Ping Zheng v. Eric H. Holder, Jr. , 701 F.3d 237 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1698
P ING Z HENG,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A078-746-413
A RGUED O CTOBER 22, 2012—D ECIDED N OVEMBER 27, 2012
Before B AUER and R OVNER, Circuit Judges, and R ANDA,
District Judge. Œ
R ANDA, District Judge. After entering this country ille-
gally in 2001, Ping Zheng (“Zheng”) was found removable
by an immigration judge (“IJ”) in 2004. The Board of
Œ
The Honorable Rudolph T. Randa, United States Court for
the Eastern District of Wisconsin, sitting by designation.
2 No. 12-1698
Immigration Appeals (the “Board”) affirmed, and this
court denied Zheng’s petition for review. Zheng v.
Gonzales, 189 F. App’x 564 (7th Cir. 2006). Now before
the court is Zheng’s petition for review of the Board’s
decision denying her motion to reopen. For the reasons
that follow, Zheng’s petition is denied.
I.
Zheng was born on February 15, 1984 in Ma Wei
District, Fujian Province, in the People’s Republic of
China. She arrived in the United States on July 27, 2001
through the United States Virgin Islands. The former
Immigration and Naturalization Service issued Zheng a
Notice to Appear. After two changes of venue, Zheng
eventually appeared before an IJ in Chicago. Zheng filed
applications for political asylum, withholding of removal,
and protection under the Convention Against Torture,
claiming persecution because of her practice of Falun
Gong. On June 1, 2004, the IJ rejected Zheng’s applications
because her testimony was “rather inconsistent and
almost completely unsubstantiated.” Transcript of the
Oral Decision of the IJ at 6. The Board affirmed without
opinion. On petition for review, this court found that
the IJ’s adverse credibility finding lacked adequate sup-
port, but denied the petition because Zheng failed to
prove that she was persecuted while in China, or that she
established a reasonable possibility of future persecu-
tion. Zheng, 189 F. App’x at 567-68.
Thereafter, Zheng remained in the United States. On
September 8, 2010, Zheng married Dianle Jiang, with
No. 12-1698 3
whom she has two children: Justin, born August 2, 2007,
and Bryan, born April 9, 2011. On September 8, 2011,
Zheng filed a motion to reopen proceedings with the
Board. Zheng argued that her case should be reopened
due to the birth of her two children and increased en-
forcement of China’s family planning policy. The Depart-
ment of Homeland Security opposed Zheng’s motion,
arguing that it was untimely and based on changed
personal circumstances rather than a change in country
conditions. On February 29, 2012, the Board denied
Zheng’s motion because her evidence was “not suf-
ficient to establish a change in circumstances or country
conditions ‘arising in the country of nationality’ so as
to create an exception to the time and number limita-
tions for filing a late motion to reopen to apply for asy-
lum.” Board Decision at 4. Zheng filed a timely petition
for review.
II.
A motion to reopen removal proceedings must be
filed within 90 days of the entry of a final administrative
order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). Zheng’s
motion was filed more than six years after the expiration
of this time frame. However, there is no time limit if
the motion to reopen is based on changed country condi-
tions arising in the country of nationality or the country
to which removal has been ordered, if such evidence
is material and was not available and could not have
been discovered or presented at the previous hearing.
§ 1229a(c)(7)(C)(ii). The purpose behind limiting this
4 No. 12-1698
exception to changed country conditions, as opposed to
changed personal conditions, is to promote finality
in the immigration context. Otherwise, an alien who
manages to avoid removal could “use this interval of
unauthorized presence in the United States to manu-
facture a case for asylum.” Cheng Chen v. Gonzales, 498
F.3d 758, 760 (7th Cir. 2007). The Supreme Court has
repeatedly acknowledged the importance of finality
in immigration proceedings. See I.N.S. v. Doherty, 502
U.S. 314, 323 (1992) (“[m]otions for reopening of immigra-
tion proceedings are disfavored” because “as a general
matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the
United States”); I.N.S. v. Abudu, 485 U.S. 94, 107-08 (1988)
(recognizing that a generous view towards motions to
reopen would “permit endless delay of deportation by
aliens creative and fertile enough to continuously
produce new and material facts”).
In this light, it should be clear that Zheng’s marriage
and the birth of her two children, standing alone, is
insufficient to warrant reopening. Such an argument
has been “vetted in this court and rejected.” Jiang v.
Holder, 639 F.3d 751, 756 (7th Cir. 2011); see also Cheng
Chen, 498 F.3d at 760; Joseph v. Holder, 579 F.3d 827, 834
(7th Cir. 2009); Liang v. Holder, 626 F.3d 983, 988 (7th Cir.
