Xiu Qing Zheng vs U.S. Attorney General ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13155 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 23, 2011
________________________ JOHN LEY
CLERK
Agency No. A077-009-107
XIU QING ZHENG,
LI FANG,
QIANG FANG,
lllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 23, 2011)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Xiu Qing Zheng, lead petitioner, and her children Li Fang and Qiang Fang,
natives and citizens of China, seek review of the Board of Immigration Appeals’s
(“BIA”) denial of their motion to reopen proceedings based on changed country
conditions. They argue that changed country conditions in China excuse their
otherwise time- and number-barred filing. Specifically, they contend that (1)
Zheng has violated China’s family-planning laws because she has had three
children; (2) enforcement of the one-child policy has been more stringent, both
nationally and in her home province of Fujian, since her initial removal hearing in
1999; and (3) consequently, Zheng would likely be persecuted if she returned.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007) (per curiam). “Our
review is limited to determining whether the BIA exercised its discretion in an
arbitrary or capricious manner.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256
(11th Cir. 2009). Motions to reopen are especially disfavored in removal
proceedings, “where, as a general matter, every delay works to the advantage of
the deportable alien who wishes merely to remain in the United States.” I.N.S. v.
Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724–25 (1992).
An alien may file only one motion to reopen proceedings, and he or she
must do so within ninety days of a final administrative decision. 8 U.S.C.
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§ 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). But these limitations do not apply
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.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R.
§ 1003.2(c)(3)(ii).
To qualify for asylum or withholding of removal, the applicant must
establish that she has a well-founded fear that she would be persecuted if she were
removed to her home country. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1), 1231(b)(3).
Involuntary sterilization is one kind of persecution expressly recognized by the
Immigration and Nationality Act. 8 U.S.C. § 1101(a)(42). We have previously
addressed situations in which petitioners moved to reopen proceedings based on
changed country conditions, fearing sterilization upon their return to China
pursuant to the country’s one-child policy. See, e.g., Zhang v. U.S. Att’y Gen., 572
F.3d 1316, 1317–18 (11th Cir. 2009) (per curiam); Jiang, 568 F.3d at 1254; Li,
488 F.3d at 1372.
For instance, in Jiang, the petitioner argued that enforcement of China’s
family-planning laws was on the rise, particularly in her home province of Fujian.
568 F.3d at 1254. The petitioner presented testimony and affidavits reporting
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punishments of increasing severity and confirming two forcible sterilizations in
the petitioner’s hometown; a statement from the Chinese Family Planning
Committee; and congressional testimony and U.S. State Department country
reports for 2004 and 2005 noting that a 2002 version of the law was recently
implemented in her hometown. Id. at 1255. We granted the motion to reopen,
finding that officials enforced family-planning laws more stringently in the interim
between her original removal hearing and her motion to reopen, which caused
conditions in China to worsen materially for violators. Id. at 1258.
Based on our review of the record and the parties’ briefs, we grant Zheng’s
petition for review. Zheng has presented evidence—including, among other
things, affidavits from individuals who were sterilized after having children
abroad and returning to China, documents from the Chinese government, country
reports from the U.S. State Department, and reports from non-governmental
organizations and the media—indicating that, in the interim between her original
hearing in 1999 and her motion to re-open in 2008, China’s family-planning laws
have been more stringently enforced and conditions for violators of those laws
have changed. Consequently, the BIA abused its discretion in finding that
changed country conditions did not warrant granting Zheng’s motion to reopen.
PETITION GRANTED.
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