The Honorable Rudolph T. Randa, United States Court for 

the Eastern District of Wisconsin, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1698

PING ZHENG,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A078-746-413

ARGUED OCTOBER 22, 2012—DECIDED NOVEMBER 27, 2012

Before BAUER and ROVNER, Circuit Judges, and RANDA,

District Judge.

RANDA, District Judge. After entering this country illegally in 2001, Ping Zheng (“Zheng”) was found removable

by an immigration judge (“IJ”) in 2004. The Board of
2 No. 12-1698

Immigration Appeals (the “Board”) affirmed, and this

court denied Zheng’s petition for review. Zheng v.

Gonzales, 189 F. App’x 564 (7th Cir. 2006). Now before

the court is Zheng’s petition for review of the Board’s

decision denying her motion to reopen. For the reasons

that follow, Zheng’s petition is denied.

I.

Zheng was born on February 15, 1984 in Ma Wei

District, Fujian Province, in the People’s Republic of

China. She arrived in the United States on July 27, 2001

through the United States Virgin Islands. The former

Immigration and Naturalization Service issued Zheng a

Notice to Appear. After two changes of venue, Zheng

eventually appeared before an IJ in Chicago. Zheng filed

applications for political asylum, withholding of removal,

and protection under the Convention Against Torture,

claiming persecution because of her practice of Falun

Gong. On June 1, 2004, the IJ rejected Zheng’s applications

because her testimony was “rather inconsistent and

almost completely unsubstantiated.” Transcript of the

Oral Decision of the IJ at 6. The Board affirmed without

opinion. On petition for review, this court found that

the IJ’s adverse credibility finding lacked adequate support, but denied the petition because Zheng failed to

prove that she was persecuted while in China, or that she

established a reasonable possibility of future persecution. Zheng, 189 F. App’x at 567-68.

Thereafter, Zheng remained in the United States. On

September 8, 2010, Zheng married Dianle Jiang, with
No. 12-1698 3

whom she has two children: Justin, born August 2, 2007,

and Bryan, born April 9, 2011. On September 8, 2011,

Zheng filed a motion to reopen proceedings with the

Board. Zheng argued that her case should be reopened

due to the birth of her two children and increased enforcement of China’s family planning policy. The Department of Homeland Security opposed Zheng’s motion,

arguing that it was untimely and based on changed

personal circumstances rather than a change in country

conditions. On February 29, 2012, the Board denied

Zheng’s motion because her evidence was “not sufficient to establish a change in circumstances or country

conditions ‘arising in the country of nationality’ so as

to create an exception to the time and number limitations for filing a late motion to reopen to apply for asylum.” Board Decision at 4. Zheng filed a timely petition

for review.

II.

A motion to reopen removal proceedings must be

filed within 90 days of the entry of a final administrative

order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). Zheng’s

motion was filed more than six years after the expiration

of this time frame. However, there is no time limit if

the motion to reopen is based on changed country conditions arising in the country of nationality or the country

to which removal has been ordered, if such evidence

is material and was not available and could not have

been discovered or presented at the previous hearing.

§ 1229a(c)(7)(C)(ii). The purpose behind limiting this
4 No. 12-1698

exception to changed country conditions, as opposed to

changed personal conditions, is to promote finality

in the immigration context. Otherwise, an alien who

manages to avoid removal could “use this interval of

unauthorized presence in the United States to manufacture a case for asylum.” Cheng Chen v. Gonzales, 498

F.3d 758, 760 (7th Cir. 2007). The Supreme Court has

repeatedly acknowledged the importance of finality

in immigration proceedings. See I.N.S. v. Doherty, 502

U.S. 314, 323 (1992) (“[m]otions for reopening of immigration proceedings are disfavored” because “as a general

matter, every delay works to the advantage of the

deportable alien who wishes merely to remain in the

United States”); I.N.S. v. Abudu, 485 U.S. 94, 107-08 (1988)

(recognizing that a generous view towards motions to

reopen would “permit endless delay of deportation by

aliens creative and fertile enough to continuously

produce new and material facts”).

In this light, it should be clear that Zheng’s marriage

and the birth of her two children, standing alone, is

insufficient to warrant reopening. Such an argument

has been “vetted in this court and rejected.” Jiang v.

Holder, 639 F.3d 751, 756 (7th Cir. 2011); see also Cheng

Chen, 498 F.3d at 760; Joseph v. Holder, 579 F.3d 827, 834

(7th Cir. 2009); Liang v. Holder, 626 F.3d 983, 988 (7th Cir.

