Guo Ju Huang, Guang Zhen Huang vs 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[DO NOT PUBLISH]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. 10-14746 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 31, 2011
________________________ JOHN LEY
CLERK
Agency No. A073-552-793
GUO JU HUANG,
GUANG ZHEN HUANG,
llllllllllllllllllllllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
l lllllllllllllllllllllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 31, 2011)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Guo Ju Huang and Guang Zhen Huang, natives and citizens of China, petition
for review of the Board of Immigration Appeals’ (BIA) denial of their motion to
reopen their case for asylum, withholding of removal and relief under the United
Nations Convention Against Torture (“CAT”), pursuant to 8 C.F.R. § 1003.2(c). In
2007, the BIA upheld the order of an Immigration Judge (“IJ”) removing the Huangs,
a married couple, to China after finding that they did not credibly show that they
would be subject to persecution under China’s family planning policy. In 2010, the
Huangs moved the BIA to reopen their case on the same grounds as alleged in their
original application, but supported by more recent evidence. The BIA, finding that
the Huangs’ evidence did not demonstrate changed country conditions sufficient to
excuse the untimeliness of their motion, denied it as time-barred. On appeal, the
Huangs argue that: (1) the BIA abused its discretion in denying their motion to reopen
by improperly discounting or ignoring evidence that demonstrated that, since their
initial proceedings, China has heightened enforcement of its family planning policy
in their home province; and (2) the evidence was sufficient to set forth a prima facie
case for asylum, withholding of removal, and CAT relief because it tended to show
that they had a well-founded fear of forced sterilization if they returned to China.
After thorough review, we deny the petition.
2
We review the denial of a motion to reopen removal proceedings for abuse of
discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). The
moving party bears a “heavy burden,” and judicial review “is limited to determining
whether the BIA exercised its discretion in an arbitrary or capricious manner.” Id.Motions to reopen are especially disfavored in removal proceedings, “where, as a
general matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808
(11th Cir. 2006) (quotation omitted). The BIA is not required to discuss every piece
of evidence presented, but must only “consider the issues raised and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374
(11th Cir. 2006) (quotation omitted).
Ordinarily, an alien who is subject to a final order of removal may file one
motion to reopen within 90 days of the date of the final removal order. 8 U.S.C. §
1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Nevertheless, the time limits are
inapplicable if the alien can demonstrate “changed country conditions arising in the
country of nationality or the country to which deportation has been ordered, if such
evidence is material and was not available and could not have been discovered or
presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
3
The BIA has the discretion to deny a motion to reopen for, among other things,
failure to introduce evidence that was material and previously unavailable. Li v. U.S.
Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir. 2007). “An alien who attempts to
show that the evidence is material bears a heavy burden” and must establish “that, if
the proceedings were opened, the new evidence would likely change the result in the
case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256-57 (11th Cir. 2009).
A government’s escalated efforts to enforce an existing coercive policy may
support a finding of changed country conditions necessary to excuse an untimely
motion to reopen. Id. at 1258. In Jiang, upon which the Huangs rely, we rejected the
BIA’s conclusion that the mere fact that China’s family planning policy had been in
effect since 1979 undermined their motion, noting that such reasoning “ignored the
crux of Jiang’s petition: that China’s family planning laws were being more
stringently enforced in her hometown and that this led to forced sterilizations.” Id.Here, the BIA denied the Huangs’ motion to reopen after finding that their new
evidence did not reflect materially changed conditions in China. It is undisputed that
the Huangs filed their motion in 2010, nearly three years after the BIA’s 2007
decision denying their initial application, and as a result, their application was
untimely unless they could demonstrate changed country conditions. 8 C.F.R. §
1003.2(c)(3)(ii). Because the Huangs’ initial application also relied primarily on an
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alleged fear that they would be subject to forced abortions or sterilizations under
China’s family planning policy, they could demonstrate changed country conditions
only by proving that China had enhanced enforcement of its family planning policy
since they originally sought relief. See Jiang, 568 F.3d at 1258.
As the record shows, the Huangs did not excuse the timeliness of their motion
to reopen. While the Huangs’s evidence may have supported an inference that the
Chinese government’s enforcement of its family planning policy resulted in instances
of forced sterilizations, they did not show any significant worsening of these tactics
since 2007, when the BIA initially denied relief. See id. Unlike the petitioner in
Jiang, whose initial application was denied three years before the 2002 codification
of the family planning policy, at the time that the Huangs pursued their initial
application, there were already indications that China’s family policy: (i) was national
in scope, but enforced on a provincial or local level; (ii) was usually enforced through
oppressive social compensation fees and other administrative measures; (iii)
authorized “remedial measures” for out-of-plan pregnancies in the Fujian Province;
(iv) was relaxed in rural areas; and (v) resulted in forced abortions and sterilizations
-- all of which were characteristics of the family planning policy that the Chinese
government “retained” in 2008. Likewise, the materials provided by the Human
Rights Commission described not only recent forced abortions, but incidents dating
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back to 1981. Thus, insofar as the Huangs would be targeted for persecution as the
parents of three children, this was consistent with China’s long-standing policy to
punish all such violators.
Furthermore, despite the Huangs’s allegation of a recent “severe crackdown,”
their evidence did not support a material worsening in China’s treatment of
individuals with more than one child. While they presented evidence of “campaigns”
that apparently resulted in at least one forced abortion, such campaigns were limited
in duration, and do not appear different from the temporary campaigns that occurred
in 2003. Moreover, there was some indication that conditions actually were
improving: whereas in 2005 the central government only nominally protected rights,
in 2008 the central government intervened to prevent local abuse, and there were
signals that it would eventually abandon the one-child policy altogether. As such,
any “severe crackdown” was not a sustained increase in enforcement that altered the
country conditions in a way relevant to the Huangs. Cf. Li, 488 F.3d at 1375.
Even a sustained enforcement campaign would not have been material to the
Huangs. Taking their relatives’ affidavits as true that they were forcibly sterilized,
their statements that they currently lived in the Huangs’ hometown of Guantou, this
was not an indication that they resided there when the sterilization occurred.
Additionally, these incidents involved women who gave birth to children in China.
6
By contrast, the Huangs’s only suggestion that returnees faced forced sterilization
was an affidavit supported by a documentation that U.S. authorities recognized as
false, and conflicted with itself in that the affiant stated he was released only after
consenting to a sterilization, but an attached release order stated he was released
because the detention period expired. Therefore, the Huangs did not demonstrate
that, if their new evidence was available at their initial proceedings, it would have
changed the outcome. See Jiang, 568 F.3d at 1256-57.
Finally, unlike the petitioner in Jiang, the evidence submitted by the Huangs
was not undisputed, nor was it overlooked. Cf. id. at 1257-58. To the contrary, the
BIA specifically identified certain evidence as unworthy of belief. Considering the
deficiencies in these documents, and the fact that they were presented in the context
of a disfavored removal proceeding, the BIA’s inference was not improper. Further,
a number of documents had to be disregarded as previously available because they
related to events that occurred before the BIA denied the Huangs’s initial application.
Consequently, the BIA did not ignore the voluminous documentary evidence in the
record, but arrived at the reasoned conclusion that, because this evidence had to be
discounted as unauthenticated or incomplete, the remaining evidence did not show
that conditions in China had changed such that either Guo-Ju or Guang Zhen Huang
had reason to fear forced sterilization. See Tan, 446 F.3d at 1374.
7
Having found that the Huangs did not demonstrate changed country conditions
necessary to excuse their untimely motion to reopen, we need not consider whether
they set forth a prima facie case for the underlying relief.
PETITION FOR REVIEW DENIED.
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