Yan Yang v. Eric Holder, Jr. , 393 F. App'x 375 ( 2010 )

NONPRECEDENTIAL DISPOSITION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
Submitted December 17, 2009*
Decided August 4, 2010
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09-2588
YAN ZHEN YANG, Petition for Review of an Order of the Board
Petitioner-Appellant, of Immigration Appeals.
v. No. A077 340 208
ERIC H. HOLDER, JR.,
Respondent-Appellee.
ORDER
Yan Zhen Yang, a Chinese national, appeals the denial of her third motion to reopen
removal proceedings. We affirm.
*
This successive appeal has been submitted to the original panel under Operating
Procedure 6(b). After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 09-2588 Page 2
Yang arrived in the United States from southern China in 2000 and applied for
asylum, withholding of removal, and protection under the Convention Against Torture.
She primarily premised her claims on a fear of persecution based on her Christianity, but
also noted her opposition to China’s family-planning policies (though she was childless at
the time). An immigration judge denied relief, and the Board of Immigration Appeals
summarily affirmed; Yang did not seek judicial review.
Yang twice moved to reopen the proceedings based on changed country conditions,
see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Joseph v. Holder, 579 F.3d 827, 831
(7th Cir. 2009), but was unsuccessful. The first time she sought to reopen proceedings, in
March 2006, she was pregnant with her second child and contended that officials in her
hometown had stepped up enforcement of China’s family-planning policy by forcibly
sterilizing women with more than one child. We upheld the Board’s denial of the motion
because Yang had not shown that conditions had materially changed in China since her last
proceeding before the Board. Yang v. Gonzales, 216 F. App’x 584, 588 (7th Cir. 2007). By the
time she filed her second motion to reopen in May 2007, she had given birth to her second
child and she described harsher treatment in her village toward returnees with U.S.-born
children. We dismissed her petition because, under circuit precedent at the time, see Kucana
v. Mukasey, 533 F.3d 534, 538 (7th Cir. 2008), rev’d, 130 S. Ct. 827 (2010), we believed we
lacked jurisdiction to review most discretionary denials of motions to reopen. Yang v.
Mukasey, 289 F. App’x 132, 134 (7th Cir. 2008).
Yang filed a third motion to reopen in November 2008, again alleging heightened
local enforcement of the country’s family-planning policy and expressing fear that her two
children increased the likelihood of her being forcibly sterilized upon return. Among the
materials Yang submitted, however, only a few actually postdated her last motion:
affidavits from her and her husband describing their fears of sterilization, the 2007 State
Department country report, a letter from her cousin in China recounting that she was
forcibly sterilized after giving birth to a second child, an unauthenticated hospital certificate
with an illegible signature purporting to document the cousin’s sterilization, and a letter
from her father-in-law in China who wrote that he was (at some unspecified point)
wrongfully arrested and imprisoned on trumped-up charges of gambling because his son
had fathered two children. She also submitted a document that predated her last motion—a
notice (dated October 2006) from the Birth Control Office of Guantao Town in Fujian,
stating that she and her husband had violated family-planning rules by having two
children, and directing them to report immediately to that office for sterilization. The Board
denied her motion to reopen, noting that much of her evidence had previously been
presented, and that the new evidence was insufficient to demonstrate a change in China’s
family-planning policy.
No. 09-2588 Page 3
On appeal, Yang maintains that she provided sufficient corroborative evidence to
show changed country conditions for purposes of reopening. But only evidence that could
not be presented at a previous proceeding justifies reopening, see 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), Bao Hua Lin v. Gonzales, 435 F.3d 708, 711 (7th
Cir. 2006); Haile v. Gonzales, 421 F.3d 493, 497 (7th Cir. 2005), and the only evidence here that
is new does not compel that action. Yang emphasizes that the Board disregarded the notice
from the village birth-control office specifically targeting her for sterilization. The Board
was not obligated to credit this unauthenticated document, but even if the document were
authentic, this village birth-control notice predated Yang’s last motion to reopen, and thus is
not evidence of changed conditions since the previous proceeding. See Lin, 435 F.3d at 711;
Haile, 421 F.3d at 497. Our earlier decisions acknowledge the State Department’s country
reports over many years documenting sporadic instances of sterilization, see, e.g., Chen v.
Holder, 604 F.3d 324, 328 (7th Cir. 2010); Huang, 525 F.3d at 566; Wang v. Keisler, 505 F.3d 615,
623 (7th Cir. 2007); Huang v. Gonzales, 453 F.3d 942, 948 (7th Cir. 2006), but Yang has not
shown that conditions have worsened since May 2007, when she last moved to reopen.
Reports of continuing abuse is not evidence of changed circumstances that would mandate
reopening. Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005).
Yang also argues that the Board’s decision is contrary to Lin v. Mukasey, 532 F.3d 596,
597 (7th Cir. 2008), in which we determined that the Board had erred by disregarding a
similar village notice targeting the petitioner for sterilization because of her three children.
In Lin we deemed this notice suggestive of changed circumstances, particularly when
considered together with Fujian’s revised family-planning regulations that threatened to
sanction violators with severe fines. But as the Board noted, Lin is distinguishable because
the Attorney General in that proceeding conceded the notice’s authenticity. The evidence
in Lin also raised the prospect of the fine being so onerous as to amount to persecution; here,
by contrast, Yang made no such showing. Indeed, Yang had earlier testified that she paid a
smuggler $50,000 to enter the United States, belying any notion that she could not afford
any fine she might face. See Huang, 525 F.3d at 564.
Finally, Yang also contends that changes in her personal circumstances, namely the
birth of her two sons, permit the reopening of her petition. But changes in personal
circumstances do not justify reopening proceedings, e.g., Cheng Chen v. Gonzales, 498 F.3d
758, 760 (7th Cir. 2007); Zhao, 440 F.3d at 407, and in any case, the birth of both children
before her last motion to reopen is not evidence of changed conditions.
AFFIRMED.