Liu, Mei Mei v. Mukasey, Michael B. , 264 F. App'x 530 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 January 29, 2008
Decided February 15, 2008
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 07-1845
MEI MEI LIU, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A95 928 960
MICHAEL B. MUKASEY,
Respondent.
ORDER
Mei Mei Liu, a Chinese citizen, petitions for review of the order of the Board
of Immigration Appeals denying her motion to reopen her claims for asylum,
withholding of removal, and relief under the Convention Against Torture. Liu
originally claimed that she feared being persecuted by the Chinese government
because her parents are Falun Gong members. The BIA affirmed the immigration
judge’s denial of her claims, but more than two years later, Liu moved to reopen the
proceedings based on “changed personal circumstances.” Specifically, she claimed
that she was pregnant and unmarried, and if she returned to China government
authorities would force her to abort her pregnancy or undergo sterilization. The
BIA denied the motion as untimely. Liu now argues that she is entitled to further
proceedings based on changed conditions in China. Because the BIA did not abuse
No. 07-1845 Page 2
its discretion in finding that Liu had shown only a change in personal
circumstances, rather than a change of conditions in China, we deny the petition for
review.
Background
Liu is a 29-year-old native of the Fujian Province in the People’s Republic of
China. She arrived in the United States in the summer of 2003 and applied for
asylum based on her parents’ membership in Falun Gong. At her asylum hearing
Liu testified that she herself was not a Falun Gong member, but that she had
helped her parents distribute materials promoting the group. She said that in June
2003 government officials came to her home, smashed her furniture, and tried to
arrest her. Liu said that she escaped to a friend’s house and shortly thereafter
came to the United States. The IJ did not believe Liu’s story and denied her claims.
The BIA summarily dismissed her appeal in June 2004, and Liu did not seek
further review.
It is unclear from the record why Liu was not then removed to China, but
more than two years later, in October 2006, Liu filed a motion to reopen stating
that her “personal circumstances [had] changed materially.” Liu, who was
unmarried, stated that she was five-months’ pregnant and that accordingly she
risked being forced to abort her pregnancy or undergo forced sterilization if she
returned to China.1 In support of her motion Liu submitted a document that she
claims was distributed by her home township’s family planning office. The
document is entitled “Combine Our Efforts in Thorough Implementation of Family
Planning,” and states, in relevant part, that as of February 2006 “‘[r]enewed efforts
at detention (arrest)’ should be exerted upon unplanned-birth offenders still at large
so far.” It also states that “[a]ll firm measures may be taken everywhere to prevent
childbirth out of the wedlock.” According to the document, those measures include
“manual miscarriage” or abortion. Liu argued that this document corroborated her
claim that she was entitled to further proceedings “on the ground of changed
personal circumstances.”
The BIA denied Liu’s motion as untimely. It found that her claim did not
satisfy the exception to the 90-day deadline because Liu had shown only a change in
her personal circumstances, not a change in country conditions. It also stated that
the family planning document “does not show a material change in coercive
enforcement practices since the time of [Liu]’s hearing.”
1
Liu gave birth to a son in February 2007.
No. 07-1845 Page 3
Analysis
The BIA may reopen removal proceedings after the 90-day filing deadline has
expired only if the applicant submits material evidence of changed country
conditions that was not available and could not have been presented at her prior
hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Lin v. Gonzales,
435 F.3d 708, 710 (7th Cir. 2006). This court reviews the BIA’s denial of a motion to
reopen for abuse of discretion only. Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir.
2007). Liu argues that the BIA abused its discretion in deeming her motion
untimely because, she says, the family planning document she submitted
constitutes material evidence of a change in China’s family planning policy. She
argues that the document shows that in February 2006 the government began
forcing women who violate the policy to undergo forced abortions or sterilization.
Nowhere in her motion to reopen or accompanying affidavit did Liu argue
that conditions in China had changed. Instead she specifically sought relief based
on her “changed personal circumstances”—namely, her pregnancy. We have held
that changed personal circumstances, including the birth of a child in the United
States, do not justify the relevant statutory exception to the 90-day filing
requirement for motions to reopen. Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.
2007); Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005). Perhaps recognizing
that barrier, Liu now argues that she is entitled to further proceedings because she
submitted evidence of a change in China’s enforcement of its family planning
policies. But as the government points out, Liu did not argue to the BIA that
conditions in China had changed, and thus she has not exhausted her
administrative remedies. See 8 U.S.C. § 1252(d)(1); Margos v. Gonzales, 443 F.3d
593, 599 (7th Cir. 2006). Notably, Liu did not file a reply brief to refute the
government’s exhaustion argument or to argue that she somehow preserved the
issue. See Margos, 443 F.3d at 599.
