Huang, Li F. v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2961
LI FANG HUANG,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
No. 07-3322
MING DUNG, also known as MING DONG,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
No. 07-3673
XIU QIN ZHENG, also known as XUIQIN ZHENG,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
2 Nos. 07-2961, 07-3322, 07-3673, 07-3840
No. 07-3840
XUE JIN LI,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petitions to Review Orders of the
Board of Immigration Appeals.
Nos. A77-651-879, A-74-762-766, A77-847-340, A78-125-604.
____________
ARGUED JULY 9, 2008—DECIDED JULY 15, 2008
____________
Before POSNER, SYKES, and TINDER, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for deci-
sion four petitions to review orders by the Board of Immi-
gration Appeals denying petitions to reopen removal
proceedings. The petitions to review present overlapping
and to a degree identical issues.
In Kucana v. Mukasey, No. 07-1002, 2008 WL 2639039(7th Cir. July 7, 2008), this court held that we do not have
jurisdiction to review petitions to reopen removal pro-
ceedings, including proceedings in which the alien
sought asylum, unless the petition to review the Board
of Immigration Appeals’ denial of reopening presents a
question of law. The facts that the Board finds, and the
reasons that it gives, en route to exercising its discretion
to grant or deny a petition to reopen a removal pro-
Nos. 07-2961, 07-3322, 07-3673, 07-3840 3
ceeding, and the discretionary decision itself, cannot be
reexamined by a court, whether for clear error, lack of
substantial evidence, abuse of discretion, or any other
formulation of a ground for reversing an administrative
decision; all the court can decide is whether the Board
committed an error of law. See also Emokah v. Mukasey,
523 F.3d 110, 119 (2d Cir. 2008). That will usually be a
misinterpretation of a statute, regulation, or constitutional
provision. Kucana v. Mukasey, supra, at *2-4; Zeqiri v.
Mukasey, 529 F.3d 364, 369 (7th Cir. 2008); Cevilla v. Gonza-
les, 446 F.3d 658, 661 (7th Cir. 2006); Chen v. U.S. Dep’t of
Justice, 434 F.3d 144, 153 (2d. Cir. 2006); Almuhtaseb
v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). But it could
also be a misreading of the Board’s own precedent, as
in Ssali v. Gonzales, 424 F.3d 556, 564-66 (7th Cir. 2005),
or the Board’s use of the wrong legal standard, as in
Azanor v. Ashcroft, 364 F.3d 1013, 1019-21 (9th Cir. 2004),
or simply a failure to exercise discretion or to consider
factors acknowledged to be material to such an exercise.
Kucana v. Mukasey, supra, at *4; see also Hanan v. Mukasey,
519 F.3d 760, 764 (8th Cir. 2008) (“wholesale failure to
consider evidence”).
The category of reviewable determinations is illustrated
by a case this court decided the day after the Kucana
decision. Lin v. Mukasey, No. 07-3719, 2008 WL 26252776(7th Cir. July 8, 2008). A Chinese woman who gave birth
to two children in the United States sought asylum on
the ground that if returned to China she would be forced
to undergo sterilization for having violated China’s
“one child” policy. Her application for asylum was re-
jected and she was ordered removed to China. She re-
mained in the United States illegally but later sought to
reopen her removal proceeding on the basis of changed
4 Nos. 07-2961, 07-3322, 07-3673, 07-3840
conditions in China—namely, more vigorous enforce-
ment of the one-child policy than when she had been
ordered removed, creating a grave risk that she would
be subjected to sterilization. In the course of denying
the petition, the Board made a statement that the gov-
ernment’s lawyer represented to us at argument meant
that if the sanction for violating the one-child policy is a
fine (called a “social compensation fee”), there can be no
inference of persecution even if the fine is so steep that
the violator will be unable to pay it and in consequence
will be ordered sterilized. Such a view would be incon-
sistent with (and a misreading, rather than a deliberate,
reasoned rejection of) countless Board and court deci-
sions and an unreasonable interpretation of the federal
statute that makes “resistance to a coercive population
control program” a ground for asylum. Id. at *1-2; 8 U.S.C.
§ 1101(a)(42)(B). And so the Board’s denial of the peti-
tion to reopen was not insulated from our review.
