Huang v. Mukasey

• Decision Date: 15 July 2008
• Docket Number: No. 07-3322.,No. 07-2961.,No. 07-3673.,No. 07-3840.,07-2961.,07-3322.,07-3673.,07-3840.
• Parties: Li Fang HUANG, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent. Ming Dung, also known as Ming Dong, Petitioner, v. Michael B. Mukasey, Attorney General of the United States, Respondent. Xiu Qin Zheng, also known as Xuiqin Zheng, Petitioner, v. Michael B. Mukasey, Attorney General of the United States, Respondent. Xue Jin Li, Petitioner, v. Michael B. Mukasey, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

534 F.3d 618

Li Fang HUANG, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

Ming Dung, also known as Ming Dong, Petitioner, v. Michael B. Mukasey, Attorney General of the United States, Respondent.

Xiu Qin Zheng, also known as Xuiqin Zheng, Petitioner, v. Michael B. Mukasey, Attorney General of the United States, Respondent.

Xue Jin Li, Petitioner, v. Michael B. Mukasey, Attorney General of the United States, Respondent.

No. 07-2961.

No. 07-3322.

No. 07-3673.

No. 07-3840.

United States Court of Appeals, Seventh Circuit.

Argued July 9, 2008.

Decided July 15, 2008.

Yimin Chen (argued), Chen & Associates, New York, NY, Theodore N. Cox (argued), New York, NY, Michael Brown (argued), New York, NY, Gary J. Yerman (argued), Yerman & Associates, New York, NY, for Petitioners.

Julie M. Iversen (argued), Anh Thu P. Mai-Windle, Department of Justice, Civil Div., Immigration litigation, Annette M. Wietecha, Department of Justice, Civil Div., Immigration litigation, Thomas H. Dupree, Jr., (argued), Department of Justice, Civil Div., Appellate Staff, Greg D. Mack, Department of Justice, Immigration Litigation, Aliza Alyeshmerni, Department of Justice, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, SYKES, and TINDER, Circuit Judges.

POSNER, Circuit Judge.

We have consolidated for decision four petitions to review orders by the Board of Immigration Appeals denying petitions to reopen removal proceedings. The petitions to review present overlapping and to a degree identical issues.

In Kucana v. Mukasey, 533 F.3d 534, No. 07-1002, 2008 WL 2639039 (7th Cir. July 7, 2008), this court held that we do not have jurisdiction to review petitions to reopen removal proceedings, including proceedings in which the alien sought asylum, unless the petition to review the Board of Immigration Appeals' denial of reopening presents a question of law. The facts that the Board finds, and the reasons that it gives, en route to exercising its discretion to grant or deny a petition to reopen a removal proceeding, and the discretionary decision itself, cannot be reexamined by a court, whether for clear error, lack of substantial evidence, abuse of discretion, or any other formulation of a ground for reversing an administrative decision; all the court can decide is whether the Board committed an error of law. See also Emokah v. Mukasey, 523 F.3d 110, 119 (2d Cir.2008). That will usually be a misinterpretation of a statute, regulation, or constitutional provision. Kucana v. Mukasey, supra, 533 F.3d at 536-39, *2-4; Zeqiri v. Mukasey, 529 F.3d 364, 369 (7th Cir.2008); Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir.2006); Chen v. U.S. Dep't of Justice, 434 F.3d 144, 153 (2d. Cir.2006); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006). But it could also be a misreading of the Board's own precedent, as in Ssali v. Gonzales, 424 F.3d 556, 564-66 (7th Cir.2005), or the Board's use of the wrong legal standard, as in Azanor v. Ashcroft, 364 F.3d 1013, 1019-21 (9th Cir. 2004), or simply a failure to exercise discretion or to consider factors acknowledged to be material to such an exercise. Kucana v. Mukasey, supra, 533 F.3d at 538-39 *4; see also Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir.2008) ("wholesale failure to consider evidence").

