Yen Zheng Zheng v. Mukasey , 546 F.3d 70 ( 2008 )

United States Court of Appeals
For the First Circuit
Nos. 06-2479
07-1568
YEN ZHENG ZHENG,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Dehai Zhang on brief for petitioner.
Christina Bechak Parascandola, Trial Attorney, Allen W.
Hausman, Senior Ligigation Counsel, and Peter D. Keisler, Assistant
Attorney General, on brief for respondent.
October 29, 2008
Per Curiam. Petitioner Zheng, a citizen of China with
two American born children, seeks to reinstate her appeal of the
denial by the Board of Immigration [BIA] of Zheng's request for
asylum and related relief. She alleges that the appeal was
withdrawn by her attorney due to a miscommunication and that she
never intended to abandon the appeal. Zheng also seeks judicial
review of a decision by the BIA denying her motion to reopen
immigration proceedings, on the basis of newly discovered evidence.
Zheng may reinstate the original appeal. Nevertheless, we deny the
requests for relief.
While the voluntary dismissal of an appeal usually
deprives an appellate court of jurisdiction, see United States v.
Arevalo, 408 F.3d 1233, 1236 (9th Cir. 2005), courts have
reinstated out of time appeals in extraordinary circumstances, such
as when an appeal has been dismissed by an attorney without the
approval of the client, Turker v. Ohio Dept. of Rehabilitation &
Corrections, 157 F.3d 453, 456 (6th Cir. 1998). Since it is
uncontested that the instant appeal was withdrawn without Zheng's
consent, we reinstate the appeal. Nevertheless, it is without
merit.
Petitioner's original claim was denied because the
immigration judge found her hearing testimony not to be credible.
The judge also found her petition to be frivolous, a finding which
would have barred petitioner from ever seeking to have her
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immigration status adjusted. On appeal, the BIA affirmed the
denial of the petition on the ground that the immigration judge's
credibility findings were not clear error. However, it reversed
the determination that the application was frivolous.
Petitioner now claims that the credibility determination
of the immigration judge was not sustainable because the BIA
refused to uphold the finding that the asylum application was
frivolous. Since the BIA's reversal of the latter ruling does not
undermine its specific finding that the judge's credibility
determination was supportable, the initial appeal is without
merit.
After her initial petition was denied, Zheng sought to
reopen proceedings based on alleged new evidence. The evidence
consisted of affidavits from Zheng and her family, as well as
documents from the Fujian Provincial Population and Family
Planning Commission (Zheng is a native of Fujian Province) and an
affidavit from one John Aird, said to be an expert on Chinese
population control policy. The BIA held that, in light of State
Department country condition reports indicating that Chinese
nationals who return to China are not being subjected to forced
sterilization, Zheng had failed to establish her eligibility for
asylum and related relief. In the alternative, the BIA denied the
request on the grounds that the evidence presented was previously
available. This court reviews denials of motions to reopen for
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abuse of discretion. Zhang v. INS, 348 F.3d 289, 292 (1st Cir.
2003). Review is "highly deferential, focusing on the rationality
of the decision to deny reconsideration and reopening, not on the
merits per se, of the underlying claim." Abdullah v. Gonzales,
461 F.3d 92, 99 (1st Cir. 2006).
In order to reopen successfully a removal proceeding,
an alien must both "establish a prima facie case for the
underlying substantive relief sought," Zeng v. Gonzales, 436 F.3d
26, 29 (1st Cir. 2006) (citations omitted), and show that the
evidence presented "was not available and could not have been
discovered or presented at the former hearing," 8 C.F.R. §
1003.2(c)(1). Even if both showings are met, the BIA retains
discretion to deny the motion, Maryam v. Gonzales, 421 F.3d 60,
62 (1st Cir. 2005). Zheng alleges that, if returned to China, she
will likely undergo forced sterilization under China's one child
policy, because she already has two children. Under INA Section
101(a)(42)(B), being forced to abort a pregnancy or to undergo
sterilization is per se persecution on account of political
opinion.
In the instant case, the documents submitted indicate
that Zheng will likely face sanctions and penalties upon her
return. This is insufficient to constitute persecution. See In
re J-W-S, 24 I & N Dec. 185, 191 (BIA 2007) ("Enforcement efforts
resulting in moderate economic impact would not, in general, prove
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a well-founded fear of future persecution.") (citing cases).
Moreover, much of the evidence appears to have been available
prior to the determination of her first request for relief in
2005.
Absent substantiation, self serving affidavits from
petitioner and her immediate family are of limited evidentiary
value. Moreover, the affidavit from Zheng claims only that
officials in her home town have "notified [her] family in China
that I should undergo sterilization upon my return to China," not
that she would be compelled to do so. A.R. 15.
