Ju Shi v. Lynch

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2200
JU SHI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Stahl, and Kayatta,
Circuit Judges.
Theodore N. Cox and Ana Lucia Alvarado on brief for
petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Terri J. Scadron, Assistant Director, and Hillel R. Smith,
Attorney, Office of Immigration Litigation, Civil Division, on
brief for respondent.
October 28, 2016
THOMPSON, Circuit Judge.
PREFACE
Ju Shi ("Shi"), a native of Fujian Province in the
People's Republic of China, asks us to review the Board of
Immigration Appeals' ("BIA") decision denying his motion to reopen
his removal proceedings. Shi claims his newly presented evidence
shows that conditions in Fujian Province have changed in the time
since his original application was denied. For the reasons
explained below, we find the BIA did not abuse its discretion in
finding otherwise, and so we deny his petition.
BACKGROUND
Shi entered the United States on November 11, 1995.
Because he did so without a valid entry document, on September 10,
2007, the Immigration and Naturalization Service charged Shi with
removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Shi applied for
asylum and withholding of removal because he fears he will be
sterilized if he returns to China. Shi has two children and claims
that forced sterilization of people with two or more children is
a common practice in Fujian Province.
Following a hearing on February 9, 2009, an Immigration
Judge denied Shi's application. According to the evidence Shi
submitted before his 2009 hearing, Chinese law limits most couples
to one child and requires pre-approval for the birth of a second.
These laws "retain harshly coercive elements in law and practice."
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Violators may face strict penalties such as termination from state
employment, steep "social compensation fees" after the birth of
unapproved children, destruction of property, and detention. In
two-child families, one parent is often pressured to undergo
sterilization. Local enforcement and local regulations
implementing the family planning laws vary, and reports indicate
that "local officials occasionally employ illegal means, such as
forcibly performing abortions or sterilizations, in order to
demonstrate their resolve to meet birth planning targets and keep
their jobs." Fujian Province officials denied performing forced
abortions and sterilizations. But, Fujian law requires
"unspecified 'remedial measures' to deal with out-of-plan
pregnancies." In 1998, a former birth planning officer admitted
that her office performed involuntary sterilizations as late as
1998, and "in 2006, reportedly, there were forced sterilizations
in Fujian."
The Immigration Judge found Shi did not show a well-
founded fear of future persecution--sterilization--based on his
political opinion--opposition to China's population control
policies. On December 15, 2011, the BIA affirmed those findings.
"Physical coercion to achieve compliance with family planning
goals is uncommon and unsanctioned by China's national laws. . .
. " "Sporadic reports of forcible abortions and sterilizations .
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. . are insufficient to establish a well-founded fear of
persecution."
On April 4, 2012, Shi moved to reopen his removal
proceedings, contending that since his hearing in 2009, his risk
of forced sterilization has dramatically increased. Shi's evidence
of changed conditions includes:
 The Congressional-Executive Commission on China's
("CECC") 2009 report that the "use of coercive measures
in the enforcement of population planning policies
remains commonplace" and violators of China's population
control policies are "in some cases, subjected to forced
sterilization, forced abortion, arbitrary detention, and
torture." Fujian Province family planning officials are
authorized to force abortions to deal with out-of-plan
pregnancies. In 2009, there were at least two reported
cases of forced abortion in Fujian.
 The 2010 CECC report that "local officials continued to
coerce women with unauthorized pregnancies to undergo
abortions." "When women reach the state-imposed limit on
number of births, local authorities often mandate
surgical sterilization to prevent 'out-of-plan'
pregnancies."
 Various news and internet reports from 2008 and 2009
that individuals were fined, jailed, saw their family
members taken hostage, or were otherwise pressured into
abortion or sterilization.
 Reports from Fujian Province from 1996, 2007, 2011, and
2012 that individuals were subject to forced abortion
and sterilization.
 Fujian Province government-issued documents from 2007,
2008, 2009, and 2010 that direct local family planning
offices to intensify family planning activities,
including sterilizations and abortions.
 Fujian Province government-issued documents from 2003
and beyond that couples with two children "must be
advocated to choose sterilization surgery." This
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includes parents whose children are born abroad. "[A]ll
parents without exception are subject to our town's
family planning goals, and will be managed by current
family planning management measures."
