Ni v. Holder

• Decision Date: 26 April 2013
• Docket Number: No. 12–2242.,12–2242.
• Parties: JI CHENG NI, a/k/a Ji Zheng Nia, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

715 F.3d 620

JI CHENG NI, a/k/a Ji Zheng Nia, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–2242.

United States Court of Appeals, Seventh Circuit.

Submitted Dec. 3, 2012.^*

Decided April 26, 2013.

Gary J. Yerman, Attorney, Yerman & Associates, LLC, New York, NY, for Petitioner.

Michele Yvette Frances Sarko (submitted), OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before WOOD and HAMILTON, Circuit Judges, and DARROW, District Judge. ^**

WOOD, Circuit Judge.

Ji Cheng Ni came to the United States in 2001 from his home in Fujian Province, China. An Immigration Judge ordered him removed in 2003, and his subsequent appeals were unsuccessful. See Ni v. Gonzales, 134 Fed.Appx. 977 (7th Cir.2005). Despite that order, Ni managed to remain in the United States, and he has since started a family. In 2011, following the birth of his second child, Ni moved to reopen his removal proceedings, arguing that he will personally face forced sterilization under China's “one-child policy” if he returns to Fujian Province. Such direct harm constitutes a form of persecution based on “political opinion” for which asylum may be granted. See 8 U.S.C. § 1101(a)(42)(B); Lin v. U.S. Dep't. of Justice, 494 F.3d 296 (2d Cir.2007). The Board of Immigration Appeals (BIA or Board) denied Ni's motion, holding that “his evidence [was] not sufficient to establish a change in circumstances or country conditions,” as generally is required when an applicant files a motion to reopen removal proceedings more than 90 days after the entry of a final administrative order.

The courts of appeals have received scores of strikingly similar petitions for review involving Fujian Province in recent years, and we have regularly upheld the BIA's refusal to grant relief in such proceedings. Routine can be numbing, however, and it can lead to errors. Here, in evaluating Ni's motion to reopen, the BIA failed meaningfully to address documents bolstering Ni's assertion that conditions in China have changed for the worse. Ni's evidence indicates that family planning officials in and around his hometown recently launched a crackdown on those who flout the “one-child policy.” This oversight is particularly worrisome in light of the BIA's frequent admonitions that such locality-specific evidence of coercive enforcement measures is necessary for asylum claims predicated on China's population control policies. Because the BIA failed “to announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted,” see Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008), we grant Ni's petition for review.

I

A motion to reopen is “an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Kucana v. Holder, 558 U.S. 233, 130 S.Ct. 827, 834, 175 L.Ed.2d 694 (2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)). Subject to certain exceptions, an alien may file only one such motion, and he must do so within 90 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7). These time and numerical limitations present no bar, however, to a motion to reopen that is “based on changed country conditions arising in the country ... to which removal has been ordered.” § 1229a(c)(7)(C)(ii). The movant must present “evidence [that] is material and was not available and would not have been discovered or presented at the previous proceeding” to establish such a change. Id.

Because the Board has broad discretion in such matters, we employ a deferential standard of review. Kucana, 130 S.Ct. at 834. The BIA abuses its discretion if “it has made its decision without rational explanation, departs from established policies without explanation, or rests on an impermissible basis such as invidious discrimination.” Jiang v. Holder, 639 F.3d 751, 754 (7th Cir.2010). Its determination must be “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Youkhana v. Gonzales, 460 F.3d 927, 931 (7th Cir.2006).

In assessing motions to reopen involving enforcement of China's population policies, the BIA has emphasized that it assesses each application on a “case-by-case” basis. In re S–Y–G–, 24 I. & N. Dec. 247, 251 (BIA 2007). An applicant may successfully reopen his asylum case by showing “that (1) a relevant change in country conditions occurred, (2) the applicant has violated family planning policy as established in that alien's local province, municipality, or other relevant area, and (3) the violation would be punished in a way that would give rise to a well-founded fear of persecution.” Id. Should the BIA find that no relevant change has occurred, it must provide a “reasoned explanation for its finding that [a petitioner] ha[s] not provided evidence of changed conditions.” Gebreeyesus v. Gonzales, 482 F.3d 952, 955 (7th Cir.2007). Importantly for present purposes, we cannot accept “an agency's inadequately justified decision ‘by substituting what [we] consider[ ] to be a more adequate or proper basis' for the decision.” Borovsky v. Holder, 612 F.3d 917, 921 (7th Cir.2010) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)).