One of the cases before us today, Li’s case, No. 07-3840,
is almost identical to Lin, but with the critical difference
that rather than suggesting that forced sterilization is not
persecution as long as it just backs up the “social com-
pensation fee,” the Board found that there was no indica-
tion that the fee to which Li might be subjected if she
were returned to China and punished for violating the
one-child policy would be so stiff as to place her in
danger of being forced to undergo sterilization as a sanc-
tion for failing to pay it. The Board did not intimate, as
it had in Lin, that so long as forced sterilization is used
merely against people who fail to pay the fee for having
more than one child, it is not persecution. Li is in the
position therefore of merely disagreeing with the
weight that the Board placed on the various items of
Nos. 07-2961, 07-3322, 07-3673, 07-3840 5
evidence (country reports, provincial regulations, an
unauthenticated notice from the government of Li’s
village, etc.) en route to its discretionary denial of the
petition to reopen. No question of law is presented. We
therefore have no jurisdiction to decide whether the
petition should have been granted.
In contrast, Zheng’s case, No. 07-3673, involves an
arguable error of law. He had come to the United States
from China in 1999 and had sought asylum on the
ground that he had been persecuted for belonging to an
underground Catholic church and for opposing China’s
“one child” policy; he claimed that his wife had been
forced to have an abortion when she became pregnant
a second time. (Whether the husband of a woman forced
to have an abortion is automatically entitled to asylum,
or must show that he opposed the one-child policy,
has divided the circuits. Compare Shi Liang Lin v. U.S.
Dep’t of Justice, 494 F.3d 396 (2d Cir. 2007) (en banc),
with cases cited at id. at 400 n. 4. But Zheng claims to
have opposed the policy.) The immigration judge denied
asylum after an evidentiary hearing in 2001. A letter
purporting to be from Zheng’s former employer in
China said that he was being fired because his wife
had had a second child, and this contradicted Zheng’s
claim about the abortion. And the letter was dated after
Zheng arrived in the United States, although he testified
that it had been given to him in China when, and in
explanation for why, he was fired. He submitted an
abortion certificate but the immigration judge found
that China issues such certificates only when the abortion
is voluntary. There were other contradictions and anoma-
lies and in addition Zheng was unable to answer ele-
mentary questions about Catholicism (such as what
6 Nos. 07-2961, 07-3322, 07-3673, 07-3840
communion is) and admitted never having attended a
Catholic service in the United States. The immigration
judge was skeptical that Zheng had ever been a Catholic,
and rejected the claim that he had been persecuted either
on account of religion or the one-child policy.
In 2007 Zheng moved to reopen the removal pro-
ceeding, primarily on the ground of changed country
conditions—China’s more vigorous enforcement of the
one-child policy after 2001, which we discussed in Lin. In
support Zheng presented affidavits from himself and
his wife, along with purported letters from an under-
ground Catholic church in China and his village gov-
ernment that indicate that if returned to China he will
be punished for having joined the church. The affidavits
state that his wife, who remains in China, has been
beaten in an effort to induce him to return to China to
face the music. The Board discounted the evidence pre-
sented in support of the petition because the claim of
persecution had been rejected by the immigration judge
in the removal proceeding.
The fact that evidence presented in support of a claim
of asylum is rejected as noncredible has been held not to
foreclose the reopening of the removal proceeding on a
separate ground. Gebreeyesus v. Gonzales, 482 F.3d 952,
955 and n. 3 (7th Cir. 2007); Mansour v. INS, 230 F.3d
902, 908 (7th Cir. 2000); Guo v. Gonzales, 463 F.3d 109,
114 (2d Cir. 2006); Guo v. Ashcroft, 386 F.3d 556, 562 (3d
Cir. 2004); Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir.
2001). Those holdings are rulings of law, and if the Board
has rejected them, by holding that an immigration judge’s
refusal to credit any part of an asylum applicant’s testi-
mony precludes reopening even if the disbelieved testi-
mony is at once inconsequential and unrelated to the
Nos. 07-2961, 07-3322, 07-3673, 07-3840 7
grounds presented in the petition to reopen, its rejection
would present a question of law that we would have
jurisdiction to consider. But all the Board did in Zheng’s
case was refuse to allow his petition to reopen to be used
as a vehicle for reopening credibility issues. The immigra-
tion judge had not ruled that discrimination against
Zheng on the basis of his belonging to an underground
Catholic church could not amount to persecution, and
this would be consistent with his facing persecution if
returned to China, because the government has inten-
sified its opposition to such churches. The immigration
judge had simply disbelieved Zheng’s testimony that
anything had happened to him because of his belonging
to a Catholic church, and even doubted whether Zheng
is really a Catholic.
