Xiao Jun Liang v. Holder

• Decision Date: 24 November 2010
• Docket Number: No. 09-3713,09-3713
• Citation: 626 F.3d 983
• Parties: XIAO JUN LIANG, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

626 F.3d 983

XIAO JUN LIANG, Petitioner,

v.Eric H. HOLDER, Jr., Respondent.

No. 09-3713.

United States Court of Appeals,Seventh Circuit.

Argued April 19, 2010.

Decided Nov. 24, 2010.

Frank J. Nuara, Attorney (argued), Gary J. Yerman, Attorney, Yerman & Associates, LLC, New York, NY, for Petitioner.

Rebecca A. Hoffberg, Attorney (argued), OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER and SYKES, Circuit Judges, and GRIESBACH, District Judge.^*

GRIESBACH, District Judge.

Xiao Jun Liang, a citizen of the People's Republic of China, arrived in the United States without a valid entry document on July 30, 2003. She applied for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"), alleging that she was mistreated by the Chinese government due to her membership in the Democratic. An Immigration Judge ("I.J.") denied her applications, and the Board of Immigration Appeals (the "BIA" or "the Board") affirmed the decision on March 1, 2004.

Despite the denial of her applications, Liang was not removed from the United States; nor did she leave the country voluntarily. On August 24, 2009, almost five-and-a-half years after entry of the final order of removal, Liang filed a motion to reopen the proceedings and again apply for asylum, withholding of removal and CAT protection, this time on the ground that she feared persecution in the form of forced abortion and sterilization under China's "one-child rule." The Board denied Liang's motion to reopen on October 16, 2009, and she petitioned this court for review. Finding no abuse of discretion by the Board, we deny Liang's petition.

I. Background

As noted above, Liang initially sought asylum and related relief shortly after her arrival in the United States on July 30, 2003, on the ground that she was subjected to mistreatment because of her membership in the Democratic Party. Liang was nineteen years old at the time. At the hearing on her application, the I.J. questioned Liang about her claimed fear of political persecution and found her not credible. Liang testified that she had joined the Democratic Party in 1998, was accepted as a member and was sworn in at the end of 2001. She did not know the platform of the Party, however, and did not have a membership card or any other proof of membership. The I.J. noted there was no indication the party referred to by Liang exists. The I.J. stated that he had reviewed the reports issued by various organizations, particularly the U.S. State Department and the United Kingdom, and asked Liang whether she recognized any of the political organizations listed in those reports which were known to suffer persecution. Liang did not recognize any of them. Thinking that she may have meant the China Democracy Party, the I.J. asked Liang if she recognized the names of any of its leaders, but she again said she did not. Transcript of Oral Decision of the I.J. at 2, 3.

The I.J. also found that Liang's account of how she had arrived in the United States was not credible. Liang testified that on December 23, 2001, she was caught by the authorities distributing pamphlets for the propaganda section of the Party, beaten all over her body and woke up at home. She testified she remained in hiding from the end of 2001 until July of 2003, when she was smuggled to the United States. However, she was extremely vague about how she traveled to the United States. She did not know if her parents paid a smuggler or what her itinerary was. As recounted by the I.J., Liang testified she traveled through Yunan Province from her home in the City of Fuzhou located in Fujian Province, then entered Laos and used a boat to arrive in Thailand. She testified that she arrived at Chicago's O'Hare International Airport on a flight from South Korea. She maintained that she boarded the flight in South Korea after she received a passport from Singapore, which she then lost or "ripped up" on the flight before she arrived in the United States. Id. at 2-5.