The Aird affidavit, which has been used in several
similar cases, has been consistently found to be less convincing
than the State Department Country Reports which indicate that a
returnee who has children will be penalized upon return, if at
all, only by fines or other economic penalties. See Wang v. BIA,
437 F.3d 270, 276 (2d Cir. 2006) ("a balancing of the 2004 Country
Report against the Aird affidavit's criticism . . . would lead to
the conclusion . . . that petitioner has not shown he would face
anything more than economic sanctions if returned to China"); In
re J-W-S, 24 I & N Dec. at 191-92 (same); In re C-C, 23 I & N Dec.
899, 902-03 (BIA 2006) (same); but see Guo v. Ashcroft, 386 F.3d
556, 564-66 (3d Cir. 2004) (holding Aird affidavit sufficient to
establish prima facie case of likely persecution). The strength
of the Aird affidavit is undermined both by the fact that it is
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not based on personal knowledge and especially by the fact that
it "refer[s] to no incidents of forced sterilization of parents
who return to China with children born abroad." In re J-W-S, 24
I & N Dec. at 190. Finally, it should be noted that the Aird
affidavit pre-dates Zheng's original BIA decision and hence is not
new evidence.
Zheng also relies on two documents from Fujian Province.
The first is a reply from the State Population and Family Planning
Commission to a question regarding the applicability of family
planning laws to Chinese citizens who have (like Zheng) given
birth to children outside the country. According to the document,
such births "may be determined as illegal birth and shall be dealt
with in compliance with relevant provisions of the Regulations on
Population and Family Planning of Fujian Province." A.R. 37.
Second, a document from the Family Planning Office of Ting Jiang
Town (apparently petitioner's home town), in answer to the
question as to "what contraceptive measure needs to be taken after
giving birth to two children or more," states "sterilization."
A.R. 300.1 Taken together these suggest that a returnee with two
1
Zheng also supplies a document from a local city government
implementing "Fujian Province Family Planning Regulations" which
states that "after the second child has been born, then tubal
litigation must be performed." A.R. 71. However, this same
document states that "[f]or those who refuse to practice birth
control in the aftermath of persuasion, authorities of all regions
can implement necessary administrative and economic penalties."
Id. It does not appear to indicate that forced sterilization will
be imposed.
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children faces sterilization. Zheng notes that very similar
documents were held by the Second Circuit to require a remand to
the BIA to determine whether they were sufficient to establish a
well founded fear of persecution. Shou Yung Guo v. Gonzales, 463
F.3d 109, 112-15 (2d Cir. 2006); see also Lin v. Dep't of Justice,
473 F.3d 48, 55 (2d Cir. 2007) (remanding similar case in light
of Shou Yung Guo documents). Zheng urges this court to follow the
Second Circuit's lead.
Subsequent events have weakened Zheng's position. The
Second Circuit's remand was based on its recognition that the BIA
was the adjudicative body best equipped to evaluate the
significance of the Shou Yung Guo documents. Id. at 55. The BIA,
after considering these documents, held that they were
insufficient to establish a well founded fear of persecution. In
re S-Y-G, 24 I & N dec. 247 (BIA 2007); see also In re J-W-S, 24
I & N Dec. 185 (considering similar documents). In J-W-S, the BIA
found that, although the documents do suggest that sterilization
is a policy for those with more than two children, there was no
"evidence that [the policy] is implemented through physical force
or other means that would amount to persecution." Id. at 192.
Moreover, not only does the Chinese "central government policy
prohibit[] physical coercion to compel persons to submit to family
planning enforcement," but enforcement efforts in Fujian Province
in particular are "lax" and "uneven." Id. at 193. In fact, the
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2006 Country Reports indicates, based on interviews with visa
applicants from Fujian Province, no evidence of forced abortions
occurring there. Finally, the 2007 State Department Report on
China refers to a letter from the Fujian Province Population and
Family Planning Commission which states that "children born abroad
. . . are not considered permanent residents of China, and
therefore are not counted against the number of children allowed
under China's family planning laws." Id. After evaluating all
the facts, the BIA concluded that the applicant had not shown a
well founded fear of persecution.
In reviewing these cases after remand, the Second
Circuit noted that the BIA had now fulfilled its duty by
considering the evidence it had failed to consider previously.
Shao v. Mukasey, ___ F.3d ___, 2008 WL 4531571 (2d Cir. 2008) at
*28 n.30. The court also upheld the findings and conclusions of
the BIA denying petitioners' requests for relief. Id. at *19-*30.
In sum, the Second Circuit remand was based on its
belief that the BIA had yet to evaluate the significance of the
Shou Yung Guo documents. The BIA, which the court acknowledged
was in the best condition to perform the evaluation, has
evaluated the evidence and concluded that the documents are
insufficient to establish a well founded fear of persecution.
That conclusion in turn has been upheld by the Second Circuit
panel. Since Zheng has failed to bring forth any evidence which
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would call into question the BIA's determinations in these cases,
we conclude that she has failed to establish a prima facie case
for the relief sought. Therefore, the BIA did not err in denying
the motion to reopen.
The petition for judicial review is denied.
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