Normally, Liu’s failure to exhaust her claim of changed country conditions
would mean that this court lacks jurisdiction to consider the new argument she
presents here. 8 U.S.C. § 1252(d)(1); see also Margos, 443 F.3d at 599; Hamdan v.
Gonzales, 425 F.3d 1051, 1059 n.14 (7th Cir. 2005). But here the BIA addressed the
issue sua sponte, stating that the family planning document “does not show a
material change in coercive enforcement practices since the time of the respondent’s
hearing,” and thus concluding that she did not meet the statutory exception for
changed country conditions. Although we have not directly decided whether we
retain jurisdiction to review unexhausted claims that the BIA addresses sua sponte,
the majority of circuits that have addressed the question have held that jurisdiction
exists in this situation. See Sidabutar v. Gonzales, 503 F.3d 1116, 1119-22 (10th
Cir. 2007); Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir. 2006); Abebe
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v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005); cf. Nazarova v. INS, 171 F.3d 478,
488-89 (7th Cir. 1999) (Manion, J., dissenting) (stating that where the BIA
addressed an issue sua sponte “it was exhausted to the extent it could be”); but see
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006)
(holding that the court lacks jurisdiction to review an otherwise unexhausted claim
that the BIA addresses sua sponte.)
We find that the BIA’s decision to address the question of changed country
conditions preserves our jurisdiction to review the issue. The purpose of the
exhaustion requirement is to give the BIA “the opportunity to apply its specialized
knowledge and experience to the matter,” Padilla v. Gonzales, 470 F.3d 1209, 1213
(7th Cir. 2006), and to afford it the chance “to provide the petitioner the ultimate
relief requested in the first instance,” Gonzalez v. O’Connell, 355 F.3d 1010, 1017
(7th Cir. 2004). As the Tenth Circuit recently held, both of these concerns are
satisfied when the BIA decides the merits of an issue sua sponte. See Sibutar, 503
F.3d at 1122 (holding that a “substantive final decision by the BIA on the issues . . .
is all that is needed to confer our jurisdiction”). Where, as here, the BIA applied its
expertise and exercised its discretion to make a substantive ruling on whether Liu
had shown changed country conditions, “it would be bizarre—and decidedly unfair
to [Liu]—for us to refuse to review that decision.” See Socop-Gonzalez v. INS, 272
F.3d 1176, 1186 (9th Cir. 2001) (internal quotation marks and citation omitted).
And it is unclear why we should refuse to consider an issue based on a procedural
defect—failure to exhaust—that the BIA was willing to overlook. See Abebe, 432
F.3d 1041. Accordingly, we find that we have jurisdiction to review the BIA’s sua
sponte finding that Liu had not shown changed country conditions in China.
Turning to the merits, Liu argues that the family planning document she
submitted along with her motion to reopen is sufficient to show changed country
conditions. But the document on which Liu relies describes persistent—rather than
new—conditions. See Zhao, 440 F.3d at 407. It shows that local officials were
advocating “[r]enewed efforts” in enforcing family planning policies, suggesting that
such efforts had been made previously. It further states that “we must never show
leniency or softness in ‘working at family planning,’ nor must we loosen our effort or
relax our vigilance to any degree in our thinking; rather, we should consider work
at family planning as an ongoing task every year.” Nothing in the document
announces a new policy or suggests that the coercive tactics it describes had not
been used in the past.
Although some courts have held that evidence of new campaigns of forced
sterilization—if consistent with government reports describing recent crack-
downs—may justify a motion to reopen, see, e.g., Li v. U.S. Att’y Gen., 488 F.3d
1371, 1375 (11th Cir. 2007); Chen v. Gonzales, 490 F.3d 180, 183 (2d Cir. 2007), Liu
No. 07-1845 Page 5
has not pointed to any evidence supporting her argument that the family planning
document describes a change in conditions. Her “new” evidence is actually
consistent with State Department reports she submitted along with her asylum
application. The 2002 Country Report states that in at least one province, “rules
state that ‘unplanned pregnancies must be aborted immediately.’” The 1998 profile
of China asylum applications notes that some local officials under pressure to meet
population targets used methods including forced abortions and sterilization to
enforce family planning policies. Liu argues that the family planning document
shows that the centralized government now condones such tactics, but it is a
mandate from a local family planning office that makes no mention of other
government authorities. It shows only that—consistent with the earlier State
Department reports—local officials advocate coercive methods of enforcing family
planning laws. Because the document is insufficient to show a change in conditions
in China, the BIA did not abuse its discretion in denying her motion to reopen. See
Zhao, 440 F.3d at 407. Accordingly, we deny the petition for review.