2010). Our task is therefore limited to analyzing the
Board’s finding that Zheng did not present evidence of
a change in country conditions sufficient to warrant
reopening of removal proceedings. This decision can be
upset only if the Board abused its discretion. Pelinkovic v.
Ashcroft, 366 F.3d 532, 536 (7th Cir. 2004). Under this
No. 12-1698 5
standard, the court will uphold the Board’s decision to
deny Zheng’s motion to reopen “unless it was made
without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible
basis such as invidious discrimination against a par-
ticular group or race.” Mansour v. I.N.S., 230 F.3d 902,
907 (7th Cir. 2000).
III.
The focus of Zheng’s motion is China’s “one-child”
family planning policy. Zheng argues that she will be
subject to forced sterilization and severe fines if
she returns to China, even though her two children are
foreign-born. An immigrant who has a well-founded
fear that he or she will be forced to undergo involuntary
sterilization, or will be subject to persecution for failure
to undergo such a procedure or for resistance to a
coercive population program, meets the definition of
a “refugee” and may be eligible for asylum. 8 U.S.C.
§ 1101(a)(42).
In rejecting Zheng’s motion to reopen, the Board cited
to the State Department’s 2007 Country Profile. This
document provides that “U.S. officials in China are not
aware of the alleged official policy, at the national or
provincial levels, mandating the sterilization of one
partner of couples that have given birth to two children,
at least one of whom was born abroad.” Bureau of Democ-
racy, Human Rights and Labor, U.S. Dep’t of State, China:
Profile of Asylum Claims and Country Conditions 29
(May 2007).
6 No. 12-1698
According to the State Department, central govern-
ment policy prohibits the use of physical coercion
to compel persons to submit to abortion or steriliza-
tion. Although acknowledging that there were “re-
portedly” forced sterilizations in Fujian in 2006, the
State Department observes that Consulate General
officials visiting Fujian have found that coercion
through public and other pressure has been used,
but they did not find any cases of physical force
employed in connection with abortion or sterilization.
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 (BIA
2010) (citing 2007 Profile at 24, 26).
Zheng tried to undermine the conclusions of the 2007
Profile by offering the expert opinion of Dr. Flora Sapio.
According to Dr. Sapio, the 2007 Profile is “seriously
deficient” in its methodology. (Administrative Record
(“A.R.”) 154). “The lack of transparency in the methods
used to research the 2007 Report puts to question
the reliability of information therein contained. The
existence of omissions undermines its credibility and
usefulness.” Id. Moreover, Dr. Sapio cites sources from
Congress and the U.S. Department of State which
confirm that the “practice of forced abortion and steriliza-
tion still takes place.” (A.R. 174). Contrary to Zheng’s
argument in her petition for review, the Board did not
reject this evidence out of hand, nor did it question the
expert credentials of Dr. Sapio. Rather, the Board simply
found that “Dr. Sapio’s critique of the 2007 State Depart-
ment Profile on China does not persuade us that the
Profile is unreliable.” Board Decision at 3. Dr. Sapio herself
No. 12-1698 7
admits that she “does not purport to provide conclusive
answers to specific human rights issues, or to address the
claims raised by individual asylum seekers.” (A.R. 155).
She even concedes that there is “no univocal consensus
on whether forced abortions and sterilizations are still
used to implement the family planning policy. Widely
different opinions exist. All of them rest on the avail-
able evidence, which is neither conclusive nor compre-
hensive.” (A.R. 168). Accordingly, the Board did not
abuse its discretion in adhering to the conclusions in
the 2007 Profile. State Department reports are not
“Holy Writ,” Galina v. I.N.S., 213 F.3d 955, 959 (7th Cir.
2000), but they are still “entitled to deference.” Zheng v.
Gonzales, 409 F.3d 804, 811 (7th Cir. 2005). “State Depart-
ment reports on country conditions . . . are highly proba-
tive evidence and are usually the best source of infor-
mation on conditions in foreign nations. The reports
are accorded ‘special weight,’ because they are based
on the collective expertise and experience of the Depart-
ment of State, which ‘has diplomatic and consular repre-
sentatives throughout the world.’ ” Matter of H-L-H-,
25 I. & N. Dec. at 213 (internal citations omitted).
Aside from the opinion and report of Dr . Sapio, Zheng
also provided portions of the 2009 and 2010 Annual
Reports of the Congressional-Executive Commission
on China (“CECC”), a body created by Congress with
the legislative mandate to monitor human rights and the
development of law in China. The CECC’s 2009 Report
states that “[l]ocal governments have in some cases
stepped up efforts to impose penalties and fines against
couples who give birth to an unauthorized child,” finding
8 No. 12-1698
that local officials in Fujian Province “issued a circular
ordering officials to seek court authorization to carry
out ‘coercive measures’ when family planning violators
fail to pay fines.” (A.R. 136-37). In February 2009, “officials
in Anxi county, Fujian Province, initiated a five-week
campaign of ‘concentrated service activities’ that desig-
nated the ‘implementation of abortion remedial mea-
sures’ among its five ‘primary tasks.’ ” (A.R. 139).
