Wen-Xing Wang v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13766 ELEVENTH CIRCUIT
MAY 13, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A070-704-012
WEN-XING WANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 13, 2010)
Before EDMONDSON, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Wen-Xing Wang, a citizen of China, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)
denial of his motion to reopen his removal proceedings. Wang’s April 25, 2008
motion to reopen was based on his claim that country conditions in China have
changed since the BIA’s August 31, 2006 removal order because China has
increased enforcement of its family-planning sterilization policies. Because Wang
has two children, he contends that he would be subject to forced sterilization if he
returned to China. After review, we deny Wang’s petition.1
An alien may file one motion to reopen removal proceedings, and that
motion must “state the new facts that will be proven at a hearing to be held if the
motion is granted, and shall be supported by affidavits or other evidentiary
material.” Immigration and Nationality Act (“INA”) § 240B(c)(7)(A), (B), 8
U.S.C. § 1229a(c)(7)(A), (B). Generally, the motion to reopen must be filed within
ninety days of the BIA’s final administrative removal order. INA
§ 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However,
the ninety-day deadline and one-motion limit do not apply if the motion to reopen
is based on changed country conditions. INA § 240(c)(7)(C)(ii), 8 U.S.C.
1
We review the denial of a motion to reopen for abuse of discretion. Abdi v. U.S. Att’y
Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Review is “limited to determining whether there
has been an exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Id. (quotation marks omitted). Where, as here, the BIA expressly
adopted the IJ’s reasons for the ruling, we review the IJ’s and the BIA’s decisions. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
2
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
Because motions to reopen are disfavored, especially in removal
proceedings, the movant bears a “heavy burden.” Zhang v. U.S. Att’y Gen., 572
F.3d 1316, 1319 (11th Cir. 2009). To meet the exception to the ninety-day filing
deadline, the movant must show that there is new evidence that is material and was
not available and could not have been discovered or presented at the removal
hearing. See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); see also Verano-Velasco v.
U.S. Att’y Gen., 456 F.3d 1372, 1376 (11th Cir. 2006); Abdi, 430 F.3d at 1149.
Evidence is not “new” if it was available and could have been presented at the
aliens former hearing. Verano-Velasco, 456 F.3d at 1372. To be “material,” the
evidence must be the kind that, if the proceedings were reopened, would likely
change the result in the case. See Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th
Cir. 2006). Thus, the BIA may deny a motion to reopen because the alien failed to
submit evidence that was material and previously unavailable. See Al Najjar, 257
F.3d at 1302.
We have concluded that evidence of a recent increased campaign of forced
sterilization in the alien’s home village may satisfy the changed country conditions
requirement for filing a motion to reopen outside the ninety-day filing deadline.
See, e.g. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1254 (11th Cir. 2009); Li v. U.S.
Att’y Gen., 488 F.3d 1371, 1375 (11th Cir. 2007). On the other hand, the birth of a
3
child constitutes a change in personal circumstances, not a change in country
conditions, and does not satisfy the requirement. See 8 C.F.R. § 1003.23(b)(4)(i)
(requiring motions to reopen after the ninety-day deadline to be “based on changed
country conditions arising in the country of nationality”).
Here, the IJ and the BIA did not abuse their discretion in denying Wang’s
motion to reopen because Wang’s evidence either was previously available or did
not demonstrate an increased campaign of forced sterilization in his home village.
Wang does not dispute that his motion was filed outside the ninety-day filing
deadline and that he needed to present evidence of changed country conditions
post-dating his 2006 removal proceedings in order for his motion to be granted.2
A review of the record shows that, unlike the petitioners in Li and Jiang,
cited above, Wang’s evidence did not demonstrate that enforcement of the one-
child policy through forced sterilizations has increased in his home village of Fuqi
Village, Houyu Town, Changle City in Fujian Province since the August 31, 2006
order granting him voluntary departure.3 A number of Wang’s documents pre-
dated his original asylum claim or referenced information that predated his asylum
2
In 2003, Wang filed his asylum application, alleging religious persecution. Wang later
withdrew his application with prejudice, was granted voluntary departure on August 31, 2006
and was ordered to depart the country by December 29, 2006. Wang did not depart and filed this
motion to reopen on April 25, 2008. Thus, Wang’s evidence in support of his motion to reopen
must show a change in conditions in China since the BIA’s August 31, 2006 order.
3
Contrary to Wang’s assertion, the BIA considered each piece of evidence Wang
submitted and concluded that his evidence was insufficient to meet Wang’s burden of proof.