2010). Our task is therefore limited to analyzing the

Board’s finding that Zheng did not present evidence of

a change in country conditions sufficient to warrant

reopening of removal proceedings. This decision can be

upset only if the Board abused its discretion. Pelinkovic v.

Ashcroft, 366 F.3d 532, 536 (7th Cir. 2004). Under this
No. 12-1698 5

standard, the court will uphold the Board’s decision to

deny Zheng’s motion to reopen “unless it was made

without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible

basis such as invidious discrimination against a particular group or race.” Mansour v. I.N.S., 230 F.3d 902,

907 (7th Cir. 2000).

III.

The focus of Zheng’s motion is China’s “one-child”

family planning policy. Zheng argues that she will be

subject to forced sterilization and severe fines if

she returns to China, even though her two children are

foreign-born. An immigrant who has a well-founded

fear that he or she will be forced to undergo involuntary

sterilization, or will be subject to persecution for failure

to undergo such a procedure or for resistance to a

coercive population program, meets the definition of

a “refugee” and may be eligible for asylum. 8 U.S.C.

§ 1101(a)(42).

In rejecting Zheng’s motion to reopen, the Board cited

to the State Department’s 2007 Country Profile. This

document provides that “U.S. officials in China are not

aware of the 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.” Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, China:

Profile of Asylum Claims and Country Conditions 29

(May 2007).
6 No. 12-1698

According to the State Department, central government policy prohibits the use of physical coercion

to compel persons to submit to abortion or sterilization. Although acknowledging that there were “reportedly” forced sterilizations in Fujian in 2006, the

State Department observes that Consulate General

officials visiting Fujian have found that coercion

through public and other pressure has been used,

but they did not find any cases of physical force

employed in connection with abortion or sterilization.

Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 (BIA

2010) (citing 2007 Profile at 24, 26).

Zheng tried to undermine the conclusions of the 2007

Profile by offering the expert opinion of Dr. Flora Sapio.

According to Dr. Sapio, the 2007 Profile is “seriously

deficient” in its methodology. (Administrative Record

(“A.R.”) 154). “The lack of transparency in the methods

used to research the 2007 Report puts to question

the reliability of information therein contained. The

existence of omissions undermines its credibility and

usefulness.” Id. Moreover, Dr. Sapio cites sources from

Congress and the U.S. Department of State which

confirm that the “practice of forced abortion and sterilization still takes place.” (A.R. 174). Contrary to Zheng’s

argument in her petition for review, the Board did not

reject this evidence out of hand, nor did it question the

expert credentials of Dr. Sapio. Rather, the Board simply

found that “Dr. Sapio’s critique of the 2007 State Department Profile on China does not persuade us that the

Profile is unreliable.” Board Decision at 3. Dr. Sapio herself
No. 12-1698 7

admits that she “does not purport to provide conclusive

answers to specific human rights issues, or to address the

claims raised by individual asylum seekers.” (A.R. 155).

She even concedes that there is “no univocal consensus

on whether forced abortions and sterilizations are still

used to implement the family planning policy. Widely

different opinions exist. All of them rest on the available evidence, which is neither conclusive nor comprehensive.” (A.R. 168). Accordingly, the Board did not

abuse its discretion in adhering to the conclusions in

the 2007 Profile. State Department reports are not

“Holy Writ,” Galina v. I.N.S., 213 F.3d 955, 959 (7th Cir.

2000), but they are still “entitled to deference.” Zheng v.

Gonzales, 409 F.3d 804, 811 (7th Cir. 2005). “State Department reports on country conditions . . . are highly probative evidence and are usually the best source of information on conditions in foreign nations. The reports

are accorded ‘special weight,’ because they are based

on the collective expertise and experience of the Department of State, which ‘has diplomatic and consular representatives throughout the world.’ ” Matter of H-L-H-,

25 I. & N. Dec. at 213 (internal citations omitted).

Aside from the opinion and report of Dr. Sapio, Zheng

also provided portions of the 2009 and 2010 Annual

Reports of the Congressional-Executive Commission

on China (“CECC”), a body created by Congress with

the legislative mandate to monitor human rights and the

development of law in China. The CECC’s 2009 Report

states that “[l]ocal governments have in some cases

stepped up efforts to impose penalties and fines against

couples who give birth to an unauthorized child,” finding
8 No. 12-1698

that local officials in Fujian Province “issued a circular

ordering officials to seek court authorization to carry

out ‘coercive measures’ when family planning violators

fail to pay fines.” (A.R. 136-37). In February 2009, “officials

in Anxi county, Fujian Province, initiated a five-week

campaign of ‘concentrated service activities’ that designated the ‘implementation of abortion remedial measures’ among its five ‘primary tasks.’ ” (A.R. 139).

