on the briefs: [*]
FOR REVIEW FROM AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
A. Skalmowski, Alhambra, California, for Petitioner.
A. Readler, Principal Deputy Assistant Attorney General,
Civil Division; Russell J.E. Verby, Senior Litigation
Counsel; and Nancy K. Canter, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for Respondent.
PHILLIPS, McKAY, and McHUGH, Circuit Judges.
Petitioner Liying Qiu, a native and citizen of the
People's Republic of China, sought asylum and withholding
of removal based on her status as a Christian who does not
agree with China's state-sanctioned version of
Christianity and as a woman who has violated China's
one-child policy by having three children. Her application
was denied by the immigration court in 2011, and the Board of
Immigration Appeals affirmed that decision in March 2013. In
December 2015, Petitioner filed a motion to reopen based on
the significantly increased persecution of Christians in
China in 2014 and 2015. The BIA denied her motion to reopen
as untimely. Petitioner now seeks review of that decision.
review the BIA's denial of Petitioner's motion to
reopen for an abuse of discretion. See Maatougui v.
Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). "The
BIA abuses its discretion when its decision provides no
rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only
summary or conclusory statements." Id.
(internal quotation marks omitted). Moreover,
"[c]ommitting a legal error or making a factual finding
that is not supported by substantial record evidence is
necessarily an abuse of discretion." Elzour v.
Ashcroft, 378 F.3d 1143, 1150 n.9 (10th Cir. 2004).
general, a petitioner may only file a motion to reopen
"within 90 days of the date of entry of a final
administrative order of removal." 8 U.S.C. §
1229a(c)(7)(C)(i). However, "[t]here is no time limit on
the filing of a motion to reopen" an asylum case if the
motion to reopen 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." Id.
support her motion to reopen, Petitioner submitted numerous
articles reporting a significant increase in the persecution
of Christians in China in 2014 and 2015. One human rights
organization reported in 2015 that there had been "a 300
percent increase in abuse and persecution against Chinese
Christians since 2013." (R. at 52.) The report explained
that the increase in the number of Christians in China had
"triggered a unique sense of crisis" within the
Chinese Communist Party, leading to a significantly increased
level of persecution by the government. (R. at 52-53.)
Another report detailed how the number of people sentenced
for activity related to their faith had drastically expanded
in 2014 compared to the previous year. (R. at 60.) And an
organization that tracks the persecution of Christians
worldwide bumped China up its rank of worst-offender lists
from 37th in 2014 to 29th in 2015. (R. at 57.)
more persuasively, Petitioner also submitted a portion of the
2015 annual report issued by the U.S. Commission on
International Religious Freedom-an independent, bipartisan
U.S. government entity that monitors religious freedom
violations globally and makes policy recommendations to the
President, the Secretary of State, and Congress. In this
report, the U.S. Commission explained that in 2014 the
Chinese government engaged in "unprecedented violations
against" the religious freedoms of Protestant
Christians, among others. (R. at 65.) The U.S. Commission
explained that "although Christianity is
state-sanctioned, the government continues to engage in
severe violations of religious freedom against both
registered and unregistered Catholics and Protestants."
(Id.) The U.S. Commission then described an
"alarming increase in systematic, egregious, and ongoing
abuses" against Christians by the Chinese government.
(Id.) Indeed, the U.S. Commission noted that
"[s]ome have characterized the new wave of persecution
against Christians that swept through China in 2014 as the
most egregious and persistent since the Cultural
Revolution." (Id.) Among other things, in what
the U.S. Commission characterized as "a striking
development, " "at least 400 [Christian] churches
were torn down or had crosses forcibly removed and/or
demolished in 2014, a notable increase over previous
years." (Id. at 66-67.) The report further
noted that the Chinese government specifically targeted
"house churches"-unregistered congregations of
Christians, like Petitioner and her family, who operate
independently from the state-sanctioned Protestant church.
Indeed, as part of its "anti-cult" effort,
"China's government issued a directive to
'eradicate' unregistered churches over the course of
the next decade, resulting in unregistered church members
facing an increased number of arrests, fines, and church
closures in 2014." (Id. at 68.) And in 2014,
the U.S. State Department reported that the Chinese
government has been "suspend[ing] or revok[ing] the
licenses of lawyers or their firms to stop them from taking
sensitive cases, such as defending . . . house-church
activists." (R. at 83.)
addition to all of these reports, Petitioner also submitted
evidence that her own mother has been a victim of the Chinese
government's increased persecution of Christians and that
the government was now intent on punishing Petitioner for her
beliefs as well. According to a signed, sworn statement
submitted by Petitioner's mother, local government
authorities began cracking down on unregistered churches in
2013. After her church was closed, her house became a meeting
place, and her house church used Christian materials that
were sent to them by Petitioner and her husband. On May 3,
2015, while they were having a gathering at her house, a
group of police officers raided her home, took all of the
Bibles and other Christian materials, and detained her for
ten days, severely beating her on multiple occasions during
her detention. The police "told [her] to confess how
American reactionary religious organizations instigated [her]
daughter and son in law to spread the cult to China."
(R. at 34.) The police also told her to tell her daughter and
son-in-law to return to China to be sanctioned for this
crime. Petitioner's mother was ultimately released from
detention on medical parole, after her husband posted a bond
and signed a pledge to make sure she did not engage in more
illegal religious activities.
with her mother's statement, Petitioner submitted her
mother's medical record from May 13, 2015, in which
medical professionals reported that they saw and treated
multiple bruises on Petitioner's mother's chest,
waist, back, and head on that date.
held that Petitioner had not submitted sufficient evidence to
show a change in country conditions, and thus that her motion
to reopen was untimely under 8 U.S.C. § 1229a(c)(7)(C).
The BIA first held that Petitioner had not submitted
sufficient evidence to show that the treatment of Christians
in China has worsened since her 2011 immigration hearing.
This factual finding is not supported by substantial-or,
indeed, any-evidence in the record. The agency provided no
rational explanation as to how numerous accounts of a 300
percent increase in the persecution of Christians,
"unprecedented violations" of religious freedoms
beginning in 2014, and possibly "the most egregious and
persistent" wave of persecution against Christians since
the Cultural Revolution of 1966-76 was insufficient to show
that the treatment of Christians in China had worsened since
2011. Nor is there anything in the record that would
contradict Petitioner's extensive evidence of a
substantial increase in the government's mistreatment of
Christians since 2011. The BIA pointed to the fact that some
portions of the State Department's 2014 report include
substantially similar language to the 2008 and 2009 reports.
However, the State Department's habit of cutting and
pasting portions of its old reports into newer reports does
nothing to refute all of the other evidence that the level
and intensity of persecution against Christians has increased
significantly since 2011. Nor does anything in the State
Department report ...