II

Ni arrived at Los Angeles International Airport on August 13, 2001, and promptly sought asylum. He initially claimed that he fled Fujian Province after Chinese authorities shuttered his bookstore in response to his sale of Falun Gong materials, but an Immigration Judge (IJ) denied relief on that basis in 2003 and ordered him removed. The BIA summarily affirmed the IJ's opinion on June 8, 2004, and this court denied Ni's petition for review on June 20, 2005. Ni, 134 Fed.Appx. at 980.

At that point, rather than depart, Ni remained in New York City. In 2006, he married Feng Mei Yang, also a native and citizen of China, and they now have two children. On July 5, 2011, a month after the birth of his second child, Ni moved to reopen his removal proceedings. He asserted that under China's strict family planning policy, the government permits couples to have only one child, and that he would be forced to undergo sterilization should he be removed to Fujian Province. If proven, this would make Ni eligible for asylum on “political opinion” grounds, since a person who can demonstrate a “well founded fear that he or she will be forced to undergo such a procedure [abortion or sterilization] or [be] subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).

Ni's motion to reopen came seven years after the BIA's final order of removal in 2004, well beyond the ordinary 90–day time limit. In order to obtain reopening, Ni had to make a threshold showing of “changed country conditions” in China. 8 U.S.C. § 1229a(c)(7)(C)(ii). Because the birth of Ni's two children in the United States is “merely a change in personal circumstances” rather than a change in “country conditions,” Xiao Jun Liang v. Holder, 626 F.3d 983, 988 (7th Cir.2010) (internal quotation marks and citations omitted), most of Ni's motion focused on establishing an increase in forced sterilizations and abortions in Fujian Province in recent years.

Ni's effort to make such a showing had to take into account the U.S. Department of State's 2007 Country Profile of Asylum Claims and Country Conditions ( 2007 Country Profile ), which states that “U.S. officials in China are not aware of [an] alleged official policy, at the national or provincial levels, mandating the sterilization of one partner of couples that have given birth to two children, at least one of whom was born abroad,” and that “central government policy prohibits the use of physical coercion to compel persons to submit to abortion or sterilization.” Nevertheless, portions of the 2007 Country Profile suggest that abuses may occur at the local level. In the past, the BIA has found this report to be “highly probative and reliable evidence of country conditions in Fujian Province” and has relied on it to deny asylum requests by similarly situated applicants. See In re H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209 (BIA 2010).

Ni had two responses to the 2007 Country Profile: he challenged its methodology and findings; and he argued that its relatively sanguine assessment established only a baseline of “country conditions in China as they existed on or before May 2007.” Since then, Ni contends, conditions have worsened. In support of this claim, Ni submitted nearly 900 pages of indexed documents, including a scholarly critique of the 2007 Country Profile by Dr. Flora Sapio; the 2009 and 2010 Annual Reports of the Congressional–Executive Commission on China (CECC Reports); various research articles and media reports; and, perhaps most importantly, dozens of directives and communiqués to and from local family planning officials throughout Fujian Province. We discuss these documents in greater depth below, but in general they support the proposition that enforcement of China's family planning policy has become more stringent since 2007 in Fujian Province, and that coerced sterilization and abortions are becoming more common.

The BIA gave short shrift to Ni's presentation. After cataloging the voluminous evidence Ni submitted, it offered a one and one-half page explanation of why these materials failed to persuade it of “changed conditions” in China. Most of this discussion focused on why the Board found the 2007 Country Profile reliable, and why it found Dr. Sapio's critique unpersuasive. The Board did not directly address Ni's contention that conditions had deteriorated since the issuance of the 2007 Country Profile, though it very briefly touched upon the 2009 and 2010 CECC Reports and the...