[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 16, 2009
No. 09-11339 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A077-618-801
WEN XIU JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 16, 2009)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Wen Xiu Jiang, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’s (“BIA’s”) order denying his untimely motion to
reopen, 8 C.F.R. § 1003.2(a). Jiang argues that the BIA abused its discretion in
denying his motion to reopen because he demonstrated changed country conditions
in China. He further argues that the BIA abused its discretion in discounting the
evidentiary value of an announcement from his village committee indicating that
he would be subject to sanctions under China’s family planning policy if he
returned to China. Finally, Jiang contends that the BIA violated his due process
rights by disregarding certain background documents and failing to consider the
extent to which his case was distinguishable from one it had considered in a
previous decision.
I.
Jiang entered the United States on or about August 12, 1999. The
Immigration and Naturalization Service (“INS”) served him with a notice to
appear, charging him with removability as an alien who entered the United States
without proper documentation, in violation of INA § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). In November 1999, Jiang filed an application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”),
alleging persecution on account of his religious beliefs.
The record in this proceeding included the U.S. State Department’s Country
Report on Human Rights Practices in China (“country report”) for 1998. The 1998
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country report noted that the government “continued” to implement its family
planning policy, whereby couples were permitted to have only one child unless
certain exceptions applied. In addition, the report noted that, after a couple had
two children, one of them was required to undergo sterilization. Those who
violated the family planning policy were subject to “formidable” fines. While
government policy forbade the use of force to compel an individual to undergo
sterilization, there were documented instances of government officials forcing
citizens to undergo sterilization, particularly in the Fujian Province.
In 1999, the Immigration Judge (“IJ”) conducted an asylum hearing, after
which she denied Jiang’s application for relief and ordered him removed to China.
Jiang appealed to the BIA, and in 2002, the BIA affirmed the IJ’s decision.
In August 2008, Jiang filed the present motion to reopen proceedings based
on changed country conditions. In his motion, Jiang explained that he had married
another Chinese citizen, Hai Ying Wang, in New York during February 2008.
Wang was a permanent resident of the United States. In 2004, the couple had their
first son, and in January 2008, the couple had their second son. Jiang contended
that these births violated Chinese family planning policies because: (1) their
children were born outside of marriage; (2) couples were not permitted to have a
second child if their first child was a boy; (3) each son was born without a birth
permit; and (4) regardless of a child’s gender, couples were not permitted to have
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more than two children and, as a result, either Jiang or Wang would be forced to
undergo sterilization if they returned to China.
Jiang supported his motion to reopen with exhibits. These exhibits included
his sons’ birth certificates. He also included his own affidavit, in which he averred
that he was from LianJiang County, Fuzhou City, which was within the Fujian
Province and was an agricultural area. He further averred that his father had asked
his village committee how they would react if Jiang returned to China with two
sons who were born in the United States, and the committee responded that Jiang
and his children were considered to be Chinese nationals for purposes of the family
planning policy. Thus, he was considered to have violated the policy, and would
be subject to fines and sterilization upon his return to China.
Jiang also included a document from his village committee entitled
“Announcement,” which was addressed to him and dated June 16, 2008. The
document noted that Jiang had “severely” violated the family planning policy, and
instructed Jiang to report to family planning officials upon his return to China so
that he could be sterilized and pay a fine.
In addition to his own affidavit, Jiang submitted Wang’s affidavit. In her
affidavit, Wang averred that her husband was a Chinese national and would be
sterilized if he returned to China because they had two sons. She explained that it
was likely that the Chinese government would force Jiang, rather than herself, to
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undergo sterilization because she was a permanent resident of the United States.
Jiang also included a statement from his parents, in which they stated that Jiang
was subject to fines and sterilization for his violation of the family planning policy.
They further explained that they had obtained the announcement from the village
committee and mailed it to Jiang. In their affidavits and statements, Jiang, Wang,
and Jiang’s parents did not state or indicate that local officials had changed or
increased their enforcement of the family planning policy in Jiang’s area since his
last removal hearing in 1999.
Jiang’s exhibits also included statements from his brother’s wife, three of his
female cousins, and the wife of one of his male cousins. In their statements, each
of these women explained that the Chinese government had forcibly sterilized
them after they gave birth to a second child. Jiang’s brother’s wife had been
forcibly sterilized in 2003. His cousins had been forcibly sterilized in 2000, 1998,
and 2007, respectively. The wife of one of Jiang’s male cousins was forcibly
sterilized in 2006. One of Jiang’s female cousins stated that “the family planning
policy has not been changed for more than ten years.” Her statement was dated
April 17, 2008. In their statements, none of these women indicated that the
enforcement of China’s family planning policy had recently changed or increased
in their area.
