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P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

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Zheng v. Gonzales: IMMIGRATION - successive asylum application & requests for motion to reopen

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3048
___________
Wen Ying Zheng, *
*
Petitioner, *
*
v. * Petition for Review of an Order
* of the Board of Immigration Appeals.
Michael B. Mukasey, Attorney *
General of the United States, *
*
Respondent. *
___________
Submitted: June 11, 2007
Filed: December 4, 2007
___________
Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.
___________
LOKEN, Chief Judge.
Wen Ying Zheng, a native and citizen of the Peoples Republic of China,
entered the United States in 1994. Facing deportation in September 1997, Zheng
applied for asylum, withholding of deportation, and relief under the Convention
Against Torture, claiming a fear of persecution if she returned to China on account of
her past political activities. After the birth of a child in 1998, Zheng claimed that she
also feared persecution and forced sterilization under Chinas One Child policy. See
8 U.S.C. 1101(a)(42). In June 2003, an immigration judge denied Zhengs claims
for relief, granted her voluntary departure, and ordered her removed. Zheng appealed,
-2-
the BIA summarily affirmed, and Zheng dismissed a petition for review to this court
in November 2004.
In September 2005, Zheng filed a motion with the BIA for leave to file a
successive asylum application. Relying on 8 U.S.C. 1158(a)(2)(D) and 8 C.F.R.
1208.4(a)(4), she claimed that the application was not barred because the birth of her
fourth child created an increased risk of persecution under Chinas One Child policy.
The BIA denied the motion, holding that an alien who is under a final order of
removal must successfully move to reopen the case in order to file a successive
asylum application. The BIA then treated Zhengs motion as a motion to reopen and
denied it as untimely because Zheng submitted no evidence of changed country
conditions. See 8 U.S.C. 1229a(c)(7)(C)(i-ii); 8 C.F.R. 1003.2(c)(3)(ii). Zheng
petitions for judicial review, arguing that the BIA committed an error of law in ruling
that her successive asylum application must meet the more stringent requirements of
a motion to reopen. After the case was submitted, two of our sister circuits issued
decisions upholding the BIAs construction of these statutes and regulations in
factually similar cases. See Chen v. Gonzales, 498 F.3d 758 (7th Cir. 2007); Huang
v. Attorney General, No. 06-3013, slip op., 2007 WL 2815598 (3d Cir. Sept. 28,
2007); accord Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006). We agree with
these decisions and therefore deny the petition for review.
In the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.
104-208, div. C, 110 Stat. 3009-546 (1996) (IIRIRA), Congress enacted a number
of provisions intended to reduce delays and curb perceived abuses in removal
proceedings. Section 304 of IIRIRA provided that motions to reopen must be filed
within ninety days of the entry of a final order of removal, subject to an exception that
is critical to this appeal -- there is no time limit if the motion to reopen claims a right
to asylum based on material new evidence of changed country conditions arising in
the country of nationality or the country to which removal has been ordered. 8
U.S.C. 1229a(c)(7)(C)(i-ii); see 8 C.F.R. 1003.2(c)(3)(ii); Zhao v. Gonzales, 440
1A motion to reopen must be filed within 90 days of entry of a final
administrative order of removal. 8 U.S.C. 1229a(c)(7)(C)(i); see 8 C.F.R.
1003.2(c)(2). The BIA affirmed Zhengs removal order in April 2004, more than
a year before she filed the motion for leave to file a successive asylum application.
-3-
F.3d 405, 407 (7th Cir. 2005). Section 604 of IIRIRA amended the asylum statute,
barring successive applications and those filed more than one year after entry unless
the applicant demonstrates the existence of changed circumstances which materially
affect the applicants eligibility for asylum. 8 U.S.C. 1158(a)(2)(B)-(D).
The Attorney Generals regulations implementing 8 U.S.C. 1158(a)(2)(D)
construe the reference to changed circumstances as including activities the
applicant becomes involved in outside the country of feared persecution that place the
applicant at risk. 8 C.F.R. 1208.4(a)(4)(i)(B). Zhengs successive application is
based upon this type of personal circumstance -- the birth of her fourth child in the
United States. Because she presented no new evidence of a material change of
conditions in China, and because her motion was untimely under 8 U.S.C.
1229a(c)(7)(C)(i),1 we must deny her petition for review if the BIA correctly ruled