And in June 2009, “the Wuyishian county government
in Fujian published village family planning regulations
that stipulate the following: ‘In emergency situations
when pregnancies violate family planning policies,
report the matter to the village committee and
promptly carry out remedial measures (abortion).’ ”
(A.R. 140). Similarly, the 2010 Report indicates that
“authorities across a wide range of Chinese localities
launched population planning enforcement campaigns—
often dubbed ‘spring family planning service activi-
ties’—that employed coercive measures to terminate
‘out of plan’ pregnancies.” (A.R. 120).
This evidence is insufficient to demonstrate a change
in country conditions. The “one-child policy” is more
than thirty years old, so Zheng cannot prevail without
showing that “China’s enforcement of the policy had
become more stringent in her province since her last
hearing.” Liang, 626 F.3d at 989. Zheng cites reports
from prior to her hearing which characterized enforce-
ment efforts in Fujian Province as “lax” or “uneven.”
Matter of J-W-S-, 24 I. & N. Dec. 185, 193 (BIA 2007)
(citing Bureau of Democracy, Human Rights and Labor,
U.S. Dep’t of State, China: Profile of Asylum Claims and
No. 12-1698 9
Country Conditions 20, 25 (Apr. 14, 1998)). The initiation
of family planning campaigns in Fujian Province is not
inconsistent with the concept of “uneven” enforcement.
If anything, the idea of a targeted, temporary cam-
paign suggests uneven enforcement in the first in-
stance. As the Board has explained, a “new report or a
new law is not evidence of changed conditions without
convincing evidence that the prior version of the law
was different, or was differently enforced, in some relevant
and material way.” Matter of S-Y-G-, 24 I. & N. Dec. 247,
257 (BIA 2007) (emphasis added). Zheng failed to demon-
strate that the policy is enforced differently now than
when the petitioner was ordered removed. Lin v. Mukasey,
532 F.3d 596, 596 (7th Cir. 2008). Therefore, the Board
rightly concluded that Zheng’s petition was based on
a change in personal circumstances, not a change in
country conditions.
Aside from the issue of changed country conditions,
the Board also found that Zheng’s evidence was “not
sufficient to demonstrate that [Zheng] will be subjected
to sterilization.” Board Decision at 3. In other words,
even assuming that Zheng’s evidence demonstrated a
change in country conditions from the time of her initial
hearing, Zheng failed to show a “reasonable likelihood”
that she would be eligible for asylum if proceedings
were reopened. Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir.
2004). “The Board is required to evaluate whether
the alleged changed circumstances are ‘material’ to an
applicant’s request for asylum. This in turn invites the
Board to determine whether these changes provide
the applicant with a well-founded fear of persecution.”
10 No. 12-1698
Moosa v. Holder, 644 F.3d 380, 385 (7th Cir. 2011). The
Board did not abuse its discretion in arriving at
this conclusion.
The Board found that Zheng did not show that the
documents and regulations she provided from places
other than Zheng’s home village (Xi Bian Village), town
(Ting Jian Town) and city (Fuzhou City) applied to her.
Board Decision at 3. Zheng argues that this is unfair
because the State Department Profile also lacks informa-
tion that is specific to Zheng’s home village. However,
the “shortcomings of State Department reports” are
considered “ ‘especially germane’ in situations in which
the burden of persuasion has shifted to the govern-
ment.” Lin v. Holder, 620 F.3d 807, 811 (7th Cir. 2010)
(quoting Galina v. I.N.S., 213 F.3d 955, 959 (7th Cir.
2010). In Zheng’s case, the burden never shifted to the
government. Instead, it was Zheng’s burden to
establish either “past persecution” or that her “subjec-
tive fears of sterilization were objectively reasonable.”
Id. Therefore, it was not an abuse of discretion for the
Board to fall back on the information in the State De-
partment Profile when denying Zheng’s petition, and
the Board properly discredited Zheng’s generalized
evidence to the contrary. Chen v. Gonzales, 489 F.3d 861,
862 (7th Cir. 2007) (“affidavits relating personal experi-
ences or tales about sterilizations in Fujian would not
establish that a person in [petitioner’s] position faces a
material risk that this would happen to her. To deter-
mine whether an alien faces persecution in a foreign
land, the agency must separate normal from exceptional
events”).
No. 12-1698 11
IV.
Because we find that the Board’s denial of Zheng’s
motion to reopen was not an abuse of discretion, the
petition for review is D ENIED.
11-27-12