[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 28, 2009
No. 09-10503 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A078-207-329
RU ZHENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 28, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Ru Zheng, a native and citizen of China, petitions for review of the Bureau
of Immigration Appeals’ (“BIA’s”) order denying her untimely motion to reopen,
8 C.F.R. § 1003.2(a). Zheng argues that the BIA abused its discretion by (1)
denying her untimely motion to reopen because she failed to show the exception of
changed country conditions in China and (2) failing to consider whether she was
eligible for relief under the Convention Against Torture (“CAT”). For the reasons
set forth below, we deny Zheng’s petition for review.
I.
Zheng, a native and citizen of China, entered the United States on September
4, 2000 on a K-1 non-immigrant visa, with authorization to remain in the country
until December 3, 2000. On November 6, 2002, Zheng submitted an application
for asylum, withholding of removal, and relief under the CAT, alleging persecution
on account of her political opinion.
Zheng supported her application with an affidavit, in which she explained
that, while living in China, she became pregnant with the child of a man named
Bin Lin. Zheng and Lin were not legally old enough to marry or have a child, and,
after being pressured by the government, Zheng had an abortion. After the
abortion, the government wanted to insert an intrauterine device (“IUD”). Zheng
arrived in the United States on September 4, 2000 and has remained here, fearing
that the Chinese government would force her to insert an IUD against her will if
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she returned to China.
At Zheng’s removal hearing, Zheng testified that she was born in Changle
City, China and was not married and had no children. Zheng discovered that she
was pregnant with Lin’s child in March 1999 and hid in her parents’ house in
Changle City, fearing that she would be forced to undergo an abortion. On May 3,
1999, family planning officers came to Zheng’s home, arrested her, and took her to
Changle City Hospital, where she was forced to have an abortion. Family planning
officials told Zheng that she should return to the hospital when her health improved
to have an IUD inserted.
In June and July 1999, officials followed up on their request that Zheng
receive an IUD, but Zheng told the officials that her health had not yet recovered.
Officials came back in September, but Zheng had returned to school in Fuzhou
City, and Zheng’s parents told officials that she would have the IUD inserted after
her schooling was finished. In April 2000, Zheng became engaged to Jiang Yah
Ming Hu, who petitioned for Zheng to receive a K-1 Visa. Zheng received the visa
and came to the United States on September 4, 2000. She stated that she could not
return to either Changle City or Fuzhou City, because she had failed to report to
hospitals in both cities, and officials would force her to have an IUD inserted.
On October 24, 2003, the IJ found that Zheng’s application for asylum was
untimely filed and, therefore, would not be considered. With regard to Zheng’s
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claim for withholding of removal, the IJ found that Zheng’s testimony and
documentary evidence suffered from credibility problems and discrepancies. The
IJ denied Zheng’s application for withholding of removal and CAT relief, based on
these credibility problems and the fact that Zheng failed to prove that she would
continue to fear persecution if she returned to Fuzhou City. On April 22, 2005, the
BIA affirmed without opinion. We subsequently denied, in part, and dismissed, in
part, Zheng’s petition for review.
On May 28, 2008, Zheng filed with the BIA the present motion to reopen
her asylum case and stay removal based on changed country conditions. Zheng
asserted that her personal situation had changed significantly since 1999, because
she had married and given birth to two children in the United States. She also
asserted that conditions in Fujian Province China had changed “for the worse since
2000.”
Zheng submitted the following documentary evidence with her motion to
reopen. Zheng’s marriage certificate, which showed that she was married in the
United States on June 15, 2006. Two birth certificates, which indicated that Zheng
gave birth to two children in the United States, one in 2006, and one in 2008. A
letter, dated December 12, 2007 and signed by Shizhu Zheng, which stated that she
was Zheng’s neighbor in China and that family planning officials had required her
to have an IUD implanted three months after giving birth to her eldest son, on
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March 2, 2000, and a sterilization surgery after giving birth to her second child in
March 2003. A photocopy of a “Certification of Family Planning Surgery of
Changle City,” which stated that the hospital performed sterilization surgery on
Zheng Shizhu on April 7, 2003.