And in June 2009, “the Wuyishian county government

in Fujian published village family planning regulations

that stipulate the following: ‘In emergency situations

when pregnancies violate family planning policies,

report the matter to the village committee and

promptly carry out remedial measures (abortion).’ ”

(A.R. 140). Similarly, the 2010 Report indicates that

“authorities across a wide range of Chinese localities

launched population planning enforcement campaigns—

often dubbed ‘spring family planning service activities’—that employed coercive measures to terminate

‘out of plan’ pregnancies.” (A.R. 120).

This evidence is insufficient to demonstrate a change

in country conditions. The “one-child policy” is more

than thirty years old, so Zheng cannot prevail without

showing that “China’s enforcement of the policy had

become more stringent in her province since her last

hearing.” Liang, 626 F.3d at 989. Zheng cites reports

from prior to her hearing which characterized enforcement efforts in Fujian Province as “lax” or “uneven.”

Matter of J-W-S-, 24 I. & N. Dec. 185, 193 (BIA 2007)

(citing Bureau of Democracy, Human Rights and Labor,

U.S. Dep’t of State, China: Profile of Asylum Claims and
No. 12-1698 9

Country Conditions 20, 25 (Apr. 14, 1998)). The initiation

of family planning campaigns in Fujian Province is not

inconsistent with the concept of “uneven” enforcement.

If anything, the idea of a targeted, temporary campaign suggests uneven enforcement in the first instance. As the Board has explained, a “new report or a

new law is not evidence of changed conditions without

convincing evidence that the prior version of the law

was different, or was differently enforced, in some relevant

and material way.” Matter of S-Y-G-, 24 I. & N. Dec. 247,

257 (BIA 2007) (emphasis added). Zheng failed to demonstrate that the policy is enforced differently now than

when the petitioner was ordered removed. Lin v. Mukasey,

532 F.3d 596, 596 (7th Cir. 2008). Therefore, the Board

rightly concluded that Zheng’s petition was based on

a change in personal circumstances, not a change in

country conditions.

Aside from the issue of changed country conditions,

the Board also found that Zheng’s evidence was “not

sufficient to demonstrate that [Zheng] will be subjected

to sterilization.” Board Decision at 3. In other words,

even assuming that Zheng’s evidence demonstrated a

change in country conditions from the time of her initial

hearing, Zheng failed to show a “reasonable likelihood”

that she would be eligible for asylum if proceedings

were reopened. Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir.

2004). “The Board is required to evaluate whether

the alleged changed circumstances are ‘material’ to an

applicant’s request for asylum. This in turn invites the

Board to determine whether these changes provide

the applicant with a well-founded fear of persecution.”
10 No. 12-1698

Moosa v. Holder, 644 F.3d 380, 385 (7th Cir. 2011). The

Board did not abuse its discretion in arriving at

this conclusion.

The Board found that Zheng did not show that the

documents and regulations she provided from places

other than Zheng’s home village (Xi Bian Village), town

(Ting Jian Town) and city (Fuzhou City) applied to her.

Board Decision at 3. Zheng argues that this is unfair

because the State Department Profile also lacks information that is specific to Zheng’s home village. However,

the “shortcomings of State Department reports” are

considered “ ‘especially germane’ in situations in which

the burden of persuasion has shifted to the government.” Lin v. Holder, 620 F.3d 807, 811 (7th Cir. 2010)

(quoting Galina v. I.N.S., 213 F.3d 955, 959 (7th Cir.

2010). In Zheng’s case, the burden never shifted to the

government. Instead, it was Zheng’s burden to

establish either “past persecution” or that her “subjective fears of sterilization were objectively reasonable.”

Id. Therefore, it was not an abuse of discretion for the

Board to fall back on the information in the State Department Profile when denying Zheng’s petition, and

the Board properly discredited Zheng’s generalized

evidence to the contrary. Chen v. Gonzales, 489 F.3d 861,

862 (7th Cir. 2007) (“affidavits relating personal experiences or tales about sterilizations in Fujian would not

establish that a person in [petitioner’s] position faces a

material risk that this would happen to her. To determine whether an alien faces persecution in a foreign

land, the agency must separate normal from exceptional

events”).
No. 12-1698 11

IV.

Because we find that the Board’s denial of Zheng’s

motion to reopen was not an abuse of discretion, the

petition for review is DENIED.

11-27-12