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Zheng v. Keisler: IMMIGRATION - no abuse denying untimely and repeat motion to reopen removal proceedings

United States Court of Appeals
No. 07-1904
Zhong Qin Zheng, *
Petitioner, *
v. * Petitions for Review of an Order
* of the Board of Immigration Appeals.
Michael B. Mukasey, Attorney *
General of the United States, *
Respondent. *
Submitted: December 14, 2007
Filed: April 29, 2008
Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
LOKEN, Chief Judge.
Zhong Qin Zheng, a native and citizen of the People’s Republic of China,
petitions for judicial review of a decision by the Board of Immigration Appeals (BIA)
denying Zheng’s second motion to reopen his removal proceedings. The motion
included a request that Zheng be permitted to file a successive asylum application.
The BIA held that the second motion to reopen was untimely and number-barred, that
an alien under a final order of removal must successfully reopen before a successive
asylum application may be considered, and that Zheng failed to show changed country
conditions in China, a showing that must be made before an untimely or numberbarred
motion to reopen may be granted. “Because motions to reopen are disfavored,
1For asylum purposes, forced abortion and forced sterilization constitute
persecution on account of political opinion. See 8 U.S.C. § 1101(a)(42)(A).
our review for abuse of discretion is highly deferential.” Zine v. Mukasey, 517 F.3d
535, 542 (8th Cir. 2008). Applying this deferential standard, we deny the petition for
Zheng entered the United States without valid entry documents in August 2000
and filed a timely application for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). At the asylum hearing, he testified that he began
practicing Falun Gong in his village in Fujian Province in January 1999, that the
Chinese government banned the practice of Falun Gong in April 1999, and that he fled
China in July 2000 after others in his local group were arrested and his mother
reported that a summons to appear at the local police station had been delivered to
Zheng’s home. In support of this claim of political persecution, Zheng submitted two
documents allegedly received from his mother in China after he arrived in the United
States, a summons and an arrest warrant. The immigration judge found that Zheng’s
testimony “considered in its entirety, appears exaggerated, false, and not credible.”
In particular, the IJ found that the second document Zheng received from his mother
“appears to be so exaggerated as to not only be unreliable, but also impeaches
[Zheng’s] story.” On appeal, the BIA affirmed these credibility findings and the
denial of all relief. Zheng did not petition for judicial review of this final agency
action. Instead, he filed a motion to reopen the proceedings based solely upon his
alleged Falun Gong activities, which the BIA denied as untimely in July 2004.
Zheng filed his second motion to reopen in November 2006, seeking to file a
successive asylum application asserting for the first time that he has a well-founded
fear of forced sterilization if returned to China because of the birth of his second child
in the United States in August 2006 and an alleged increase in coercive enforcement
of China’s one-child policy.1 In support of this claim of changed country conditions,
2As Judge Posner commented in Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.
2007), “It makes no sense to allow an alien who manages to elude capture by the
immigration authorities for years after he has been ordered to leave the country, and
has exhausted all his legal remedies against removal, to use this interval of
unauthorized presence in the United States to manufacture a case for asylum.”
Zheng submitted (i) an affidavit stating that family and friends in China have told him
that “in the past year, the government has increased the use of forced abortions and
sterilization;” (ii) a purported affidavit from his mother stating that Zheng’s aunt and
another neighbor were forcibly sterilized in 2005 after the birth of second children,
that there “are many such examples in our hometown,” and that village officials told
her “they were already aware” that Zheng had two children in the United States and
“he would be requested to be sterilized” if he returned; and (iii) the U.S. State
Department’s 2005 Country Report on Human Rights Practices for China reporting
“continued . . . sporadic reports” of coercion and violation of citizen rights, and that
where a couple had two children, “one parent was often pressured to undergo
sterilization” but “enforcement varied.”
In denying the motion to reopen, the BIA first noted that the birth of Zheng’s
two children in the United States was a change in personal circumstances. Such a
change may warrant acceptance of a successive asylum application filed during the
pendency of removal proceedings under 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R.
§ 1208.4(a)(4)(i), but it is not a change in country conditions warranting the grant of
an untimely or number-barred motion to reopen under 8 U.S.C. § 1229a(c)(7)(C)(ii)
and 8 C.F.R. § 1003.2(c)(3)(ii). We subsequently upheld this interpretation of the
statutes and regulations in Wen Ying Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.