At the conclusion of the hearing, the I.J. orally denied Liang's applications. He concluded it was almost certain that Liang did not belong to the China Democracy Party since she was unaware of its activities, its leaders and what had happened to them, or when it was founded. Her testimony was inconsistent with the statement she initially gave at the airport upon her arrival in the United States, and her account of how and why she left her home in Fujian Province was vague and implausible. Noting that the existence of a smuggling ring in Fujian Province was a "well-established fact" and the average fee for smuggling someone into the United States from China, according to official reports, was between $35,000 and $50,000, the I.J. concluded:

I think it is most unlikely, in fact, probably impossible for the respondent to have made the trip she described on her own. I think the respondent, when questioned by the Court, has given misleading information when she was asked direct questions about how she came here and why she came here. I am convinced that the respondent's presence in the United States had nothing to do with any political activities of any kind and it does have to do with her family's and her desire to find work in the United States.

Id. at 7. The Board affirmed without opinion on March 1, 2004, making the I.J.'s decision the final agency decision. Liang did not seek further review.

On August 24, 2009, Liang filed a motion to reopen the proceedings, alleging that she now feared persecution under China's one-child policy. See 8 U.S.C. § 1101(a)(42)(B) ( "[A] person who has a well founded fear that he or she will be forced to [abort a pregnancy or to undergo involuntary sterilization] or 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."). Liang alleged that since her last hearing she had married Guihua Lin, also a citizen of China, and given birth to a daughter. At the time she filed her motion to reopen, Liang was also pregnant with her second child whose due date was on or about November 15, 2009. (Liang later gave birth to a second daughter in late October 2009.) Liang also alleged that since her hearing on her initial application for asylum, conditions in China had changed. She claimed that she had obtained evidence that there had been an increase in enforcement of China's family planning policy through forced abortions and forced sterilization procedures. Having violated China's family planning policy by becoming pregnant with a second child, Liang claimed that China's increased enforcement of the policy gave rise to a well-founded fear of persecution if she returned.

In her affidavit in support of her motion, Liang recounted the dates of her marriage, the birth of her first child, and the expected birth date of her second child. Liang also noted that both she and her husband desired to have additional children. Liang stated that in telephone conversations with her family in China, she had learned that over the past year the Chinese government had increased the intensity of its enforcement of the Family Planning Law in her home city of Fuzhou in Fujian Province. Family members had told her of several incidents in which women who had given birth to a second child were forcibly sterilized. She had also been told of one woman who was forced to abort her second child and was later sterilized because she became pregnant during a required waitingperiod.¹ Liang stated her father-in-law had gone to the local family planning office and inquired about their current practice. He was told that couples with one child were targeted for IUD insertions; couples with two children were targeted for sterilization and subjected to monetary penalties. Liang stated that her pregnancy with a second child so soon after the birth of her first child and without a birth permit was a serious violation of China's family planning law, even though her children were born overseas. Once she and her husband arrive home, they will be required to register their children in order for them to receive schooling or medical care. Her children will then be considered Chinese citizens, and she will be forced to undergo sterilization. It was to avoid persecution in the form of such forced sterilization that Liang claimed she was seeking the protection of the United States.

Along with her affidavit, Liang submitted numerous other documents, some of which were specific to her case, such as letters from her father and father-in-law describing the events she recounted in her affidavit. Liang also included an April 2009 notice from the Qianyang Village Committee of Fuzhou City Mawei District Tingjiang Town. The notice, which appears to have been sent in response to her husband's inquiry about the family planning policy, states that her pregnancy is in violation of China's Nationality Law and directs Liang and her husband to report to the Family Planning Office within one week after her return to China for an abortion or, if she has already given birth, sterilization. The notice also indicates she is to pay a Social Compensation fee between 60% and 300% of annual income as a fine. Most of the documents submitted in support of Liang's motion, however, were copies of materials of a more general nature that fall roughly into four categories: (1) internal documents purportedly issued by Chinese provincial or local government family planning agencies relating to the implementation of the one-child policy; (2) excerpts from United States governmental reports such as the annual Country Reports issued by the Department of State, or from proceedings before Congress regarding conditions in China; (3) excerpts from reports of international organizations concerning China's family planning policy; and (4) various articles from the U.S. and international press reporting...