Hui Zheng v. Holder

• Decision Date: 16 April 2009
• Docket Number: No. 08-1255.,08-1255.
• Citation: 562 F.3d 647
• Parties: HUI ZHENG, a/k/a Hui Chen, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

562 F.3d 647

HUI ZHENG, a/k/a Hui Chen, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-1255.

United States Court of Appeals, Fourth Circuit.

Argued: January 27, 2009.

Decided: April 16, 2009.

ARGUED:

Joshua E. Bardavid, Law Office of Joshua Bardavid, New York, New York, for Petitioner. Zoe Jaye Heller, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Gregory G. Katsas, Assistant Attorney General, Civil Division, Douglas E. Ginsburg, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Petition for review denied by published opinion. Judge DUNCAN wrote the opinion, in which Judge MOTZ and Judge KING joined.

OPINION

DUNCAN, Circuit Judge:

Hui Zheng, a Chinese citizen, appeals a final order from the Board of Immigration Appeals ("BIA") dismissing her motion to file a successive application for asylum almost eight years after she filed her initial asylum application. She argues that, contrary to the BIA's decision, her changed personal circumstances allow her to file such an untimely successive asylum application without filing a motion to reopen. In the alternative, she argues that any requirement that an asylum applicant file a motion to reopen unlawfully conflicts with the United States's obligations under the Convention Against Torture ("CAT") and the U.N. Protocol Relating to the Status of Refugees ("U.N. Protocol"), which prohibit returning an alien to persecution and torture. Finding no merit in these contentions, we join the eight other circuits that have considered this issue and affirm the BIA.

I.

Hui Zheng is a native and citizen of the People's Republic of China who attempted to enter the United States on August 14, 1998 using a false passport. An immigration officer found her inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an arriving alien who seeks admission to the United States without a valid entry or arrival document. Shortly thereafter, the former Immigration and Naturalization Service ("INS") issued Zheng a Notice to Appear, charging her with being inadmissible and subject to removal under 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Zheng appeared with counsel at a hearing on May 19, 1999. She conceded removability, but stated that she intended to seek asylum. She subsequently filed an Application for Asylum and Withholding of Removal, asserting that she feared persecution if she were to return to China because of China's population control program. At that time, she was unmarried and childless, but expressed her desire to marry and have multiple children. After a merits hearing on December 9, 1999, an immigration judge ("IJ") denied Zheng's asylum and withholding of removal applications. Zheng timely appealed the IJ's decision to the Board of Immigration Appeals ("BIA") on January 10, 2000. On April 9, 2002, the BIA adopted and affirmed the IJ's decision and ordered Zheng deported. Zheng did not appeal the BIA's decision.

On February 25, 2005, Zheng filed with the BIA a motion to reopen based on changed circumstances. In the period since the prior hearing, she had married a United States citizen and had two children. In the motion to reopen, Zheng reiterated her fear of persecution based on China's one-child family planning policy. On April 14, 2005, the BIA denied Zheng's motion to reopen as untimely under 8 C.F.R. § 1003.2(c)(2), which allows an alien to file only one motion to reopen within 90 days of the entry of a final removal order. The BIA found that the birth of Zheng's children in the United States did not constitute changed circumstances arising in the "country of nationality" that would justify an exception under 8 C.F.R. § 1003.2(c)(3)(ii) to the time limits on filing a motion to reopen.¹ The Board also rejected Zheng's argument that she could file an untimely asylum application based on her changed personal circumstances under 8 U.S.C. § 1158(a)(2)(D). The BIA did acknowledge that section 1158(a)(2)(D) allows untimely asylum applications if the alien shows changed circumstances that "materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the one year period."² The BIA found, however, that this exception did not apply to an alien such as Zheng, who had completed her removal proceedings before the IJ and the BIA and had not departed before the time to move to reopen had expired. The BIA determined that Zheng, whose asylum application had been denied and who was subject to removal, was in a qualitatively different position than an alien who has missed the one-year asylum application deadline or who has not otherwise become subject to a final removal order. Zheng did not seek judicial review of this decision, either.

On April 24, 2007, Zheng filed a motion to file a successive asylum application (the "motion to file") before an IJ, again arguing that because of the birth of her two children in the United States, she would be forcibly sterilized if returned to China. She asserted in the motion that she could file a successive application for asylum under 8 C.F.R. § 1208.4,³ that a motion to reopen was not required to file such a successive asylum application, and that the IJ had jurisdiction over the motion to file. She also asserted that under the CAT and the U.N. Protocol, she should not be barred from seeking withholding of removal.

The IJ denied Zheng's motion to file on August 14, 2007, writing "MOTION DENIED" on the first page of her motion. Zheng timely appealed to the BIA on September 12, 2007, arguing that the IJ had failed to render a proper, reviewable decision; that she did not need to file a motion to reopen; and that the IJ had violated her due process rights by failing to address her request for withholding of removal and for protection under the CAT.

The BIA dismissed Zheng's appeal on February 5, 2008. The BIA treated Zheng's motion to file a successive asylum application as a motion to reopen and denied it as untimely and numerically barred under 8 C.F.R. § 1003.2(c). The BIA also found that the IJ had lacked jurisdiction over Zheng's motion to file and that jurisdiction lay with the BIA.

Zheng now appeals, arguing that the IJ had jurisdiction over her motion to file and that filing a motion to reopen is not a necessary predicate to the filing of a successive untimely asylum application under 8 U.S.C. § 1158(a)(2)(D). She also contends that requiring an alien to file a motion to reopen conflicts with the CAT and the U.N. Protocol, which prohibit the return of an alien to a country where the alien will be subject to persecution. We consider her various arguments in turn.

II.

Under 8 U.S.C. § 1252(a)(2)(D), this court has jurisdiction to review constitutional claims and questions of law raised in a petition for review of a final order of removal. We review denials of motions to reopen claims for asylum and claims for withholding of deportation under an abuse of discretion standard. I.N.S. v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). The BIA's legal conclusions are reviewed de novo, although the BIA's interpretation of the Immigration and Nationality Act ("INA") "is entitled to deference and must be accepted if reasonable." Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir.2007) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

III.

A brief outline of the applicable statutory and regulatory scheme will facilitate consideration of Zheng's substantive arguments. Title 8 U.S.C. § 1229a provides the procedure for removal proceedings. Under 8 U.S.C. § 1229a(a)(3), a removal proceeding "shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States." Once removal proceedings have concluded, an alien may usually file only one motion to reopen removal proceedings for further adjudicative review, and must file that motion "within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). However, section 1229a(c)(7)(C)(ii) provides an exception to this 90-day deadline:

There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for [asylum] and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.

See also 8 C.F.R. § 1003.2(c)(3)(ii).

Title 8 U.S.C. § 1158 provides the procedure for asylum applications. Under 8 U.S.C. § 1158(a)(2)(B), an alien must usually seek asylum by filing an application "within 1 year after the date of the alien's arrival in the United States." See also 8 C.F.R. § 1208.4(a)(2). An alien may only file one asylum application; section 1158(a)(2)(C) prohibits an alien from applying for asylum "if the alien has previously applied for asylum and had such application denied." However, section 1158(a)(2)(D) provides the following exception:

An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).

See also 8 C.F.R. § 1208.4(a)(4). Unlike section 1229a(c)(7)(C)(ii), which allows an alien to file a motion to reopen based on changed country circumstances, section 1158(a)(2)(D) permits an alien to file an untimely asylum application based on any "changed...