2007).2 Turning to Zheng’s showing of changed conditions or circumstances in China
since his October 2002 asylum hearing, the BIA concluded:
[T]he evidence reflects conditions substantially similar to those that existed at
the time of his hearing, with the government officially prohibiting the use of
force to compel persons to submit to abortion or sterilization, despite some
reports of coercion by local authorities, and generally attempting to enforce
compliance with the one-child policy through the use of economic incentives
and sanctions and other administrative measures. . . . The mere existence of a
policy under the local regulations of sterilization if a couple has two children
does not demonstrate that such policy would be enforced in Fujian Province by
physical coercion. This policy existed at the time of the respondent’s hearing,
and reports of some recent instances of coercion are no different from such
reports at the time of the hearing below. The respondent’s focus on reported
forced sterilizations that occurred in Shangdong Province in 2005 are not
relevant to his claim, without some evidence that Fujian Province likewise has
increased its use of such practices in violation of official policy.
On appeal, Zheng emphasizes that the BIA denied his motion to reopen without
expressly considering his mother’s affidavit presenting evidence of recent forced
sterilizations in Fujian Province. Therefore, he argues, the decision is contrary to
Yang v. Gonzales, 427 F.3d 1117 (8th Cir. 2005), and Feng Ying Zheng v. Gonzales,
415 F.3d 955 (8th Cir. 2005), cases in which we remanded asylum denials because the
BIA relied on State Department reports without fully considering the aliens’ evidence
that family members in Fujian Province were subjected to forced sterilizations or
abortions for violating the one-child policy. Zheng concludes that the BIA abused its
discretion in denying the motion to reopen and in not finding him eligible for asylum,
withholding of removal, and relief under the CAT.
Our prior decisions in Feng Ying Zheng and Yang are not controlling because
this case comes to us in a significantly different procedural posture. Feng Ying Zheng
and Yang were direct appeals from the denial of asylum. Therefore, changed country
conditions were not at issue. Rather, the issue was whether the BIA denied relief
without considering evidence directly relevant to the aliens’ claims. Here, on the
other hand, the only question is whether the record supports the BIA’s conclusion that
Zheng failed to make an adequate showing of “changed circumstances arising in
[China]” with “evidence [that] is material and was not available and could not have
been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
Zheng’s initial application did not seek asylum based upon a well-founded fear
of persecution for non-compliance with China’s one-child policy. Thus, the
administrative record contains no specific evidence of the relevant conditions in
Fujian Province before the October 2002 hearing, even though such evidence was
clearly available, Zheng married a Chinese alien in this country before that hearing,
and his wife testified at the hearing while pregnant with their first child. Regarding
conditions in Fujian Province since the October 2002 hearing, Zheng relies primarily
on his mother’s affidavit, but that evidence suffers from two distinct flaws. First, it
reported two recent forced sterilizations and asserted generally that, “In the past year,
the China’s family planning law is more strictly enforced in our hometown.” That is
not material evidence of changed circumstances when there is no evidence of local
policies and practices prior to October 2002. Compare Habchy v. Gonzales, 471 F.3d
858, 867 (8th Cir. 2006). Second, the uncorroborated affidavit came from Zheng’s
mother, who provided a purported government document at the initial hearing that the
IJ found to be “so exaggerated as to . . . be unreliable.” The BIA was not required to
credit the affidavit, particularly when it implausibly averred that local Chinese
officials “were already aware” that Zheng had two children and no “legal status” in
the United States, assertions that could have been corroborated.
Given the absence of specific evidence of changed conditions that was both
material and not available in October 2002, the BIA did not abuse its discretion in
concluding that “the evidence reflects conditions substantially similar to those that
existed at the time of [the October 2002] hearing,” a conclusion it has reached in a
series of recent decisions addressing this same issue. See Matter of S-Y-G-, 24 I&N
Dec. 247 (BIA 2007); Matter of C-C-, 23 I&N Dec. 899 (BIA 2006); see generally
Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007). Therefore, the denial of Zheng’s
untimely and number-barred motion to reopen must be upheld. Accord Wang v. BIA,
437 F.3d 270, 273-75 (2d Cir. 2006). We deny the petition for review.


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