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Jiang further supported his motion to reopen with background documents
concerning China’s family planning policy. One of these documents was entitled
“Fuzhou City’s Enforcement of the ‘Fujian Province Family Planning
Regulations,’” which was dated 1989. In this document, the Fuzhou City local
government announced that couples from agricultural villages could have only one
child. Couples whose first child was a girl could apply for governmental
permission to have a second child. They were required, however, to wait four
years after the birth of their first child before they had their second child. After a
couple had their first child, an intrauterine device (“IUD”) would be inserted into
the woman. After a couple had their second child, either the male or the female
was required to undergo sterilization. Women who became pregnant in violation
of the family planning policy “should be forced” to have an abortion. The
document noted that those who refused to comply with the birth control
requirements were subject to “administrative and economical measures.” One such
measure was the deprivation of a couple’s salary until they complied with the
family planning policy. The Fuzhou City government stated that it intended that
the family planning policy be “strictly enforced.”
In addition, the record included a “Family Planning Information Handbook”
for Fuzhou City, which was dated 1999. This document set forth the family
planning policy consistently with the other documents of record, and noted that
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couples were required to undergo sterilization after the birth of their second child,
and were subject to fines if they violated the policy.
The record also contained copies of two 2003 administrative decisions from
the Family Planning Administration for Changle City, which was within the Fujian
Province. These decisions addressed the matter of Zheng Yu He, a Chinese
national whose two children were born in the United States. These documents
stated that he would be subject to sanctions under the family planning policy even
though his children were born in the United States because he had not obtained
permanent resident status abroad or authorization to live abroad for at least three
years.
The record also included the 2006 and 2007 country reports for China.
According to the 2006 country report, “The country’s birth planning policies
retained harshly coercive elements in law and practice.” The report also noted,
“Reports of forced sterilizations and abortions . . . . continued to be documented in
rural areas. During the year officials . . . in Fujian Province reportedly forcibly
sterilized women.” The 2007 country report was consistent with the 2006 report.
In addition to the information included in the 2006 report, however, it noted that
the Fujian Province, along with nine other provinces, required unspecified
“remedial measures” to deal with a pregnancy that violated the family planning
policy.
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In addition, Jiang submitted a 2001 report published by the INS, and a 2002
report published by the United Kingdom’s Immigration and Nationality
Directorate. Both of these reports indicated that sterilizations were widely
enforced throughout China during the late 1990’s. While the reports noted that
some areas in the Fujian province only loosely enforced the family planning policy
during the 1990’s, they did not specifically indicate whether Jiang’s area was
among them.
Finally, the record also included the transcript of a 1998 hearing before the
Committee on International Relations of the U.S. House of Representatives. At
this hearing, Gao Xiao Duan, a former family planning official of Yonghe Town,
which was in LianJiang County and the Fujian Province, testified that many
women who were pregnant in violation of the family planning policy were forced
to have abortions. In addition, Duan had personally handled several cases where
women were subjected to sterilization after they had two children. Couples who
violated the policy were also subject to steep fines. Harry Wu, the Executive
Director of the Laogai Research Foundation, testified that, as of 1997, 75% of the
adult women in Yonghe had been sterilized.
The BIA denied Jiang’s motion, concluding that he did not demonstrate
changed circumstances in China that warranted the reopening of his removal
proceedings. In its decision, the BIA discounted the evidentiary value of the 2008
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announcement addressed to Jiang from his village committee, noting that, among
other things, this document had not been authenticated. The BIA reviewed Jiang’s
exhibits and background documents, and found that they did not demonstrate that
forced sterilization was a recent pattern in Jiang’s home village.
II.
We review “the denial of a motion to reopen removal proceedings for abuse
of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). This
standard of review limits us “to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006).
“[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).
However, “[t]o the extent that the decision of the Board was based on a legal
determination, our review is de novo.” Li, 488 F.3d at 1374.
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.” INA § 240B(c)(7)(A), (B); 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
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motion to reopen is filed on the basis of changed circumstances in the country of
the movant’s nationality. INA § 240(c)(7)(C)(ii); 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. Id. An alien cannot circumvent the requirement of changed
country conditions by demonstrating only a change in his personal circumstances.
Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009); see also Chen v.
U.S. Att’y Gen., 565 F.3d 805, 809-10 (11th Cir. 2009). 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 for an untimely motion to reopen. Li, 488 F.3d at 1374.
III.
Denial of Jiang’s Untimely Motion to Reopen
As an initial matter, we assume for purposes of discussion that Jiang would
be subject to the sanctions under China’s family planning policy even though his
children were born in the United States and his wife is a permanent resident of the
United States. In addition, we assume that the fact that Jiang is male would have
no effect on the chances that he would be subject to sterilization if he were
returned to China. We also note that Jiang does not argue on appeal, and the
record does not demonstrate, that Jiang’s province has recently changed the
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manner in which it applies the family planning policy to citizens whose children
were born overseas.
While Jiang’s argument that the BIA erroneously discounted the evidentiary
value of the announcement from his village committee may have merit, the BIA
did not abuse its discretion in denying his motion to reopen. In their affidavits and
statements, Jiang, Wang, Jiang’s parents, and Jiang’s female relatives did not assert
that local authorities had changed or increased their enforcement of the family
planning policy in Jiang’s area. In fact, one of Jiang’s female cousins attested in
her 2008 statement that “the family planning policy has not been changed for more
than ten years.” In addition, one of Jiang’s cousins had been forced to undergo
sterilization in 1998. This evidence distinguishes Jiang’s case from our decision in
Li because the petitioner in Li included statements in which her relatives attested
that government officials in her area had recently increased their enforcement of
the family planning policy.
Moreover, the numerous background documents that Jiang submitted into
the record indicated that couples in the Fujian Province had been required to
undergo sterilization and pay steep fines for violating the family planning policy
since at least the late 1990’s. Significantly, the 1998 country report provided that,
after a couple had their second child, one of them was required to undergo
sterilization, and couples were subject to “formidable” fines if they violated the
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family planning policy. There were documented reports that, in the Fujian
Province, government officials forced individuals to be sterilized. The 2006 and
2007 country reports did not indicate that these practices had changed or increased
over time. Thus, while there was some evidence that, in certain areas, the family
planning policy had been enforced more loosely during the 1990’s than in recent
years, there was also significant evidence that officials in the Fujian Province did
not increase or change their enforcement of the policy between the time of Jiang’s
final administrative hearing in 1999 and the time he filed his motion to reopen.
Because the evidence largely demonstrates that local officials in Jiang’s area
have not recently changed or increased their enforcement of the family planning
policy, Jiang failed to show changed country conditions that would warrant the
reopening of his removal proceeding. Accordingly, we conclude that the BIA did
not abuse its discretion in denying his untimely motion to reopen.
Whether the BIA violated Jiang’s due process rights
Jiang also argues that the BIA violated his due process rights by
disregarding certain background documents and failing to consider the extent to
which his case was distinguishable from one it had considered in a previous
decision. The background documents he refers to indicate that a Chinese citizen
who has children born overseas is still subject to sanctions under the family
planning policy upon his return to China. In the previous BIA decision Jiang refers
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to, the BIA found that the petitioner would not be subject to sanctions under
China’s family planning policy because his children were born overseas.
We review constitutional challenges de novo.” Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003). The Fifth Amendment entitles petitioners in
removal proceedings to due process of the law. Frech v. U.S. Att’y Gen., 491 F.3d
1277, 1281 (11th Cir. 2007). “To prevail on a procedural due process challenge,
the petitioner must show that he was substantially prejudiced by the violation.” Id.
An alien can demonstrate substantial prejudice by showing that, absent the due
process violation, “the outcome would have been different.” Ibrahim v. INS, 821
F.2d 1547, 1550 (11th Cir.1987).
Here, Jiang cannot demonstrate that he was prejudiced due to the BIA’s
alleged failure to distinguish his case from one of its previous decisions, or its
alleged failure to consider the extent to which certain background documents
support his claim. As discussed above, Jiang failed to support his motion to reopen
with evidence of changed country conditions. Accordingly, even if we accept as
true that he would be subject to sanctions under the family planning policy with
children born in the United States, the denial of his motion to reopen was still
appropriate. Thus, even if these alleged errors had not occurred, the outcome of
Jiang’s proceeding would have been the same, and he cannot demonstrate
prejudice.
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Conclusion
Based on our review of the record and the parties’ briefs on appeal, we deny
the petition.
PETITION DENIED.
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