abuse its discretion in
denying Petitioners’ motion to reopen. Petitioners’ argument that a failure to reopen3

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relief. See INS v. Doherty, 502 U.S. 314, 323 (1992) (stating that an alien’s failure to
submit new, material evidence and his failure to establish prima facie eligibility for relief
are independent grounds for denying a motion to reopen).
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would amount to a due process violation lacks merit. Accordingly, we will deny the
petition for review.

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