Huang, Hui Zhen v. Gonzales, Alberto , 160 F. App'x 536 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 13, 2005*
Decided December 27, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1085
HUI ZHEN HUANG, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A97-324-008
ALBERTO GONZALES,
Respondent.
ORDER
Hui Zhen Huang, a native and citizen of China (Fujian Province), petitioned
for asylum, withholding of removal, and relief under the Convention Against
Torture, claiming a fear of persecution because of her political beliefs and activities.
An Immigration Judge denied Huang’s petition and the Board of Immigration
Appeals affirmed the decision. Rather than petition for review of the Board’s
decision, Huang filed a motion to reopen, which the Board denied. Huang now
petitions for review of the Board’s latest decision.
*
On December 1, 2005, we granted Hui Zhen Huang’s motion to waive oral arguments;
therefore the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(f).
No. 05-1085 Page 2
Huang arrived from China at O’Hare International Airport without any valid
entry documents so the Department of Homeland Security (“DHS”) initiated
deportation proceedings. Huang applied for asylum, claiming that the Chinese
government twice tried to arrest her because she distributed pamphlets for the
Chinese Democratic Party (“CDP”), an opposition group. She said that if she
returned she could be arrested. After a hearing, the IJ denied her application for
asylum and ordered her removed to China. The IJ acknowledged that the Chinese
government targeted CDP activists, but nonetheless ruled that Huang failed to
corroborate her claims or otherwise explain why the corroboration was unavailable.
The Board upheld the decision.
Huang moved to reopen, claiming that she had new evidence to substantiate
her fear of prosecution. First, she introduced affidavits from her father and a friend
corroborating her contention that the government tried to arrest her because she
was a member of the CDP. Second, she introduced a letter purportedly from the
“Villagers Committee” of her home village directing her to “go to the government to
surrender, and get the lenity from the government, otherwise, we will punish you
once we captured [sic] you.”
The Board denied the motion. The Board declined to consider the two
affidavits because Huang failed to adequately explain why they were not available
earlier at the hearing before the IJ. The Board also ruled that the village
committee’s letter did not warrant reopening. First, the letter was not
authenticated under 8 C.F.R. § 287.6. Also, according to the State Department’s
asylum profile for China, “documentation from China is subject to widespread
fabrication and fraud.” Finally, Huang failed to testify or otherwise present
evidence at the hearing to show that the authorities continued to look for her, and
she did not explain why the village sent her a letter fourteen months after she left
China.
Motions to reopen are “strongly disfavored,” and we review the Board’s denial
of a motion to reopen for an abuse of discretion. Fessehaye v. Gonzales, 414 F.3d
746, 751-52 (7th Cir. 2005) (quoting Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir.
2004)). A motion to reopen should be granted only if the movant presents evidence
that was not available at the hearing before the IJ or could not have been
discovered earlier by the exercise of due diligence. 8 C.F.R. § 1003.2(c)(1);
Krougliak v. I.N.S., 289 F.3d 457,460 (7th Cir. 2002).
Huang disputes the Board’s conclusion that she could have obtained the
affidavits from her father and friend before the hearing. She argues that the Board
did not explain how she could have obtained the affidavits while in DHS custody.
But Huang, not the Board, faced the “heavy burden to reopen matters due to the
discovery of previously unavailable evidence,” Krougliak, 289 F.3d at 460. The
No. 05-1085 Page 3
record reflects that Huang was able to contact her family and attorney while she
was in DHS custody, yet she never explained why her detention prevented her or
her attorney from more promptly obtaining the affidavits.
Huang also argues that the Board abused its discretion by discounting the
significance of the village committee letter. Huang claims that the Board abused its
discretion by relying too heavily on the State Department asylum profile for China,
and cites Gramatikov v. I.N.S., 128 F.3d 619, 620 (7th Cir. 1997), for the proposition
that “[t]he advice of the State Department is not binding . . . on the courts.”
Gramatikov, however, goes on to note that State Department evaluations of the
likelihood of future prosecution are given “considerable weight,” and any alien
challenging such an evaluation “had better be able to point to a highly credible
independent source of expert knowledge” to contradict it. Id.; see Pop v. I.N.S., 279
F.3d 457, 461-62 (7th Cir. 2002). Huang has done nothing to rebut the State
Department’s profile, and the Board did not err by relying on it to support its
decision.
Huang further argues that she could authenticate the letter using procedures
other than those stated in 8 C.F.R. § 287.6, Georgis v. Ashcroft, 328 F.3d 962, 969
(7th Cir. 2003); see Kahn v. I.N.S., 237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam).
But she never took any steps to do so. In any event, the Board did not rely solely on
Huang’s failure to follow the regulation; the Board’s decision was adequately
supported on other grounds. See Woldemskel v. I.N.S., 257 F.3d 1185, 1192 n.3
(10th Cir. 2001).
AFFIRMED.