that an alien subject to a final order of removal must successfully move to reopen the
proceedings in order to file a successive asylum application. We review the BIAs
legal determinations de novo, according substantial deference to the [BIAs]
interpretation of the statutes and regulations it administers. Negele v. Ashcroft, 368
F.3d 981, 982 (8th Cir.), cert. denied, 543 U.S. 1035 (2004).
Congress has not defined how 8 U.S.C. 1158(a)(2)(D) and 1229a(c)(7)(C)(ii)
interact. As removal proceedings can be protracted, an alien may confront changed
circumstances warranting an untimely or successive asylum application before the
proceedings have culminated in a final order of removal. Thus, the BIAs ruling
under review -- that a successive application, if filed after entry of a final order of
removal, must also meet the more restrictive changed conditions requirement of
2Indeed, the cross reference to 8 U.S.C. 1158 in 1229a(c)(7)(C)(ii), though
not conclusive, is some support for this interpretation.
-4-
1229a(c)(7)(C)(ii) -- does no violence to the plain language of either statute.2
Moreover, practical realities support this interpretation. As the Second Circuit
observed, it would be ironic, indeed, if petitioners . . . who have remained in the
United States illegally following an order of deportation, were permitted to have a
second and third bite at the apple simply because they managed to marry and have
children while evading authorities. Wang, 437 F.3d at 274, quoted in Huang, 2007
WL 2815598 at *4. The Seventh Circuit made the same point in Chen, commenting
that the distinction between changed country conditions and changed personal
conditions is sensible after a final order of removal has been entered, since the
alien can manipulate the latter but not the former. 498 F.3d at 760.
In arguing to the contrary, Zheng relies heavily on the legislative history of the
Attorney Generals implementing regulations, now 8 C.F.R. 1208.4. The proposed
regulation governing successive asylum applications initially provided that [c]hanged
circumstances arising after the denial of the application but before the aliens
departure or removal from the United States shall only be considered as part of a
motion to reopen. 62 Fed. Reg. 444, 463 (proposed Jan. 3, 1997). The final
regulation deleted this language because, the Attorney General explained, of
inconsistency between the formulation of changed circumstances in 1158(a)(2)(D)
and 1229a(c)(7)(C)(ii). 62 Fed. Reg.10312, 10316, 10321 (Mar. 6, 1997). Zheng
argues that this unambiguously establishes that [she] is not required to reopen her
prior claim in order to pursue the new [asylum] claim (emphasis in original). Like
the Seventh and Third Circuits, we disagree. See Chen, 498 F.3d at 760; Huang, 2007
WL 2815598 at *3-4. As we have explained, an untimely or successive asylum
application may be filed before entry of a final order of removal. Requiring the
applicant to satisfy the more stringent changed conditions requirements of a motion
to reopen at that time would be inconsistent with 8 U.S.C. 1158(a)(2)(D). But
-5-
changing the regulations because of this possible inconsistency does not reflect a clear
intent to weaken the requirements of a motion to reopen when an alien under a final
order of removal seeks to file an untimely or successive asylum application. The final
regulation confirms this interpretation by providing that, when an asylum application
is filed after completion of removal proceedings or when the BIA has obtained
jurisdiction over the proceedings, the application must be filed in conjunction with
a motion to reopen. 8 C.F.R. 1208.4(b)(3)(ii) and (4).
Zheng further argues that the Second Circuit acknowledged the procedure she
seeks to invoke in Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003). See also Haddad v.
Gonzales, 437 F.3d 515, 518 (6th Cir. 2006). However, in denying relief to aliens
who filed untimely motions to reopen, those decisions simply suggested in dicta that
the relief Zheng seeks from the BIA in this case might be available under 8 U.S.C.
1158(a)(2)(D). The Seventh Circuit concluded that this dicta was speculative and
declined to follow it. Chen, 498 F.3d at 760-61. We agree.
Like our sister circuits that have considered the question, we conclude that the
BIA reasonably harmonized the relevant statutes and regulations in concluding that
an alien under a final order of removal must successfully reopen under 8 U.S.C.
1229a(c)(7)(C)(ii) in order to pursue an untimely or successive asylum application
under 8 U.S.C. 1158(a)(2)(D). Accordingly, we deny the petition for review.
______________________________
 

 
 
 

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