The 2007 Country Report stated that China’s “birth limitation policies retain
harshly coercive elements in law and practice.” It noted that enforcement of the
birth limitation policies varies significantly from place to place and that “[t]he
one-child limit was more strictly applied in the cities” than in rural areas, including
towns of under 200,000 persons. The report noted that several provinces required
termination of pregnancies that violated provincial family planning regulations,
whereas 10 provinces, including Fujian province, required “unspecified ‘remedial
measures’ to deal with out-of-plan pregnancies.” It also noted that local
governments set and assessed social compensation fees, which had to be paid by
couples with an unapproved child and “sometimes reached 10 times a person’s
annual disposable income.” For China generally, the report noted that, “[i]n the
case of families that already had two children, one parent was often pressured to
undergo sterilization . . . [and] [t]he penalties sometimes left women with little
practical choice but to undergo abortion or sterilization.” The report further stated
that “[t]he law prohibits the use of physical coercion to compel persons to submit
to abortion of sterilization. However, intense pressure to meet birth limitation
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targets set by government regulations resulted in instances of local birth-planning
officials using physical coercion to meet government goals.”
The 2002 Country Report on China stated that the country’s “new
Population and Family Planning Law, the country’s first formal law on this
subject, entered into force on September 1 [2002].” It stated that the law was
intended to standardize the implementation of the birth limitation policy. The law
required the use of “quotas or other measures to limit the total number of births in
each county,” required “couples to employ birth control measures,” and “couples
who have an unapproved child to pay a ‘social compensation fee,’” and “grant[ed]
preferential treatment to couples who abide by the birth limits.” It noted that “[i]n
the cases of families who already have two children, one of the parents is
‘encouraged’ to undergo sterilization.” The report noted that “the number of
couples undergoing sterilization procedures after giving birth to two children
increased significantly in at least one province” and “[i]n another province, rules
state that ‘unplanned pregnancies must be aborted immediately.’” However, these
two provinces were not identified by name. It explained that, although “Central
Government policy formally prohibit[ed] the use of physical coercion to compel
persons to submit to abortion or sterilization[,] . . . intense pressure to meet birth
limitation targets set by government regulations has resulted in instances in which
local birth planning officials reportedly have used physical coercion to meet
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government goals.”
The BIA denied Zheng’s motion to reopen and her request for a stay of
removal. It found noted that Zheng’s motion was submitted well after the 90-day
deadline set forth in 8 U.S.C. § 1229a(c)(7)(C)(i) and, therefore, the motion could
be granted only if Zheng showed “changed country conditions arising in [China].”
It acknowledged our decision in Li v. U.S. Att’y Gen., 488 F.3d 1371 (11th Cir.
2007), holding that “an alien’s undisputed evidence of a recent campaign in her
home village in China of forced sterilization warranted reopening based on
changed country conditions;” however, it found that Zheng failed to support her
motion with such undisputed evidence. Id. at 1375. The BIA noted that the letter
from Zheng’s neighbor and the sterilization certificate were black and white copies
and had not been authenticated. It also pointed out that the IJ had previously found
Zheng’s testimony and evidence to lack credibility, and, in light of this, it
“decline[d] to accord much weight to the respondent’s non-authenticated evidence
submitted with her motion to reopen.” It determined that Zheng’s “evidence [wa]s
inadequate to establish a change in circumstances or country conditions ‘arising in
the country of nationality’ so as to create an exception to the time and number
limitation for filing a late motion to reopen to apply for asylum” and denied her
motion to reopen and her request for a stay of removal.
II.
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We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Review “is limited
to determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Id. (internal
quotations omitted). “[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
A party may file only one motion to reopen removal proceedings, and that
motion “shall state the new facts that will be proven at a hearing to be held if the
motion is granted, and shall be supported by affidavits or other evidentiary
material.” 8 U.S.C. § 1229a(c)(7)(A), (B). Generally, a motion to reopen must be
filed no later than 90 days after the final administrative decision. 8 C.F.R.
§ 1003.2(c)(2). However, the 90-day limit does not apply if the motion to reopen
is filed on the basis of changed circumstances in the country of the movant’s
nationality. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). To meet
this exception, a movant must show material evidence that was not available and
could not have been discovered or presented at the previous hearing. 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). We have held that previously
unavailable evidence of a recent campaign of forced sterilization in the petitioner’s
home province is sufficient to satisfy the changed circumstances requirement in an
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untimely motion to reopen. Li, 488 F.3d at 1375.
III.