The BIA found Shi's evidence did not demonstrate a
material change in conditions. "[S]ocial compensation fees, loss
of job, promotion, and education opportunity [sic], expulsion from
the party, destruction of property, and other administrative
measures continue to be used to enforce the family planning policy
that has been in place since before the respondent's 2009 hearing."
Furthermore, "alleged incidents of coercion to meet birth targets
in some areas of China have been a longstanding concern, including
at the time of the respondent's 2009 hearing." "At most," Shi's
evidence showed that "pressures to enforce the family planning
polic[ies] vary [by location] and fluctuate" over time. Shi
challenges these conclusions.
LEGAL PRINCIPLES
Shi asks us to review the BIA's denial of his request to
reopen his removal proceedings. To reopen those proceedings now,
more than ninety days after the final administrative decision
denying his asylum petition, Shi must (1) show a change in
circumstances in China with "material evidence that was not
available or discoverable at the prior hearing," and (2) "present
a prima facie case of eligibility for the relief sought."
Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015) (quoting
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Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013)); see 8 U.S.C.
§ 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Shi bears the burden of
proving that conditions deteriorated between his hearing and the
filing of his motion to reopen--it is not enough for him to show
that conditions are the same, or a "slight temporal fluctuation in
the level of ever-prevailing persecution." Yang Zhao-Cheng v.
Holder, 721 F.3d 25, 28 (1st Cir. 2013); see Tawadrous v. Holder,
565 F.3d 35, 38 (1st Cir. 2009).
"The BIA has 'broad discretion . . . to grant or deny a
motion to reopen'" removal proceedings, and we review the BIA's
denial of a motion to reopen for an abuse of that discretion. Smith
v. Holder, 627 F.3d 427, 433 (1st Cir. 2010) (quoting Kucana v.
Holder, 558 U.S. 233, 250 (2010)). Under this standard, we review
legal conclusions afresh, but we review findings of fact to
determine whether or not they are supported by substantial
evidence. Id.; Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir.
2015); see 8 U.S.C. §§ 1252(b)(4), (6). Substantial evidence means
enough evidence that a rational person could accept a finding as
true, and so the BIA's findings of fact will stand unless "the
record evidence points unerringly" to a different conclusion. Xian
Tong Dong v. Holder, 696 F.3d 121, 125 (1st Cir. 2012) (quoting
Ruiz v. Mukasey, 526 F.3d 31, 35 (1st Cir. 2008)). We also review
the BIA's reasoning for "at least minimal adequacy, 'because
cursory, summary or conclusory statements [from the Board] leave
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us to presume nothing other than an abuse of discretion.'" Romer
v. Holder, 663 F.3d 40, 42 (1st Cir. 2011) (quoting Aponte v.
Holder, 610 F.3d 1, 4 (1st Cir. 2010)).
SHI'S CLAIMS
With these principles established, we turn to Shi's
arguments. Shi claims that the BIA inadequately addressed his
evidence, and that properly considered, the evidence shows
conditions in China have substantially deteriorated since his
hearing in 2009. Neither claim has merit.
First, Shi claims the BIA ignored some of his documents
from Fujian Province and summarily dismissed the 2009 and 2010
CECC reports. But, the BIA is not required to address every piece
of evidence or "dissect [every argument] in minute detail." Raza
v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007). It need only
"articulate[] its decision in terms adequate to allow a reviewing
court to conclude that the agency has thought about the evidence
and the issues and reached a reasoned conclusion." Id.; accord Li
Sheng Wu v. Holder, 737 F.3d 829, 833 (1st Cir. 2013). That is
what the BIA did here.
