Chen, Cheng v. Keisler, Peter D. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3189
CHENG CHEN,
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. A 70 907 793
____________
ARGUED APRIL 18, 2007—DECIDED AUGUST 23, 2007
____________
Before POSNER, COFFEY, and FLAUM, Circuit Judges.
POSNER, Circuit Judge. The question presented by this
petition to review a decision of the Board of Immigration
Appeals is whether an alien may file an application for
asylum, on the basis of a change in his personal circum-
stances, after he has been ordered removed (deported) and
after the 90-day deadline for filing a motion to reopen a
removal proceeding has expired. The Board ruled that
he cannot.
In 2001 the petitioner, a Chinese citizen, was ordered
deported to China. He did not seek judicial review of the
2 No. 06-3189
order, but neither did he leave the United States. Instead
he married an American and fathered two children by her.
In 2006 he filed a motion to be permitted to seek asylum on
the basis that if returned to China he might be forcibly
sterilized for violating China’s one-child policy. The denial
of that motion is the order he asks us to vacate. A previous
application for asylum, based on different grounds, had
been rejected in the course of his original removal pro-
ceeding.
An alien may not seek asylum who has been in the
United States for more than a year or has filed a previous
application for asylum that has been denied, 8 U.S.C.
§§ 1158(a)(2)(B), (C), but there is an exception if he can
“demonstrate[ ] to the satisfaction of the Attorney
General . . . the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum.”
§ 1158(a)(2)(D). Another statutory provision, however,
requires that a motion to reopen a removal proceeding
be filed within 90 days after the final order of removal,
§ 1229a(c)(7)(C)(i), unless the basis for the motion is
“changed country conditions arising in the country of
nationality or in the country to which removal has been
ordered.” § 1229a(c)(7)(C)(ii). If this provision governs the
present case, the petitioner is out of luck because the
changed country conditions that he alleges are not
changed conditions in China but changed conditions
resulting from his fathering two children in the United
States. That is the conduct that he claims exposes him to a
risk of involuntary sterilization should he be returned to
China.
We agree with the Board of Immigration Appeals that
this provision (section 1229a(c)(7)(C)(ii)) governs, and so
the petition for review must be denied. There is no conflict
No. 06-3189 3
with section 1158(a)(2)(D), the section that allows a be-
lated application for asylum on the basis of changed
circumstances. That section says nothing about the situa-
tion in which the applicant has already been ordered
removed, the order has become final, and the time for
reopening the removal proceeding has expired. The
distinction that section 1229a(c)(7)(C)(ii), allowing reopen-
ing after that time has expired, makes between changed
country conditions and changed personal conditions is
sensible, since the alien can manipulate the latter but not
the former, as the petitioner in this case did. 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. Wang v. BIA, 437 F.3d 270, 274 (2d Cir.
2006).
The government reminds us that the Board of Immigra-
tion Appeals’ interpretation of the statutes that it enforces
is entitled to deference. E.g., Chevron v. Natural Resources
Defense Council, 467 U.S. 837, 842-44 (1984); Ali v. Achim, 468
F.3d 462, 468 (7th Cir. 2006); Heaven v. Gonzales, 473 F.3d
167, 171 (5th Cir. 2006); Cuadra v. Gonzales, 417 F.3d 947, 950
(8th Cir. 2005). The petitioner, however, points to a pub-
lished comment by the Justice Department’s Executive
Office for Immigration Review, which is composed of the
immigration judges and the members of the Board
of Immigration Appeals, see www.usdoj.gov/eoir/
background.htm (visited Apr. 23, 2007), that supports his
position. 62 Fed. Reg. 10312, 10316 (Mar. 6, 1997). We think
the Board’s decision, a formal adjudication subsequent to
the EOIR’s comment (the legal status of which is unclear),
4 No. 06-3189
deserves precedence. But if not—if in view of the disagree-
ment between these two bodies we should give deference
to neither and instead make our own interpretation—
we reach the same conclusion as the Board.
There is, it is true, a tension between this conclusion and
language in a recent decision by the Sixth Circuit, Haddad
v. Gonzales, 437 F.3d 515, 517-18 (6th Cir. 2006), echoing
a dictum by the Second Circuit in Guan v. BIA, 345 F.3d
47, 49 (2d Cir. 2003) (per curiam), inviting an alien to
attempt what the petitioner did in this case. Haddad de-
scribes it as an “odd” result and neither case gives
any reason for the result other than that section
1158(a)(2)(D), the section that authorizes an application
for asylum on the basis of changed conditions either
country or personal, does not contain a deadline for filing
such an application. The language in Haddad, as in Guan,
is dictum; the court in Haddad upheld the Board’s denial
of the specific relief sought by the petitioner and merely
speculated that she might have an alternative route to
relief. The court did not mention section 1229a(c)(7)(C) or
the Board’s understanding of its relation to section
1158(a)(2)(D)—and added in a footnote that the alterna-
tive route might be time barred. 437 F.3d at 518 n. 7.
Indeed—and so the tension is dissolved.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-23-07