4
application. This evidence was not “previously unavailable” and did not aid his
current motion to reopen. Other documents either: (1) detailed enforcement of
China’s family planning laws in other provinces, but did not address the
enforcement of the family planning laws in Wang’s home province of Fujian; or
(2) failed to state any change in the enforcement of the family planning laws from
previous years. In sum, while most of Wang’s evidence shows that Chinese
officials continue to enforce family planning policies, including some forced
sterilizations, it does not show an escalation of enforcement in Wang’s home
village.
Wang submitted several documents that relate specifically to family
planning policies in Fujian Province or in Wang’s home village. However, most of
these documents did not demonstrate a material change in enforcement. For
example, one document, a proclamation to individual district and city planning
committees, was a reminder to implement the goals and practices of the policies.
As the BIA explained, nothing in the proclamation indicates that implementation of
the goals and practices was a change in policy. Another document was a March
2008 notice from the “Villagers’ Committee” in Wang’s home village responding
to Wang’s inquiry. The notice stated that, under the family planning policy, Wang
would be required to undergo sterilization upon his return because he has two
children. Although the BIA gave little weight to this document because it was
5
unauthenticated, it also noted that the document failed to indicate that this
enforcement of the family planning policy post-dated Wang’s removal
proceedings. In other words, the notice does not indicate that the policy is being
more strictly enforced since August 31, 2006.4
Wang also submitted two documents that do suggest an increase in
enforcement of the family planning policies. First, Wang submitted a March 2007
article from a newspaper in a different county and town in Fujian. The article
explains that 2007 is the “year of the ‘golden pig’,” which the Chinese view as an
auspicious year to have a child. According to the article, provinces, including
Fujian, were tightening their family planning policies in anticipation of a baby
boom. The article noted that “several towns openly force the over-birth pregnant
women to undergo abortion and sterilizations” and women with two daughters are
also subjected to sterilization. The BIA found that this stricter enforcement was
limited to the year 2007 and “not a permanent change to the population control
policies of the region.” Given the entire context of the article, this finding is not
arbitrary or capricious.
Second, Wang submitted a March 2008 affidavit from his mother stating that
4
Citing opinions from other circuits, Wang argues that the BIA could not reject this
document solely because it was unauthenticated. See, e.g., Zheng v. Gonzales, 500 F.3d 143 (2d
Cir. 2007). Even assuming arguendo that Wang is correct, the BIA did not rely solely upon the
lack of authentication.
6
“[i]n the past year, the Family Planning Law was more strictly implemented in our
hometown” and stated that one woman was forced to undergo a sterilization
operation on March 10, 2007. The BIA found that this affidavit was
unsubstantiated and based on anecdotal evidence. The affidavit, while making a
general assertion that the family planning policy was being more strictly enforced,
provided only one example and offered no additional support or corroboration for
this opinion.5 We cannot say the BIA’s decision to discount the affidavit was
arbitrary or capricious.6
Because Wang failed to provide material, previously unavailable evidence of
changed country conditions since August 31, 2006, the BIA did not abuse its
discretion in denying his motion to reopen.7
5
We do not read the BIA’s rationale for discounting the affidavit as a credibility
determination. Rather, as we read the BIA’s ruling, the BIA gave the affidavit little weight
because it averred a conclusory statement without offering sufficient support for it. As a general
principle, it is well-settled that conclusory, unsupported allegations in an affidavit are not
sufficiently probative to establish a fact. See, e.g., Leigh v. Warner Bros., Inc., 212 F.3d 1210,
1217 (11th Cir. 2000); Lynn v. United States, 365 F.3d 1225, 1238-39 (11th Cir. 2004). Given
the problems with the rest of Wang’s documentary evidence, we cannot say the BIA abused its
discretion when it concluded that this one affidavit was insufficient to carry Wang’s heavy
burden to show an escalation in forced sterilizations in his home village.
6
The BIA properly concluded that the birth of Wang’s second child did not provide a
basis for granting his motion to reopen, as this constituted a change in personal circumstances
not country conditions. See 8 C.F.R. § 1003.23(b)(4)(i).
7
To the extent Wang argues that he is prima facie eligible for asylum and withholding of
removal, we do not consider these claims because Wang failed to meet the requirements for
granting his motion to reopen. See Chen v. U.S. Att’y Gen., 565 F.3d 805, 810 (11th Cir. 2005)
(concluding that an alien cannot file a successive asylum application except as part of a properly
filed motion to reopen).
7
PETITION DENIED.
8