Zhao, Bin v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2398
BIN ZHAO,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A77-340-381
____________
SUBMITTED DECEMBER 6, 2005Œ—DECIDED DECEMBER 13, 2005
PUBLISHED MARCH 8, 2006ŒŒ
____________
Before BAUER, COFFEY, and EVANS, Circuit Judges.
PER CURIAM. Chinese citizen Bin Zhao wants to re-
open his application for asylum, which was based on a
fear that he will be persecuted by Chinese police for
Œ
On November 30, 2005, we granted Zhao’s motion to waive
oral argument. This appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(f); Cir. R. 34(e).
ŒŒ
This opinion was originally issued as an unpublished order on
December 13, 2005. Upon request, the panel has determined that
this decision should now issue as a published opinion.
2 No. 05-2398
attending a Falun Gong rally in 1999. Because he waited
two years after the BIA denied his claim to file his motion
to reopen, the BIA denied it as untimely. Even though his
motion was filed past the deadline, Zhao maintains that
he satisfied a statutory exception to that deadline by
presenting evidence of changed circumstances in China—
specifically, an affidavit by his girlfriend (he says wife)
stating that Zhao’s parents in China “recently” said that
police are looking for him because he attended the rally.
Because evidence that police are still looking for Zhao is not
changed circumstances, the BIA did not abuse its discre-
tion. We deny Zhao’s petition for review.
Zhao is a twenty-four-year-old citizen of the People’s
Republic of China (from Fujian Province) who came to
the United States in early 2001. He applied for asylum
based on his parents’ affiliation with Falun Gong. Before an
IJ, he testified that he personally knew nothing about
Falun Gong but attended a rally of two or three hundred
Falun Gong members in Fuzhou during 1999. The police
broke up the rally, he said, so he and his parents ran away.
His parents ran home, but he fled to his uncle’s house,
where he stayed for seven or eight months until coming to
the United States. His parents, with whom he stayed in
contact, were never troubled further by police but, a week
before his hearing, they told Zhao on the phone that police
were still looking for him. The IJ decided that Zhao was
lying and denied relief. The BIA summarily affirmed in
January 2003. Zhao never sought review.
In February 2005, Zhao moved to reopen his case. He
conceded that his motion did not meet the agency’s deadline
of 90 days after the final decision, but he argued that he
had evidence of “changed circumstances” in the “country of
nationality” that exempted his motion from the deadline.
He did not present his own affidavit and an application for
asylum or other relief as he was supposed to, but he did
submit an affidavit by a woman he calls his “common-law
No. 05-2398 3
wife.” Her affidavit says that his parents “recently” told him
that the police were still looking for Zhao. It also says that
she and Zhao are about to have a second child, which will
subject them to persecution under China’s one-child policy.
Apparently, he believed that terming her his “common-law
wife” would strengthen his own claim for asylum based on
the birth of children in the United States.
The BIA denied Zhao’s motion as untimely, reasoning
that he “failed to show that changed circumstances exist” to
warrant an exception from the 90-day deadline. Although
the BIA’s order does not explicitly mention the girlfriend’s
affidavit, it acknowledges Zhao’s allegation that his parents
told him by telephone that police are once again looking for
him for his participation in the 1999 rally. The BIA declined
to reopen for the same reasons it denied his original claim.
In a footnote, the Board criticized Zhao’s failure to include
his application or supporting affidavit as regulations
require, see 8 C.F.R. § 1003.2(c)(1). The BIA also decided
that birth of children in the United States is merely a
change in personal circumstances, not a change in country
conditions in China to warrant the exception. In any event,
the BIA explained that Zhao had not shown that he was
legally married to his “common-law wife” and thus he could
not avail himself of asylum on account of China’s family
planning policy.
In his petition, Zhao does not dispute that his motion
to reopen was filed after expiration of the 90-day dead-
line, see 8 U.S.C. § 1229a(c)(7)(C)(i) (formerly § 1229a(c)(6)
(C)(i)); 8 C.F.R. § 1003.2(c)(2), but he argues that the
BIA erred in determining that he did not meet the statutory
exception for changed circumstances in China, see 8 U.S.C.
§ 1229a(c)(7)(C)(ii) (formerly § 1229a(c)(6)(C)(ii)); 8 C.F.R.
§ 1003.2(c)(3)(ii). He explains that the BIA must have
overlooked his evidence because its order did not mention
his so-called wife’s affidavit—which says that Zhao’s
parents “recently” told the couple that there is a new
4 No. 05-2398
“crackdown” and the police are again looking for him
because of the 1999 rally—and the order criticized him for
failing to produce supporting affidavits.
A motion to reopen based on changed conditions in the
country of nationality or removal is exempt from the 90-day
deadline, so long as the evidence is material and could not
have been adduced at the proceeding to be reopened. 8
U.S.C. § 1229a(c)(7)(C)(ii) (formerly § 1229a(c)(6)(C)(ii)); 8
C.F.R. § 1003.2(c)(3)(ii); see Simtion v. Ashcroft, 393 F.3d
733, 736-37 (7th Cir. 2004). Even so, cumulative evidence
that conditions asserted in the original application “per-
sisted” is not evidence of changed circumstances, Betouche
v. Ashcroft, 357 F.3d 147, 152 (1st Cir. 2004). Without a
material change, an applicant cannot relitigate his claim.
Betouche, 357 F.3d at 152; In re J-J-, 21 I. & N. Dec. 976,
980-82 (BIA 1997); see Simtion, 393 F.3d at 737; Dandan v.
Ashcroft, 339 F.3d 567, 576 (7th Cir. 2003). Any other
holding would draw out the proceedings forever. See
Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (citing
INS v. Wang, 450 U.S. 139, 143 n.5 (1981) (per curiam)).
The BIA correctly concluded that Zhao’s allegation that
police were still looking for him did not constitute
changed circumstances. At best this new “evidence” is
cumulative and merely an assertion that the same condi-
tions “persisted,” see Betouche, 357 F.3d at 152. Although
Zhao hints that the Chinese government has intensified
its persecution of the Falun Gong, the affidavit does not
support that implication. All Zhao can say is that “some-
thing indeed has changed” (emphasis in original); he cannot
even say what. There is no evidence of a material change,
so even if the BIA did overlook the affidavit, the oversight
could not possibly matter. The BIA did not abuse its
discretion in rejecting this untimely motion.
Last, although Zhao no longer seeks relief based on the
birth of his children in the United States, such evidence
No. 05-2398 5
cannot justify the relevant statutory exception. The
statute applies only when there are changed conditions
“arising in the country of nationality or the country to
which removal has been ordered,” 8 U.S.C. § 1229a(c)(7)
(C)(ii) (formerly § 1229a(c)(6)(C)(ii)). By contrast, the
birth of Zhao’s children is merely a change in “personal
circumstances” in this country. See Zheng v. U.S. Dep’t of
Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (per curiam);
Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003) (per curiam).
The petition is
DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-8-06