In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3179
L IN X ING JIANG,
Petitioner,
v.
E RIC H. H OLDER, Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A78-745-524
A RGUED M AY 18, 2010—D ECIDED M ARCH 18, 2011
Before O’C ONNOR , Associate Justice, and K ANNE , and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. The Board of Immigration Ap-
peals sought to return Lin Xing Jiang to China after
The Honorable Sandra Day O’Connor, Associate Justice of
the United States Supreme Court (Ret.), sitting by designation
pursuant to 28 U.S.C. § 294(a).
2 No. 09-3179
she arrived on U.S. soil without proper permission to
enter. After her initial request for asylum was denied,
and the time for filing a petition for review or a motion
to reopen the proceedings had run, Jiang filed a motion
to reopen the proceedings with the Board, alleging a
change of circumstances in China supported her claim
for relief. The Board found that the evidence she sought
to offer either was available or could have been dis-
covered or presented at the former hearing and denied
the motion to reopen. Jiang petitioned this court to
review the order of the Board. We affirm.
I.
Jiang, a native and citizen of China, entered St. John,
United States Virgin Islands, on September 22, 2000. The
Immigration and Naturalization Service, now the Depart-
ment of Homeland Security, charged Jiang as being an
alien present in the United States without being ad-
mitted or paroled and began removal proceedings.
Jiang filed for asylum, claiming that she had been forced
to abort a pregnancy by the Chinese government. On
December 20, 2002, Jiang appeared before an immigra-
tion judge who concluded that her story was not
credible and denied her application for asylum, with-
holding of removal, and protection under the Conven-
tion Against Torture. (R. 146-158). Jiang appealed the
immigration judge’s decision to the Board, which,
on March 18, 2004, affirmed the decision without an ac-
companying opinion. (R. 105). The statutory ninety-
day deadline for appeals passed without word from Jiang.
No. 09-3179 3
Over four years later, Jiang filed a motion to reopen her
proceedings, claiming that she had new and material
evidence not discoverable or available at her former
hearing, and thus her untimely petition should be per-
mitted under the regulatory exception to the time limits
for motions to reopen based on changed country condi-
tions, citing 8 C.F.R. § 1003.2(c)(3)(ii). For the first time,
Jiang argued that she feared persecution based on her
Catholic religion. She also cited as new evidence the
fact that since the time of the last hearing, when she
was pregnant with her first child, she had given birth to
two children in the United States in violation of China’s
family planning policies.
Jiang informed the Board that she was baptized as a
Catholic soon after birth and that both she and
her family have continued to practice Catholicism to this
day—she in the United States, and her family in under-
ground, unregistered churches in China. Jiang alleges
that her family arranged for her to leave China for the
United States so that she could continue to practice her
religion and because they feared she could not adhere
to China’s restrictive population control policy. Jiang
argued that circumstances had worsened for prac-
ticing Catholics in China, and that should the United
States remove her to China, she would return to her
former underground Catholic church and risk persecu-
tion. Finally, Jiang stated that although she had told her
immigration lawyer that she had grown up in a Catholic
family in China and was a practicing Catholic, he did not
include a claim for religious persecution in her initial
petition for asylum.
4 No. 09-3179
The Board concluded that Jiang had not submitted
adequate evidence to support reopening, and that the
articles and reports Jiang submitted did not show that
members of underground churches were in more
danger than they had been at the time of her hearing in
2002. (R. 3). The Board noted that Jiang did not
specifically claim in her motion that her former counsel
provided ineffective assistance of counsel and, in any
event, failed to meet the requirements of such a claim.
(R. 4). Finally, the Board concluded that Jiang did not
submit a new asylum application as is required when
filing a motion to reopen. Id at n.1. On August 5, 2009,
the Board denied Jiang’s motion to reopen. Id.
Jiang petitioned this court for review of the Board’s
decision denying the motion to reopen, a decision the
Supreme Court has held we have jurisdiction to re-
view. Kucana v. Holder, 130 S. Ct. 827, 831 (2010). Our
review, however, defers to the decision of the Board
unless it has abused its discretion, that is, unless it has
made its decision without rational explanation, departs
from established policies without explanation, or rests
on an impermissible basis such as invidious discrim-
ination. See Xiao Jun Liang v. Holder, 626 F.3d 983, 988 (7th
Cir. 2010). For the reasons set forth below, we find it
has not, and thus deny the petition.
II.