The BIA compared Shi's old evidence to his new evidence,
including the 2009 and 2010 CECC reports and the bulk of his
Fujian-specific documents, and found that the family planning
policy in existence before Shi's 2009 hearing continued to apply
in 2012. The BIA specifically addressed the 2009 and 2010 CECC
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reports' allegations that coercive measures have been used to meet
birth targets, and the reports' finding that this has been a
"longstanding concern." The BIA also considered Shi's Fujian-
specific population control campaign documents and concluded that
they "announce renewed efforts to enforce the family planning
policies," but do not show a significant change in enforcement
over time. The BIA fairly considered Shi's Fujian-specific
documents and the CECC reports, and the analysis is adequate for
us to understand the basis for the BIA's conclusions. See Li Sheng
Wu, 737 F.3d at 833. The BIA's assessment of the evidence was not
an abuse of discretion.1
Of course, just because the BIA adequately considered
the evidence and explained its conclusions does not necessarily
mean that those conclusions are supported by substantial evidence.
See, e.g., Xin Qiang Liu, 802 F.3d at 77. Shi's remaining argument
1
Shi relies on two out-of-circuit authorities to support his
position, but that reliance is misplaced. In Ji Cheng Ni v. Holder,
715 F.3d 620, 627 (7th Cir. 2013), and Fei Yan Zhu v. Attorney
General, 744 F.3d 268, 277 (3d Cir. 2014), the BIA essentially
ignored the 2009 and 2010 reports' allegations of forced
sterilizations and did not address the relevant question on a
motion to reopen--whether conditions changed over time. Neither
error infects the BIA's decision in this case. Indeed, other courts
considering these reports and similar evidence from Fujian
Province have determined that substantial evidence supports the
BIA's conclusion that the documents do not show changed conditions.
See, e.g., Yi Mei Zhu v. Holder, 641 F. App'x 185, 189 (3d Cir.
2016) (affirming BIA finding of no changed circumstances in Fujian
between 2006 and 2013); Ping Zheng v. Holder, 701 F.3d 237, 242-
43 (7th Cir. 2012) (finding no changed circumstances in Fujian
between 2001 and 2011).
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boils down to a complaint that they are not. Once again, we
disagree with Shi.
Substantial evidence supports the BIA's conclusion that
Shi did not show a significant increase in the use of coercion to
meet birth targets or a significant change in the enforcement of
family planning laws since his hearing. Shi presents numerous
documents from Fujian Province that encourage local family
planning offices to "step up" family planning enforcement in
temporary campaigns. But, Shi's evidence also shows that local
officials have been under pressure to enforce the family planning
policies since long before his 2009 hearing, so this pressure is
not a changed circumstance. And even though these documents
encourage stricter enforcement of existing policies, Shi presents
little evidence indicating that enforcement has actually
increased. Shi's newly presented evidence reports a handful of
forced sterilizations and abortions in Fujian Province from 1996
to 2012. The State Department's 1994 country conditions report,
and the 2007 State Department report presented to the Immigration
Judge, both found that "local officials occasionally employ
illegal means, such as forcibly performing abortions or
sterilizations," to meet birth quotas. The 2007 report likewise
reported instances of forced sterilizations in Fujian Province in
1998 and 2006. Sadly, a reasonable person can conclude from Shi's
evidence that the current rate of forced sterilization and abortion
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in service of population-control goals is a pre-existing state of
affairs.
In fact, many of the campaign documents encourage
stricter enforcement of population control policies precisely
because the existing policies were not being strictly implemented.
For instance, one campaign document reports that "illegal births
. . . after having two girls and after having one boy are on the
rise," and another reports that "[t]he materialization rate for
sterilization in families with two girls is low." Indeed, "the
idea of a targeted, temporary campaign suggests uneven enforcement
in the first instance." Ping Zheng v. Holder, 701 F.3d 237, 242
(7th Cir. 2012). The BIA's finding that "[a]t most . . . pressures
to enforce the family planning policy . . . fluctuate incrementally
from time to time" is supported by the evidence Shi presented. On
this record, the BIA did not abuse its discretion.
CONCLUSION
On a motion to reopen removal proceedings, the
petitioner bears the burden of showing both a material change in
country conditions and his prima facie eligibility for relief.
Yang Zhao-Cheng, 721 F.3d at 28; Jutus, 723 F.3d at 110. Because
we find that Shi did not meet his burden to show changed country
conditions on the first prong, we need not decide whether the
conditions described in Shi's documents show his prima facie
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eligibility for relief on the second. See Yang Zhao-Cheng, 721
F.3d at 29. Shi's petition for review is denied.
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