Dong, Xiu H. v. Gonzales, Alberto R. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 12, 2006
Decided January 24, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2300
XIU HUA DONG, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A77-651-880
ALBERTO GONZALES,
Respondent.
ORDER
Xiu Hua Dong, a native and citizen of China, petitions for review of the denial
of her third motion to reopen her asylum case. The Board of Immigration Appeals
(BIA) concluded that, as relevant to this appeal, Dong had not submitted material
evidence that conditions in China had changed so as to relieve her from the time and
number restrictions on motions to reopen. On appeal, Dong argues that the BIA’s
conclusion is irrational in light of Chinese legislation from 2001 that, she says, has
been enforced in her hometown only recently, and has led to more frequent forced
sterilizations in China, particularly of persons like herself with more than one child.
However, the evidence Dong submitted does not support her motion to reopen a
removal proceeding, among other reasons, and thus we deny the petition for review.
No. 06-2300 Page 2
I.
Dong, who hails from Fujian Province, entered the United States in 1997. She
was later charged with removability on the ground that she entered the country on a
Japanese passport and visa issued to someone else. Dong conceded removability but
applied for asylum, withholding of removal, and protection under the Convention
Against Torture. She claimed that she was harassed by family planning officials in
China for becoming pregnant out of wedlock. She did not appear at her scheduled
asylum hearing, and in August 2001, the immigration judge (IJ) ordered her
removed in absentia. Weeks later, she challenged the removal order in a motion to
reopen, which was denied because she did not claim that she lacked notice of her
hearing and did not demonstrate that her failure to appear was the result of
exceptional circumstances. In July 2002, Dong filed another motion to reopen,
alleging ineffective assistance of counsel. This motion, too, was denied in August
2003, because the BIA concluded that Dong did not comply with the requirements of
In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). Despite the order of removal,
Dong stayed in the United States. She married another Chinese citizen in July 2002
and gave birth to a son in August 2004 and a daughter in November 2005.
In February 2006, Dong asked the BIA for the third time to reopen her case.
She again alleged that she had received ineffective assistance of counsel around the
time of her asylum hearing. She also maintained that conditions in China had
changed so that she now faced an even greater likelihood of persecution under
China’s family planning policies. In support of this argument she submitted
documents including the text of the Population and Family Planning Law (“PFPL”),
a law enacted in December 2001 that, according to Dong, steps up enforcement of
involuntary population control measures and has been implemented in her area only
recently. She provided as well a transcript of Congressional testimony and an
affidavit from 2004 by John Shields Aird, a retired demographer from the U.S.
Census Bureau, which is frequently submitted by Chinese asylum applicants. Aird
asserts that Chinese citizens who have children abroad are equally subject to
population-control procedures, including forced sterilization, upon return to China.
Dong also attached her children’s birth certificates, a letter from her mother in
Fujian discussing forced sterilizations there, State Department reports from 2003
and 2004, and American newspaper articles discussing population control in China.
The BIA was unpersuaded by Dong’s arguments. Regarding the allegedly
changed country conditions—the only subject of this appeal—the BIA concluded that
the birth of Dong’s two children simply constituted changed personal circumstances,
which do not provide a basis for reopening a removal proceeding. The BIA also found
that the remainder of the evidence Dong submitted did not establish that conditions
in China had materially changed. Accordingly, the BIA denied Dong’s motion, and
she now petitions for review.
No. 06-2300 Page 3
II.
In general an alien may file one motion to reopen within 90 days of the BIA’s
decision. See 8 C.F.R. § 1003.2(c)(3)(ii). However, the normal restrictions do not
apply if the motion to reopen is based on “changed circumstances arising in the
country of nationality.” See id. § 1003.2(c)(3)(ii). To support reopening on this
ground, the alien must provide evidence that is “material and was not available and
could not have been discovered or presented at the previous hearing.” Id. We review
the BIA’s decisions on motions to reopen for abuse of discretion. Pelinkovic v.
Ashcroft, 366 F.3d 532, 536 (7th Cir. 2004).
On appeal, Dong primarily contends that the BIA erred in concluding that
she did not establish a change in country conditions because, she asserts, her
evidence demonstrated that “forced abortions and sterilizations have been on the
rise” in China since the passage of the PFPL December 2001. But that law, the text
of which was attached to Dong’s motion, is silent about sterilization as a method of
enforcing population control. Moreover, the law was passed in late 2001, and Dong
does not support her assertion that local officials have only recently enforced it. Her
reliance on the PFPL, therefore, does not demonstrate changed conditions in China.
The Aird affidavit likewise does not support the argument that population control
measures are more oppressive now. We have already held that the affidavit, which
relies on information from the 1990s, is not evidence of changed circumstances. See
Lin v. Gonzales, 435 F.3d 708, 711 (7th Cir. 2006). Nor does the birth of Dong’s
children in the United States—years after she was ordered removed—reflect
changed conditions. See Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2006). We
have stated that the birth of a child is a change in “personal circumstances” that
does not trigger the statutory exception allowing additional, untimely motions to
reopen. Id. at 407.
In fact, the only evidence that can be said to support Dong’s assertion that
circumstances have worsened is a letter—not an affidavit—from her mother, in
which she informs Dong that two neighbors had recently been forced to undergo
sterilization and states that “these kind of persecutions are common in our village
since the enactment and implementation of the PFPL.” Dong’s mother also cautions,
“If you were sent back to China, you would definitely be forced to take the
sterilization as well.” These unsworn and conclusory statements repeat Dong’s
assertion that the situation in China has changed, but provide little evidence. See
Zhao, 440 F.3d at 407 (affidavit from petitioner’s wife discussing “crackdown” on
Falun Gong practitioners did not support finding of changed circumstances because
at best it was cumulative evidence that same conditions persisted).
