Zhang v. Mukasey

• Decision Date: 08 October 2008
• Docket Number: No. 07-3355.,07-3355.
• Citation: 543 F.3d 851
• Parties: Yan Xia ZHANG, Petitioner, v. Michael B. MUKASEY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

543 F.3d 851

Yan Xia ZHANG, Petitioner, v. Michael B. MUKASEY, Respondent.

No. 07-3355.

United States Court of Appeals, Sixth Circuit.

Submitted: September 9, 2008.

Decided and Filed: October 8, 2008.

ON BRIEF:

Gary J. Yerman, Yerman & Associates, New York, New York, for Petitioner. Nehal H. Kamani, United States Department of Justice, Washington, D.C., for Respondent.

Before: BOGGS, Chief Judge; and GIBBONS and GRIFFIN, Circuit Judges.

OPINION

BOGGS, Chief Judge.

Yan Xia Zhang ("Zhang"), a Chinese citizen, petitions for review of the decision of the Board of Immigration Appeals ("BIA" or "Board") denying both her motion to reopen asylum proceedings and her successive application for asylum. Zhang argues that the BIA abused its discretion by failing to consider fully evidence that she says demonstrates changed country conditions in China that would support the reopening of her asylum proceedings. The BIA, however, need only rationally explain the basis for its decision as to country conditions. Zhang argues, in the alternative, that the BIA misconstrued the statutory provision governing the reopening of immigration proceedings to also govern a new, untimely application and that she should be able to proceed on her new application on grounds beyond changed country conditions. Because the BIA's interpretation of the ambiguous provisions was reasonable, we defer to it. Accordingly, we deny Zhang's petition for review.

I

Zhang entered the United States from her native China on April 7, 2000. She was detained upon arrival and requested asylum. At the subsequent hearing before an Immigration Judge (IJ), Zhang alleged that she was subject to persecution under China's population policy. She claimed that, after she became pregnant out of wedlock, local population officials compelled her to undergo an abortion and demanded that she present herself the next month for the insertion of an intrauterine device that would prevent any future pregnancy. Instead of submitting to the forced contraception procedure, Zhang says she fled her hometown, hiding out with relatives until she could secure passage to the United States.

The IJ made an adverse credibility determination and denied her application for asylum and withholding of removal. The IJ, after considering Zhang's documentary evidence and its factual foundation, concluded that "[t]he respondant . . . has presented what this Court deems to be fraudulent documents in an effort to obtain a benefit under the Act." Among other inconsistencies, the IJ noted that the written document meant to confirm the forced abortion episode was signed by her father and brother even though the official Chinese household identity card Zhang provided to the court indicated both men had been living in the United States for years prior to the incident. The "most damning" factor for the IJ was the evolution of Zhang's story from her initial statements to immigration officials to the story she pressed in the hearing. She originally suggested that she came to the United States because it is "a democratic country and human rights are very important" and gave no mention of coercive family planning policies. Only later did her claim center on the abortion incident. Zhang explained that she was frightened at first and her final story was the truth. The IJ, however, concluded that, in light of her paying to be shepherded through immigration by a co-passenger, "her fear was not so great as she would have this Court believe." The IJ further found "that the respondent's application for asylum is a frivolous application."¹ Zhang appealed to the Board of Immigration Appeals but failed to file a brief. The Board summarily affirmed in a per curiam decision and made the order of removal against Zhang final.

Zhang nevertheless remained in the United States. By her account, she proceeded to lead a normal life, securing employment and integrating into the immigrant community. She says she met and fell in love with another Chinese immigrant, Jia Xun Wang. She has given birth to two children, a daughter in 2003 and a son the next year. She now, nearly seven years after the BIA issued it, challenges the order of removal.

In February 2007, Zhang filed with the BIA a "Motion to Reopen and Successive Asylum Application." She alleged that the passage and enforcement of a new Chinese law, the Population and Family Planning Law, effective September 2002, constituted changed country conditions in China that warranted a reopening of her application under 8 U.S.C. § 1229a(c)(7)(C)(ii). She further alleged that her own changed circumstances—the birth of her two children—supported a new application for asylum under 8 U.S.C. § 1158(a)(2)(D) because she was now in violation of China's one-child policy and persecution was certain if she were forced to return. The BIA treated these as separate avenues of relief and denied each in turn.

The Board relied on the IJ's adverse credibility determination in rejecting Zhang's claim of changed country conditions. The linchpin of Zhang's argument that she faced an individualized risk of persecution was a letter from her friend alleging two incidents in their home province of Fujian where violations of the population policy resulted in forced sterilization. The Board, however, concluded it "cannot simply accept at face value the purported letter from the applicant's friend as reliable evidence that the applicant now faces sterilization" in light of the IJ's findings that Zhang "submitted fraudulent documents, that her testimony was not credible, and that her asylum application was frivolous."

The Board then turned to her successive application. The application was based on language in § 1158(a)(2)(D): "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 . . . the existence of changed circumstances which materially affect the applicant's eligibility for asylum. . . ." Subparagraphs (B) and (C) provide, respectively, that an alien must file her application within one year after arriving in the United States and that an alien may not file another application if her first is rejected. The Board disagreed with Zhang's interpretation that the exception applied and would allow her to file an additional application notwithstanding her failed motion to reopen her earlier proceedings. Instead, the Board read the statute to mean the statutory bars in § 1158(a)(2)(D) are "separate from, and apply principally at an earlier stage of proceedings than, the 90-day" limitations period in the provisions regulating motions to reopen petitions. It explained that the reopening restrictions now applied to Zhang and foreclosed her application because "[a]n alien who has completed her proceedings before an Immigration Judge, and possibly the Board, and has not departed once the 90-day period for reopening has expired, is not in the same position as an alien who has only missed the 1-year deadline or whose earlier claim was denied in an order that has not ripened into a final order of removal." The Board held that § 1158(a)(2)(D) did not contemplate "untimely claims by aliens under final orders based on changes arising outside the country of nationality or of removal" and, therefore, Zhang must carry her burden to reopen proceedings before the Board would consider a successive asylum application

Zhang now petitions for review of the Board's decision. We address each issue in turn.²

II

"We review the BIA's denial of a motion to reopen for an abuse of discretion." Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006); see 8 C.F.R. § 1003.2(a) ("The decision to grant or deny a motion to reopen . . . is within the discretion of the Board."). We will find an abuse of discretion where "denial of [the] motion to reopen . . . was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination." Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005) (quoting Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982)).

Zhang argues that the BIA abused its discretion by failing to discuss the numerous documents that she appended to her motion to reopen. Specifically, the opinion did not discuss the State Department country reports or the testimony of China experts about abuses related to the new family planning law. Because these documents are material to an element of her claim, she argues that their omission from the Board's discussion requires that we vacate the decision and remand for a fuller explanation of the decision. She correctly describes the Board's reasoning but incorrectly characterizes the law regarding such a decision.

We do not require the Board's opinion to mention every piece of evidence before it or every logical element of a motion. Instead, we understand that there are "at least three independent grounds on which the BIA might deny a motion to reopen—failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought." INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (internal citations omitted). Consequently, the Board need only analyze and explain the basis on which it decided against Zhang. It did so. The Board rejected the credibility of her evidence and held that she did not establish that she "now faces sterilization if she returns to China." When a necessary element of her claim— whether she faced a risk of individual persecution—failed, so did her entire motion. See Harchenko v. INS, 379 F.3d 405, 410 (6th Cir.2004) ("[A]n alien filing a motion to reopen based on changed country conditions cannot rely on speculative conclusions or mere assertions of...