Under the Immigration and Nationality Act, an asylum
seeker may collaterally attack a final order of removal
by filing a motion to reopen with the Board, which, in
No. 09-3179 5
its discretion, it may grant or deny. 8 U.S.C. § 1229a(c)(7);
8 C.F.R. § 1003.2(a). A motion to reopen based on
changed country conditions is exempt from the usual
ninety-day statutory deadline for filing such motions
so long as the evidence of the changed conditions
“is material and was not available and would not
have been discovered or presented at the previous pro-
ceeding.” 8 U.S.C.A. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii); Zhao v. Gonzales, 440 F.3d 405, 407 (7th
Cir. 2005).
The petitioner concedes that the evidence she
presents “is technically not new evidence [but] was not
available at the initial hearing because her attor-
ney failed to present it,” and that “she did not have an
opportunity to present all her persecution claims.”
(Brief of Petitioner at 13). This argument, however, is one
claiming ineffective assistance of counsel, not changed
country conditions. After all, according to Jiang, she has
been a practicing Catholic all of her life, and the abuse
of Catholics by the Chinese government was well-docu-
mented when Jiang first appeared before the immigra-
tion court in 2002. What she argues is not that the infor-
mation was not available to her at the time of the
hearing, but that her attorney was ineffective for failing
to present it—or to inform her that a claim of persecu-
tion based on her religion would be relevant.
Asylum seekers hold no Sixth Amendment right to
counsel. Toure v. Holder, 624 F.3d 422, 430 (7th Cir. 2010).
“[N]o statute or constitutional provision entitles an
alien who has been denied effective assistance of counsel
6 No. 09-3179
in . . . her removal proceeding to reopen the proceeding
on the basis of that denial.” Jezierski v. Mukasey, 543 F.3d
886, 889 (7th Cir. 2008) (citations omitted) cert. denied, 129
S. Ct. 1662 (2009). This Circuit has recognized, neverthe-
less, that the denial of effective assistance of counsel may
under certain circumstances violate the due process
guarantee of the Fifth Amendment. Toure, 624 F.3d at 430.
The Board long ago recognized this potential for a due
process violation in Matter of Lozada, 19 I. & N. Dec. 637,
638 (BIA 1988) (“Ineffective assistance of counsel in a
deportation proceeding is a denial of due process only
if the proceeding was so fundamentally unfair that
the alien was prevented from reasonably presenting his
case.”). And in this same case, the Board held that an
asylum seeker must do three things to raise an ineffec-
tiveness claim: (1) submit an affidavit establishing that
she had an agreement with counsel to represent her
and detailing its terms; (2) present evidence that she has
given notice to her counsel of the ineffectiveness claim
and an opportunity to respond to the allegations, and
include any response she has received; and (3) if the
attorney violated his ethical or legal obligations, show
that she has filed a complaint with the governing dis-
ciplinary authorities or explain why she has not done so.
Matter of Lozada, 19 I. & N. Dec. at 639.1 We have sus-
1
In Matter of Compean (Compean I), 24 I. & N. Dec. 710 (AG
2009), the Attorney General concluded that the “Constitution
does not confer a constitutional right to effective assistance of
(continued...)
No. 09-3179 7
tained repeatedly the validity of these requirements. See
Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008);
Jezierski, 543 F.3d at 889; Stroe v. INS, 256 F.3d 498, 501
(7th Cir. 2001). Jiang cites several Ninth Circuit cases for
the proposition that failure to comply with the Lozada
requirements is not fatal to a motion to reopen, but this
Circuit, however, has stated that “satisfying the require-
ments of Lozada is a necessary condition to obtaining
reopening on the basis of ineffective assistance of coun-
sel.” Jezierski, 543 F.3d at 889. Even if it were not, we
certainly could not say that the Board abused its discre-
tion by requiring some compliance with Lozada, where
Jiang has failed to satisfy even one of the Lozada require-
ments or to even articulate a specific claim of ineffec-
tive assistance. See Patel v. Gonzales, 496 F.3d 829, 831 (7th
Cir. 2007).
Even were we to construe Jiang’s argument as a claim
of changed conditions rather then a claim for ineffective
1
(...continued)
counsel in removal proceedings,” either through the Fifth or
Sixth Amendments, thus overruling, in part, Matter of Lozada. Id.
at 714. Later that year, the Attorney General vacated the
Compean I decision, Matter of Compean (Compean II), 25 I. & N.
Dec. 1 (AG 2009), and ordered the Executive Office of Immigra-
tion Review to reinstate use of the Lozada standards pending a
comprehensive review of the rules in this area. Id. at 2-3. In any
event, the Board adjudicated Jiang’s ineffective assistance claim
under the law that existed prior to the decision in Compean I.