The category of reviewable determinations is illustrated by a case this court decided the day after the Kucana decision. Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008). A Chinese woman who gave birth to two children in the United States sought asylum on the ground that if returned to China she would be forced to undergo sterilization for having violated China's "one child" policy. Her application for asylum was rejected and she was ordered removed to China. She remained in the United States illegally but later sought to reopen her removal proceeding on the basis of changed conditions in China—namely, more vigorous enforcement of the one-child policy than when she had been ordered removed, creating a grave risk that she would be subjected to sterilization. In the course of denying the petition, the Board made a statement that the government's lawyer represented to us at argument meant that if the sanction for violating the one-child policy is a fine (called a "social compensation fee"), there can be no inference of persecution even if the fine is so steep that the violator will be unable to pay it and in consequence will be ordered sterilized. Such a view would be inconsistent with (and a misreading, rather than a deliberate, reasoned rejection of) countless Board and court decisions and an unreasonable interpretation of the federal statute that makes "resistance to a coercive population control program" a ground for asylum. Id. 532 F.3d at 596-98, *1-2; 8 U.S.C. § 1101(a)(42)(B). And so the Board's denial of the petition to reopen was not insulated from our review.

One of the cases before us today, Li's case, No. 07-3840, is almost identical to Lin, but with the critical difference that rather than suggesting that forced sterilization is not persecution as long as it just backs up the "social compensation fee," the Board found that there was no indication that the fee to which Li might be subjected if she were returned to China and punished for violating the one-child policy would be so stiff as to place her in danger of being forced to undergo sterilization as a sanction for failing to pay it. The Board did not intimate, as it had in Lin, that so long as forced sterilization is used merely against people who fail to pay the fee for having more than one child, it is not persecution. Li is in the position therefore of merely disagreeing with the weight that the Board placed on the various items of evidence (country reports, provincial regulations, an unauthenticated notice from the government of Li's village, etc.) en route to its discretionary denial of the petition to reopen. No question of law is presented. We therefore have no jurisdiction to decide whether the petition should have been granted.

In contrast, Zheng's case, No. 07-3673, involves an arguable error of law. He had come to the United States from China in 1999 and had sought asylum on the ground that he had been persecuted for belonging to an underground Catholic church and for opposing China's "one child" policy; he claimed that his wife had been forced to have an abortion when she became pregnant a second time. (Whether the husband of a woman forced to have an abortion is automatically entitled to asylum, or must show that he opposed the one-child policy, has divided the circuits. Compare Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir.2007) (en banc), with cases cited at id. at 300 n. 4. But Zheng claims to have opposed the policy.) The immigration judge denied asylum after an evidentiary hearing in 2001. A letter purporting to be from Zheng's former employer in China said that he was being fired because his wife had had a second child, and this contradicted Zheng's claim about the abortion. And the letter was dated after Zheng arrived in the United States, although he testified that it had been given to him in China when, and in explanation for why, he was fired. He submitted an abortion certificate but the immigration judge found that China issues such certificates only when the abortion is voluntary. There were other contradictions and anomalies and in addition Zheng was unable to answer elementary questions about Catholicism (such as what communion is) and admitted never having attended a Catholic service in the United States. The immigration judge was skeptical that Zheng had ever been a Catholic, and rejected the claim of persecution on account of either religion or the one-child policy.

In 2007 Zheng moved to reopen the removal proceeding, primarily on the ground of changed country conditions— China's more vigorous enforcement of the one-child policy after 2001, which we discussed in Lin. In support Zheng presented affidavits from himself and his wife, along with purported letters from an underground Catholic church in China and his village government that indicate that if returned to China he will be punished for having joined the church. The affidavits state that his wife, who remains in China, has been beaten in an effort to induce him to return to China to face the music. The Board discounted the evidence presented in support of the petition because the claim of persecution had been rejected by the immigration judge in the removal proceeding.

The fact that evidence presented in support of a claim of asylum is rejected as noncredible has been held not to foreclose the reopening of the removal proceeding on a separate ground. Gebreeyesus v. Gonzales, 482 F.3d 952, 955 and n. 3 (7th Cir.2007); Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000); Guo v. Gonzales, 463 F.3d 109, 114 (2d Cir.2006); Guo v....