2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-18-2014

Fang Zheng v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-1194

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1194

___________

FANG ZHENG,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A098-712-421)

Immigration Judge: Honorable Alberto J. Riefkohl

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 18, 2014

Before: FUENTES, COWEN and VAN ANTWERPEN, Circuit Judges

(Filed: June 18, 2014)

___________

OPINION

___________

PER CURIAM

Fang Zheng, a native and citizen of the People’s Republic of China, petitions for 

review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to 

reopen removal proceedings. 
2

I.

Zheng entered the United States without inspection through the Texas border in 

2004. Zheng was detained by the Department of Homeland Security and served with a 

notice to appear in December 2004, charging her as removable under Immigration and 

Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Zheng conceded 

the allegations in the notice to appear, and filed applications seeking asylum, withholding 

of removal, and relief under the Convention Against Torture. Zheng based her 

applications on fear of persecution due to her violation of China’s coercive family 

planning policy. In January 2007, Zheng testified before an Immigration Judge (“IJ”) in 

support of her application. The IJ made an adverse credibility finding, denied Zheng’s 

applications, and ordered her removed to China. 

Zheng, proceeding pro se, appealed the IJ’s decision. In September 2008, the BIA 

agreed with the IJ’s credibility determination and dismissed Zheng’s appeal. Zheng did 

not petition for review of the BIA’s decision, but she did file a timely motion to reopen. 

Zheng based that motion on a purported change in country conditions in China regarding 

family-planning policies. The BIA denied Zheng’s motion in June 2009. Zheng filed a 

petition for review that we denied in December 2009. See Zheng v. Att’y Gen., 359 F. 

App’x 339 (3d Cir. 2009) (per curiam) (not precedential).

In October 2013, Zheng filed a second motion to reopen. Zheng, in order to avoid 

having her motion be time- and number-barred, based the motion on changed country 

conditions in China regarding the treatment of Christians, an issue that became relevant 
3

after her recent conversion to Christianity. The BIA denied Zheng’s motion, concluding 

that it was primarily based on a change in personal circumstance, that is, her conversion 

to Christianity, and not a change in country conditions. Additionally, the BIA concluded 

that Zheng failed to establish that conditions for Christians in China, particularly in 

Fujian Province, had worsened since her final hearing in January 2007. Consequently, 

the BIA determined that Zheng did not qualify for an exception to the time and number 

limitation on filing a motion to reopen, and it denied the motion as untimely and numberbarred. This counseled petition for review followed.

II.

We have jurisdiction to review the BIA’s denial of the motion to reopen pursuant 

to INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). Our standard of review is abuse of discretion. 

Pllumi v. Att’y Gen., 642 F.3d 155, 158 (3d Cir. 2011). This review is highly deferential, 

and we will not disturb the BIA’s decision “unless it is ‘arbitrary, irrational, or contrary 

to law.”’ Id. (quoting Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006)). We review 

the BIA’s legal conclusions de novo, and its factual findings relating to the motion to 

reopen for substantial evidence. See Filja, 447 F.3d at 251.

III.

Zheng conceded that her second motion to reopen was both time- and numberbarred. See INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

There is no time or number limit, however, on the filing of a motion to reopen for asylum 

or withholding of removal “based on changed country conditions arising in the country of 
4

nationality or the country to which removal has been ordered, if such evidence is material 

and was not available or would not have been discovered or presented at the previous 

proceeding.” INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii).1 

Zheng asserts in her brief that the BIA incorrectly concluded that she failed to 

establish a material change in country conditions because it overlooked evidence and 

failed to properly compare the evidence of country conditions in 2007 with the evidence 

of recent country conditions. See Filja, 447 F.3d at 252 (explaining that the change in 

country conditions is measured from the time of proceedings before IJ). Zheng submitted 

as evidence of changed conditions the Department of State’s Human Rights Report on 

China for 2006, the U.S. Commission on International Religious Freedom’s (“USCIRF”) 

Annual Report for 2013, the Congressional-Executive Commission on China’s Annual 

Report for 2012, the China Aid Association’s Annual Report on Religious Persecution in 

China for 2012, three news articles from 2010 indicating that Christians were targeted in 

Fujian Province, and a letter from her aunt, which explained that she and members of her 

house church had been detained in Fujian Province in 2012. The BIA must consider a 

petitioner’s evidence of changed country conditions, but it need not “parse or refute on 

the record each individual . . . piece of evidence offered by the petitioner.” Zheng v. 

Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (quoting Wang v. BIA, 437 F.3d 270, 275 

(2d Cir. 2006)). Here, the BIA adequately indicated that it considered the evidence and 

 

1 The Government contends that the BIA’s uncontested conclusion that Zheng’s 

conversion to Christianity is a change in personal circumstances is dispositive. However, 

an alien may file an asylum application based on changed personal circumstances beyond 

the 90-day statutory period if she can also show changed country conditions. Liu v. Att’y 

Gen., 555 F.3d 145, 150-51 (3d Cir. 2009). 
5

explained why the evidence was deemed insufficient. See Zhu v. Att’y Gen., 744 F.3d 

268, 272 (3d Cir. 2014). 

According to the State Department’s 2006 report, new regulations governing 

religious affairs became effective in China in 2005. (Administrative Record at 76-77) 

(hereinafter “A.R.”). Regarding China’s 10-year plan for handling and eradicating 

unregistered religious groups that was introduced in 2010, the BIA noted that there was 

little information about how the plan practically affected house church members. Zheng 

contends that the China Aid report shows that two phases of the plan have already been 

completed. (A.R. at 167-68). That report states that those phases resulted in 

investigation of house churches and targeted suppression of church leaders, which 

included detainment and forced labor. (A.R. at 168). However, the BIA noted that 

USCIRF’s annual report stated that religious freedom in China deteriorated “particularly” 

only with respect to Tibetan Buddhists and Uighur Muslims. (A.R. at 109). Further, the 

BIA determined that the detention of over a thousand Christians in 2012, (A.R. at 110, 

170), was comparable to the detention of “thousands of house church members” in 2006, 

(A.R. at 77). Thus, the BIA concluded that the evidence of the implementation of the 10-

year plan did not establish a material change in the targeting of Christians since 2007. 

Zheng asserts that the absence of specific references in the State Department’s 

2006 report to persecution in Fujian Province, coupled with the news reports and the 

letter from her aunt,2established a regionalized increase in the targeting of Christians in 

 

2 Zheng contends that the BIA improperly weighed this letter. Although the BIA’s 

reliance on a previous adverse credibility finding in initially giving reduced weight to the 
6

Fujian Province. Yet, as the BIA noted, none of the country reports included evidence of 

specific targeting of Christians in Fujian Province. See Zubeda v. Ashcroft, 333 F.3d 

463, 478 (3d Cir. 2003) (noting that State Department reports are ‘“the most appropriate 

and perhaps the best resource’” regarding political situations in foreign countries 

(quoting Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir. 1995)). The BIA concluded that 

the instances of targeting individual house church leaders and members in Fujian 

Province described in the documents was not sufficient to establish a material change in 

conditions given the lack of evidence of specific conditions in Fujian Province in 2007. 

Additionally, these documents reflect a continuation of the widely varied targeting of 

Christians throughout China, see (A.R. at 77), and the prevalence of targeting house 

church leaders, rather than church members or lay persons, (A.R. at 118, 143, 197). 

For the foregoing reasons, we conclude that Zheng has not shown that the BIA 

abused its discretion in concluding that she failed to meet her burden of establishing that 

conditions for Christians in Fujian Province have materially changed since the time of her 

hearing in 2007. Accordingly, we will deny the petition for review.

 

letter is problematic, see Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (holding that 

the BIA improperly relied on an adverse credibility determination on a religion-based 

claim in adjudicating a later family-planning claim); see also Liu v. Holder, 718 F.3d 

706, 711-12 (7th Cir. 2013) (discussing the authentication of foreign documents), it is 

harmless because the BIA ultimately fully credited the contents of the letter.