Since Zheng had been found to have lied at the hearing
about both his claims, religious and population-policy
persecution, he would have had to present evidence in
support of reopening that was in no way dependent on
his discredited credibility in order to establish a well-
founded fear of persecution on the same grounds if he
is returned to China. Guo v. Ashcroft, supra, 386 F.3d at
562; cf. Guo v. Gonzales, supra, 463 F.3d at 114. His own and
his wife’s affidavits, and unauthenticated and possibly
fraudulent documents purportedly from the church and
the village government, were not evidence that could be
assumed to be uncontaminated by his demonstrated
propensity to lie to obtain asylum. The Board is not re-
quired to ignore such a propensity in assessing such
evidence, and so its decision in Zheng’s case is within its
discretionary authority and therefore unreviewable by us.
We turn to Huang’s case, No. 07-2961. Huang, a
Chinese woman, entered the United States in 1999 on false
8 Nos. 07-2961, 07-3322, 07-3673, 07-3840
documents. In 2002 she applied for asylum, claiming
that she had fled China because the government, in an
effort to induce her to marry a man whom she didn’t
want to marry, had forced her to have an abortion (she
was pregnant by her boyfriend) and had seized her fam-
ily’s land. She failed to appear at her hearing before an
immigration judge and was ordered removed. In 2006
she filed a motion to reopen, arguing that she had missed
the hearing because she had not known when and where
it would be held; earlier, however, she had said that
she had not attended because she was afraid that she
would be arrested and removed if she did. Later she
changed her story back to the original one. The Board
denied the petition, and the following year she filed a
second petition to reopen, this one on the ground that
she had received ineffective assistance at her first
hearing. She claimed that she had missed her hearing
because of a stomachache and that her then lawyer had
failed to explain this to the immigration judge.
The Board denied the second petition as untimely. The
deadline for the filing of a petition to reopen (180 days
in Huang’s case, 8 U.S.C. §§ 1229a(b)(5)(C)(i), (c)(7)(C),
from the date of the final order of removal, Pervaiz v.
Gonzales, 405 F.3d 488, 490 (7th Cir. 2005); Guerrero-Santana
v. Gonzales, 499 F.3d 90, 92-93 (1st Cir. 2007)) can be equita-
bly tolled because the statutory deadline is not jurisdic-
tional. Pervaiz v. Gonzales, supra, 405 F.3d at 490, and
cases cited there. But the Board refused to allow
Huang’s very late filing of a second petition because it
disbelieved the stomachache story. As in Li’s case, no
question of law is presented by the petition to review
the denial of reopening, and so we have no jurisdiction.
Had the Board refused to reopen the removal pro-
ceeding because it did not think that Huang had re-
Nos. 07-2961, 07-3322, 07-3673, 07-3840 9
ceived ineffective assistance from her lawyer, rather than
because the petition to reopen had been untimely, the
petition for review might be thought to present a question
of law. Or might not; the issue is treated inconsistently
in our cases. Compare Sanchez v. Keisler, 505 F.3d 641, 647-
48 (7th Cir. 2007); Kay v. Ashcroft, 387 F.3d 664, 676 (7th
Cir. 2004), indicating “yes,” with Patel v. Gonzales, 496
F.3d 829, 831 (7th Cir. 2007), indicating “no,” and Nativi-
Gomez v. Ashcroft, 344 F.3d 805, 807-09 (7th Cir. 2003), and
Stroe v. INS, 256 F.3d 498 (7th Cir. 2001), both leaning
toward “no.” We need not try to eliminate the inconsis-
tency in this case.
That leaves Dung’s case, No. 07-3322. It is another one-
child case, indistinguishable from Li except that Dung
further argues that he should be allowed to file a sec-
ond asylum application after the first is denied, without
having to file a petition to reopen. As he recognizes,
we rejected the identical contention in Cheng Chen v.
Gonzales, 498 F.3d 758 (7th Cir. 2007), and he has presented
no reason to suggest that our decision should be reex-
amined.
The petitions in Li and Huang are dismissed for want
of jurisdiction. The petitions in Zheng and Dung, which
complain about both the Board’s exercise of its discretion
to deny a petition to reopen and alleged errors of law
committed by the Board, are dismissed in part and denied
in part. Saintha v. Mukasey, 516 F.3d 243, 249-53 (4th
Cir. 2008); Emokah v. Mukasey, supra, 523 F.3d at 119.
USCA-02-C-0072—7-23-08