NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 08a0629n.06 F iled: October 17, 2008 No. 07-4038 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
HUI YAN WANG, Plaintiff-Appellee , v. MI CHAEL

B. MUK ASEY, Attorney Gene ral of the United States, De fe nd ant- Ap pe lla

nt. )

) ) ) ) ) ) ) ) ) ) ON PET I TI ON F OR REV I EW F RO M A FI NAL ORDER OF THE BO ARD OF IM M IG RA T IO N A P P E A LS

B e fo re : B AT CH EL DE R, C L AY and SUT TO N, Cir c uit

Judg e s. SUTTON, Circuit J udg e. Hui Yan Wang, a native and citizen of China, seeks re view of a de c isi on by the B oa rd of I mmi g ratio n App e a ls d e nying he r s uc c e ssi ve a sylum a pp lic a tio n. B e c a

us e she wa s barr ed fr om pr esenting a succe ssive petition, a nd beca use the Boa

rd corr ectly

deter mined that her pe tition would be numerica lly barr ed if construed as a motion to reope n, we deny the petition for r eview.
I.
Bor n in China, W angsoug ht admission to enter the United States in 2000. Admitting that she wa s removea

ble due to her lac k of docume ntation, she reque sted asylum, alleg ing that she fea red that Chinese authorities would sterilize her if she re turned. Af ter a 2003 hear ing, the I mmigration J udg e denied her petition, finding that he r cla ims of persec ution were “deliber ately fabr icated” and that there was “no evidenc e” that she would be persecute d upon her return. J A 74–75. The B oard adopted a nd aff irmed this decision in 2005, and Wang did not ask this C ourt to review it. W ang filed a motion to reope n her c ase later that y ear , which the B oard de niedNo. 07-4038

W ang v. Muk

asey

2 On Marc h 5, 2 0 0 7, Wang f iled a docume nt captioned “ Motion to R eopen a nd Request for New H ear ing to Allow Submission of a Newand Subsequent Asy lum Application,” J A 4, asser ting that she had g iven birth to three c hildren in the United States, which she believed would incre ase the likelihood that Chi nese a

uthorities would steriliz e her if she returne d to that country . Wang insisted that this filing, despite its ti tle, was “ not a motion to reopen” but rather “a r equest for

a new hear ing to allow s ubmission of a ne w asylum application.” J A 4. The B oard ne verthe less treated the filing
as a se cond motion to reopen a nd held that it was bar

red by 8 C.F.R. § 1003.2(c) (2), g iven Wang ’s failure to show chang ed countr y circ umstances.
II.
I n her pe tition for review , Wang argues t hat t he B oard e rre d when it deter mined that her 2007 filing w as a “ motion to reopen” w ithin the meaning of 8 C.F.R. § 1003.2(c), J A 2 , rather than a
su c c e ssi ve a sylum

a pp lic a tio n. She argue s th a t, b y fi lin g a ne w a pp li cat io n unde r 8 U. S.C. § 1158(a) (2 )( D) , she ca

n evade the normal limits on successive motions to reopen a sy lum proce eding s, see 8 C.F.R. § 1003.2(c) . Wang is not entitled to relief for at least two rea sons. First, Wang ’s succe ssive petition f or asylum is proce durally barr ed beca use she ha s not filed a motion to reope n. “[Sections] 1158(a) (2)( D) and 1229a(c )(7) (C)(ii) of T itle 8 . . . require [] an alien subject to a fina l order of remov al for 90 day s or more to make a succ essful motion to reopen he r proce eding s prior to c onsideration of a succ essive application for asylum.” Zhang v. Mukase y , __ F.3d ___, No. 07–3355, 20 0 8 W L 4 4 8 9 2 6 8 , at *8 (6th Cir. Oct. 8, 2008). Wanghas not made a
succe ssful motion t o reope n, so her suc cessive pe tition i s invalid.
No r d id t he B oa rd e rr by de te rm ini ng that Wang wa s not en tit le d to re op e n he r p ro c e e din g s. I n h e r f ili ng , s he e xpre ssl y

state d th a t sh e did

no t w ish to r e op e n her for mer cas e . JA 4 (“ Th isNo. 07-4038

W ang v. Muk

asey

3 reque st
. . . is not a mot ion to reope n . . . and should not be construe d as such a motion.”). At any rate , she can preva il on a second motion to reope n only if she ca n show that it is “based on c hang ed circ umstances a

rising in” China. 8 C.F.R. § 1003

. 2 (c) (3)( ii). But Wang does not argue that conditions ha

ve chang ed in China; she a rg ues only

that her own c on dit ion s h a ve c ha ng e d b e c a us e she has g iven birth to additional children. I t is the r are individual for whom a c hang e in individual circ umstances will prompt a c hang e in a c ountry ’s circ umstances. See H addad v. Gonzales , 437 F.3d 515, 517–18 (6th Cir. 2 0 0 6 ). T h e B oard thus cor rec tly observe d that her pe tition, i f construe d (ag ai n s t h er wi ll) as a suc cessive motion to reope n, still would be bar red by her f ailure to show a chang e of c ircumstance s in China. Second, adding to Wang’ s problems, her pe tition i ndepende ntly is barre d at least in par

t by h er p ri o r frivolous asylum application. After her 2003 he aring , the I mmigration J udg e found “numer ous material inconsistencies” betwee n Wang’ s application for asylum and her subse quent testimony : She claimed that her fathe r had die d in a fishing accident but later a dmitted that both her pa re nts were a liv e ; sh e c la ime d th a t Ch ine se a uth or iti e s h a d f

or c e d h e r t o h a ve an e xami natio n to deter mine whether

she wa s preg nant but later denied having underg one any preg nancy

testing; a nd sh e c la ime d th a t “ [a]lt

ho ug h [Wang and he r bo y fr ie nd ] w e re inn oc e nt in C hin a , n owwe are a ble to reunit[e] and Iam truly

preg nant” but later

admitted that her boy friend rema ined in China, J A 74. Even wor se, duringher credible- fea r i nterview , Wang c laimed that “[t] hey took me awa

y and made me have an abor

tion,” J A 99, but she admit ted during her he aringthat she had not be en pre g nant at the time.
Ba sed on these inc onsistencies, the Immigration J udg e dete rmined t h at Wang ’s asylum application wa s based on “ deliberately fabr icated” claims of per secution, JA 74, and this finding wa s later adopted by the Boa

rd. That means Wang is “ perma nently ineligible for [asylum] benef its,” 8No. 07-4038

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4 U. S.C. § 1 15 8( d) (6 ); see 8 C. F .R. § 1 20 8. 20 , p ro mpt ingthe B oa rd c or rectly to f ind that Wangis

“ s t a tu t o r i l y

p r e c l u d e d

f r o m a p p l y i n g f o r an y f o r m o f r e l i e f

o t h e r t h anw i t h h o l d i n g o f

r e m o v a l , ” JA 3 n.1. Acc ording ly , to the ex tent Wang means t o argue that she i s elig ible for a sy lum (as opposed to the hi g her showing required f or withholding of

remova l, see Fang Huang v. M ukasey , 523 F.3d 64 0, 65 0– 51 (6 th C ir . 2 00 8) ), he r p e tit ion is s ub je c t to thi s se c on d b ar a s w e ll.
III

. For these re asons, we de ny

the petition for re view.