Zheng, Xiu Qin v. Mukasey, Michael B. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3673
XIU QIN ZHENG,
Petitioner,
v.
MICHAEL B. MUKASEY,
Attorney General of the
United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-847-340
____________
ON MOTION FOR STAY OF REMOVAL
____________
NOVEMBER 9, 2007Œ
____________
Before COFFEY, RIPPLE and WILLIAMS, Circuit Judges.
PER CURIAM. The petitioner, Xiu Qin Zheng, seeks a
stay of his removal to China pending review in this court.
In 2001, Mr. Zheng applied for asylum before an immigra-
tion judge (“IJ”). The IJ found significant inconsistencies
Œ
This opinion was released initially in typescript form.
2 No. 07-3673
in Mr. Zheng’s testimony and therefore discredited his
testimony and denied his asylum application. In May 2002,
the Board of Immigration Appeals (“BIA”) dismissed
Mr. Zheng’s appeal of the IJ’s decision. The present motion
does not articulate the grounds upon which Mr. Zheng
originally applied for asylum and does not address what
inconsistencies the IJ found in his testimony.
Five years later, Mr. Zheng moved to reopen his asylum
proceedings. First, he submitted that he had received
ineffective assistance from his former attorney who had
represented him before the IJ and the BIA. The BIA
rejected this argument; it noted that his request was
untimely and that he provided no reason to invoke the
doctrine of equitable tolling. Second, Mr. Zheng sought
to reopen his asylum proceedings based on changed cir-
cumstances. He maintained that authorities in his home-
town recently had carried out harsh investigations of
underground Catholic churches and had arrested his
wife in 2006. At that time, he alleges, she was pressured
to reveal his whereabouts; in addition, she was given a
notice stating that Mr. Zheng would be punished upon
his return to China because he had joined an underground
church. The BIA also refused to reopen Mr. Zheng’s
proceedings based on this ground. It noted that the IJ
already had found incredible his testimony about re-
ligious persecution and persecution based on China’s
family planning policies. Finally, the BIA concluded that
Mr. Zheng had failed to demonstrate that he would be
harmed upon his return to China due to his violation of
Chinese exit laws.
Mr. Zheng now petitions for review of both the BIA’s
dismissal of his original asylum claim and the BIA’s
subsequent denial of his motion to reopen those proceed-
ings.
No. 07-3673 3
As an initial matter, we note that the petition for re-
view is timely only as to the BIA’s denial of Mr. Zheng’s
motion to reopen. This petition for review was filed over
five years after the BIA dismissed the appeal stemming
from Mr. Zheng’s original asylum application, well-beyond
the 30-day deadline to file a petition for review. See 8
U.S.C. § 1252(b)(1); Asere v. Gonzales, 439 F.3d 378, 380 (7th
Cir. 2006).
A petitioner seeking a stay of removal pending judicial
review must demonstrate: (1) a likelihood of success on
the merits; (2) irreparable harm if a stay is not granted;
(3) that the potential harm the petitioner faces outweighs
the harm to the Government; and (4) that granting the
stay would serve the public interest. Sofinet v. INS, 188
F.3d 703, 706 (7th Cir. 1999). If a motion to stay removal
does not set forth information needed for this court to
adjudicate properly the matter, it will be denied. See
Koutcher v. Gonzales, 494 F.3d 1133, 1134 (7th Cir. 2007).
Given these requirements, we must deny this motion. In
these papers, the petitioner simply makes an inadequate
case. The motion, which is only one sentence long with an
attached two-page affidavit from counsel, provides insuf-
ficient information for this court to adjudicate the matter.
The motion fails to state why Mr. Zheng believes that his
former attorney was ineffective or the resulting prejudice
that he suffered. It also makes no mention of what circum-
stances have changed in China or how these changes
might affect a second asylum application. The motion
merely contends that Mr. Zheng is likely to succeed on
the merits “due to egregious errors of Law and Fact” made
by the IJ and BIA, but fails to articulate what these errors
may be or during what stage of the proceedings these
errors occurred. Without this information, we cannot
4 No. 07-3673
assess the likelihood that Mr. Zheng could succeed in
demonstrating that the BIA erred by refusing to reopen
his proceedings. See Koutcher, 494 F.3d at 1135.
MOTION DENIED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-19-07