In a case with facts similar to those presented here, the Second Circuit
persuasively reasoned that the petitioner had not established grounds for reopening.
No. 06-2300 Page 4
See Wang v. BIA, 437 F.3d 270, 272-73 (2d Cir. 2006). In that case, a Chinese
national sought to reopen his asylum case based on changed conditions, asserting
that the PFPL was only recently implemented in his hometown but virtually assured
his sterilization. See id. Like Dong, he relied on an Aird affidavit and affidavits
from residents of China recounting incidents of forced sterilization. Id. at 273. Also
like Dong, Wang had married and had children after being ordered removed, and he
filed his motion to reopen years after that order. Id. at 274. The court, while taking
issue with the BIA’s cursory review of the evidence, held that the Board had not
abused its discretion. Id. at 275. The court stated that a Chinese citizen’s asylum
application might well be granted if he had more than the allotted number of
children and established that sterilization would likely occur if he were removed. Id.
at 273-74. However, the court continued: “It is quite a different situation . . . where
a petitioner is seeking to reopen his asylum case due to circumstances, entirely of his
own making after being ordered to leave the United States.” Such “gaming of the
system,” the court held, is not tolerable. Id. at 274.
Dong relies heavily on another case, Guo v. Ashcroft, 386 F.3d 556 (3d Cir.
2004), in which the Third Circuit reached a contrary result. The court held that the
petitioner was entitled to reopening of her case because she demonstrated prima
facie eligibility for asylum. Id. at 566. The “principal evidence” Guo submitted was
an Aird affidavit, which, along with her testimony at her original asylum hearing,
established a “reasonable likelihood” that Guo would be able to establish a well-
founded fear of persecution. Id. at 565. However, in contrast to this court, the
Third Circuit did not express any skepticism of the Aird affidavit’s evidentiary value.
For example, we have noted that “[m]ost of the sources that Aird relied upon . . .
date back to the 1990s,” so that the information was “available and reasonably
discoverable” much earlier that the petitioner submitted it. Lin, 435 F.3d at 711.
And in Wang, the Second Circuit noted that the Aird affidavit had limited relevance
because it “was not prepared specifically for petitioner and is not particularized as to
his circumstances.” 437 F.3d at 274. Likewise, the affidavit Dong submitted does
not discuss her particular case, a significant point where she argues specifically that
the conditions in her hometown in particular have grown worse due to enforcement
of the PFPL there. On balance, of the cases similar to Dong’s, we find the reasoning
in Wang more persuasive.
Finally, although Dong does not rely on it, we note that the Second Circuit has
recently discussed the existence of certain evidence supporting changed country
conditions in cases where asylum applicants from Fujian Province sought to reopen
their claims premised on the one-child policy. In the first of these cases, [Shou
Yung] Guo v. Gonzales, the applicant submitted evidence with her motion to reopen
that, according to the court, supported the existence of an official policy of sterilizing
individuals who violated the one-child policy. 463 F.3d 109 (2d. Cir. 2006). The
applicant submitted a document entitled “Q & A for Changle City [Fujian] Family
No. 06-2300 Page 5
Planning Information Handbook” that states “An IUD insertion is mandatory upon
birth of first child; sterilization upon birth of second child.” Id. at 113. In addition,
2003 decisions from the Changle City Family Planning Administration and the
Fujian Province Department of Family Planning Administration stated that Chinese
nationals who “engage in reproductive behavior overseas in violation of family
planning regulations . . . shall be subject to family-planning enforcement upon
resettlement in China.” Id. The Second Circuit concluded that the BIA had abused
its discretion by denying the alien’s motion to reopen because the documents lent
“powerful potential support to a finding of changed circumstances” and were “self-
evidently material.” Id. at 115. And in [Tian Ming] Lin v. United States Dep’t of
Justice, 368 F.3d 167 (2d Cir. 2006), the court noted that “the documents recently
presented to this court in Shou Yung Guo . . . suggest that there may in fact be an
official policy of forced sterilization in Fujian Province.” Moreover, “these documents
potentially undermine our continued reliance on the State Department reports.” Id.
at 168. While acknowledging that the documents might not be authentic, the court
nevertheless remanded the case to allow the BIA to decide whether the Shu Young
Guo documents establish an official policy of forced sterilization, and if so, whether
Lin might face the procedure if removed. Id. The Second Circuit has since issued
several unpublished decisions remanding cases to the BIA in light of the Shu Young
Guo evidence. Whatever the impact of this evidence in those cases, however, Dong
did not rely on it before the BIA or in this court.
III.
Although evidence apparently exists that might support Dong’s assertion that
individuals in Fujian Province are sterilized for having more children than
permitted by family planning policies, Dong herself did not rely on it. Instead she
relies on the PFPL and insists that sterilizations have become more frequent in its
wake, but for the reasons discussed earlier, her argument is unpersuasive. And,
notably, Dong stayed in the United States long after the denial of her asylum claim,
even getting married and having children after the BIA denied her first motion to
reopen. As the Second Circuit reasoned in Wang, reopening Dong’s case now would
be tantamount to rewarding her for defying the BIA’s orders to return to China and
instead remaining in the United States to start a family. See 437 F3d. at 274. The
petition for review is DENIED.