Zheng, Xiu Qin v. Mukasey, Michael B. , 507 F.3d 1074 ( 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, 2007*
__________
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.
*
This opinion is being released initially in typescript form.
No. 07-3673 Page 2
Zheng applied for asylum before an immigration judge (“IJ”). The
IJ found significant inconsistencies 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 circumstances. He
maintained that authorities in his hometown 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
religious 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 proceedings.
As an initial matter, we note that the petition for review 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
No. 07-3673 Page 3
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 insufficient 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 circumstances 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 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