Denial of Untimely Motion to Reopen
Zheng first argues that the BIA erred in requiring her documentary evidence
to be authenticated under 8 C.F.R. § 1287.6. Zheng is correct that § 1287.6 applies
only to “official documents.” See 8 C.F.R. § 1287.6 (stating that “an official
record or entry therein, when admissible for any purpose, shall be evidenced by an
official publication thereof, or by a copy attested by an officer so authorized”).1
Therefore, while this section may apply to the certificate of Zheng’s neighbor’s
sterilization surgery, it does not appear to apply to the letter from Zheng’s
neighbor. Zheng also argues that the BIA should not have relied on the IJ’s
original adverse credibility determination in denying her motion to reopen. The
testimony Zheng presented in support of her previous asylum application pertained
to evidence of past persecution and whether Zheng had a well-founded fear of
future persecution. In contrast, the relevant inquiry when considering an untimely
motion to reopen is whether the petitioner has presented evidence of changed
conditions in the country to which the petitioner will be removed. See 8 U.S.C.
1
Although Zheng asserts that the BIA relied on 8 C.F.R. § 287.6, the BIA actually cited 8
C.F.R. § 1287.6 in its opinion. The language of these two sections, however, is identical, and the
only meaningful distinction is that 8 C.F.R. § 287.6 applies to proceedings before an IJ, whereas
8 C.F.R. § 1287.6 applies to proceedings before the BIA. See 8 C.F.R. §§ 287.6, 1287.6.
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§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Zheng did not present any
testimony in support of her motion to reopen, but instead, submitted documentary
evidence, which must be considered even if an adverse credibility determination
has been made. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005) (holding that “an adverse credibility determination does not alleviate the
[BIA’s] duty to consider other evidence produced by an asylum applicant”). Thus,
the BIA should not have rejected Zheng’s documentary evidence of changed
country conditions based on the IJ’s previous adverse credibility determination.
Despite these potential errors, however, the BIA correctly found that
Zheng’s evidence was “inadequate to establish a change in circumstances or
country conditions ‘arising in the country of nationality.’” Although the facts in
Zheng’s case are similar to those in Li, the nature of the evidence presented in Li
differed significantly from the evidence presented by Zheng. In contrast to the
extensive evidence of changed country conditions presented in Li, Zheng’s
evidence does not establish that the Chinese government’s manner of enforcing the
one-child policy has worsened. The letter from Zheng’s neighbor is anecdotal
evidence of only one forced sterilization in Zheng’s home province.2 It does not
2
We also note that, although the letter from Zheng’s neighbor is dated December 12,
2007, the letter describes events that occurred in 2002 and early 2003 – before the IJ initially
denied Zheng’s asylum application on October 24, 2003. The certification of sterilization is
dated April 7, 2003 and, therefore, also predated the IJ’s initial denial of relief.
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indicate how many individuals were forced to undergo this procedure or that local
officials have recently increased enforcement of the family planning policy. The
2007 Country Report indicates that China’s “birth limitation policies retain harshly
coercive elements in law and in practice” and notes that parents with two children
were “often pressured to undergo sterilization.” However, the 2002 Country
Report also indicates that “[d]raconian penalties sometimes left expecting mothers
with little choice but to undergo abortion or sterilization.” Thus, although the 2007
Country Report indicates that harsh family planning policies continue to be
enforced in China, it does not lead to the conclusion that Chinese officials have
increased enforcement of the policy since the IJ first denied Zheng’s application.
Finally, in contrast to the evidence presented in Li, Zheng failed to submit an
affidavit attesting that officials in the Fujian Province have increased enforcement
of the family planning policy. See Li, 488 F.3d at 1373. Although Zheng argues
in her motion to reopen and her appellate brief that Chinese officials have
increased enforcement of the family planning policy, the BIA correctly noted that
these statements to not constitute “evidence.” Accordingly, because Zheng’s
evidence failed to established changed conditions with respect to China’s
enforcement of its one-child policy, the BIA correctly denied Zheng’s motion to
reopen.
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Failure to Consider CAT Claim
Zheng also argues that the BIA abused its discretion by failing to consider
the merits of her CAT claim. However, the only way a petitioner may secure
consideration of an untimely subsequent application for asylum, withholding of
removal, and CAT relief, is to show changed conditions in the country of origin.
See 8 U.S.C. §§ 1229a(c)(7)(A)-(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). As discussed
above, Zheng failed to make this showing. Thus, the BIA did not abuse its
discretion in failing to reach the merits of Zheng’s CAT claim. See INS v.
Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 201, 50 L.Ed.2d 190 (1976) (noting
that, “[a]s a general rule courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results they reach”).
Accordingly, the BIA correctly denied Zheng’s motion to reopen and we deny
Zheng’s petition for review .
PETITION DENIED.
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