8 No. 09-3179
assistance of counsel, Jiang failed to demonstrate that
there were material changes in the relevant circumstances
in China. Joseph v. Holder, 579 F.3d 827, 833-34 (7th
Cir. 2009); 8 C.F.R. § 1003.2(c)(3)(ii). A changed circum-
stance need not reach the level of a broad social or
political change in a country; a personal or local change
might suffice. Joseph, 579 F.3d at 834. Nevertheless, there
must be evidence of some material changed circum-
stances. Cumulative evidence that the conditions as-
serted in the original application persisted fails to meet
this burden. Zhao, 440 F.3d at 407.
Jiang submitted several internet news reports posted
in 2008 by an organization called Chinaaid that
recounted incidents in which practicing Catholics were
abused. The Board noted that the evidence in the record
at the time of Jiang’s initial hearing indicated that
China had a terrible human rights record of religious
persecution against unapproved religious groups
including Catholics. The Board referenced the 2000 U.S.
Department of State Country Report on Human Rights
Practices in China (2000 Country Report), which
included evidence that officials razed or confiscated
churches and places of worship, broke up services, ha-
rassed leaders and adherents, at times fining, detaining,
imprisoning, beating, and torturing them. (R. 268) (2000
Country Report). The Board also noted that according
to Jiang’s own affidavit, she and her family suffered
religious persecution before she came to the United States.
(R. 4). A letter from Jiang’s friend that Jiang submitted
as evidence of changed circumstances states that, “the
situation in China is still the same as time [sic] you left
No. 09-3179 9
China.” (R. 63). The articles and evidence submitted by
Jiang merely support the proposition that the human
rights abuses present at the time of her original hearing
in 2002 continue to this day.
Indeed, the State Department’s 2009 Country Report
includes similar reports of surveillance, harassment, and
persecution of Catholics. Nevertheless, this most recent
Country Report may offer a glimmer of optimism for
practicing Catholics as the report notes that “the dis-
tinction between the official Catholic Church, which the
government controlled politically, and the unregistered
Catholic Church was less distinct than in the past. U.S.
Dept. Of State Country Reports on Human Rights
Practices in China, 2009.2 In some official Catholic
churches, clerics led prayers for the Pope, and pictures
of the Pope were displayed.” Id.
Nor can Jiang rely on her claim that because she
has had two children in the United States she will face
persecution in China for violations of that country’s one-
child policy. That argument has been vetted in this court
and rejected. See Joseph, 579 F.3d at 834. Cheng Chen v.
Gonzales, 498 F.3d 758, 760 (7th Cir. 2007). This is not to say
2
Although the 2009 Country Report was not part of the record
below, we still may take judicial notice of it. See Ayele v. Holder,
564 F.3d 862, 873 (7th Cir. 2009). And although Country Reports
have limited utility in some circumstances, see Galina v. I.N.S.,
213 F.3d 955, 959 (7th Cir. 2000), they can serve as one useful
form of comparison in examining changes in country condi-
tions. Id.
10 No. 09-3179
that an applicant for asylum must show some broad
social or political alteration in the country conditions, as
opposed to a more personal or local modification, but an
applicant cannot claim changed country conditions based
on her own actions in the United States when the con-
ditions in the country of origin have not materially
changed. Joseph, 579 F.3d at 834. Jiang has offered no
evidence that the population control efforts and one-
child policy have materially changed since the date of
her initial hearing.
Finally, the Board in a footnote also commented
that Jiang failed to submit a new asylum application
with her motion to reopen, as is required by its regula-
tions. (R. 4). See 8 C.F.R. § 1003.2(c)(1). The Board did not
state that it denied the petition based on this failing, but
it was within its discretion to do so. See Conti v. I.N.S., 780
F.2d 698, 701 (7th Cir. 1985) (“failure to comply with
the procedural requirements for a valid motion to
reopen alone is normally sufficient to overcome the
contention that the denial of such a motion was an abuse
of discretion”); see also Patel, 496 F.3d at 831.
In her brief to this court, Jiang raises several other
arguments regarding the merits of her original asylum
claim, namely that she would suffer persecution if
returned to China because of her coerced abortion, her
opposition to, and violations of China’s family planning
policy. These arguments, however, attack the Board’s
2004 decision which Jiang chose not to appeal and
cannot appeal at this late date. See Stone v. I.N.S., 514 U.S.
386, 405 (1995); Ajose v. Gonzales, 408 F.3d 393, 394-95 (7th
No. 09-3179 11
Cir. 2005). The only decision before this court is the
Board’s August 5, 2009 decision denying Jiang’s motion
to reopen.
The Board did not abuse its discretion in denying
Jiang’s motion to reopen the proceedings. The petition for
review is therefore D ENIED.
3-18-11