*

We granted the appellant’s motion to waive oral argument. Thus, the appeal

is submitted on the briefs and the record. See Fed. R. App. P. 34(f).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 14, 2007*

Decided February 14, 2007

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 06-2648

YAN ZHEN YANG,

Petitioner-Appellant,

v.

ALBERTO R. GONZALES, Attorney

General of the United States,

Respondent-Appellee.

Petition for Review of a Decision of

the Board of Immigration Appeals

No. A77-340-208

O R D E R

Yan Zhen Yang, a native and citizen of China, entered the United States in

November 2000 without valid travel documents. The following month, she was

served with a Notice to Appear charging her with removability under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I). Yang sought and was granted numerous continuances so she

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 06-2648 Page 2

could hire an attorney. In February 2001, she was found removable at a hearing

before an immigration judge in California, and she applied for asylum, withholding

of removal, and protection under the Convention Against Torture. Yang premised

her claims on a fear of persecution based on her Christian religion and her

opposition to China’s family planning policies. At the time, she was unmarried and

had no children, but she stated that she feared she would be subject to forced

abortion and sterilization if she married and had children in the future. Before a

hearing on the merits of her applications could be held, Yang moved to New York,

and later to Indiana. She also met and married another Chinese citizen. Her

asylum hearing was postponed yet again due to her pregnancy; in February 2004,

she gave birth to the couple’s first child, a son. 

Yang’s hearing was finally held in July 2004. She testified primarily about

her fear of persecution on account of her Christian beliefs, although she added that

her mother was sterilized after having five children and she feared the same thing

could happen to her. The IJ denied all forms of relief, and Yang appealed. The

Board of Immigration Appeals summarily affirmed the IJ’s decision. Yang did not

file a petition for review, but more than seven months later, in March 2006, she

moved to reopen. Although the motion was untimely, she argued that evidence of

changed conditions in China nevertheless warranted reopening, see 8 C.F.R.

§ 1003.2(c)(3)(ii). Yang asserted that conditions in China had changed due to the

recent enforcement of the People’s Family Planning Law (PFPL) in her home

province of Fujian. According to Yang, the law increases the punishment for

violating the one-child rule from economic sanctions to “more severe criminal

charges.” Yang, who was pregnant with her second child at the time she filed her

motion, argued that she had a well-founded fear of “future birth control

persecution.” In support of her motion, she submitted numerous documents

including the text of the PFPL and a letter from her mother in China describing the

increased enforcement of the law, including the forced sterilizations of two

neighbors. Yang also relied on a transcript of the 2002 Congressional testimony of

the late John Shields Aird, formerly a demographer from the United States Census

Bureau, and a generalized affidavit he prepared on behalf of Chinese asylum

seekers in 2004. Aird’s affidavit focuses on China’s policy toward parents of

U.S.-born children and suggests that foreign-born children are counted under

family planning rules, subjecting the parents to harsh penalties.

The BIA denied Yang’s motion. It noted that Yang had supplied “some

evidence” of changed country conditions but nevertheless failed to demonstrate

prima facie eligibility for asylum to warrant reopening her application. Relying on

its recent decision in In re C-C, 23 I. & N. Dec. 899 (BIA 2006), the BIA stated that

there was no persuasive evidence that Chinese citizens who have children abroad

and return to China are forced to undergo sterilization upon their return. In

particular, the Board found the State Department reports more persuasive than Dr.

Aird’s testimony on the subject of forced sterilization because official government
No. 06-2648 Page 3

policy prohibits coercion and Aird supplied “no specific evidence that returnees have

been subjected to forced surgeries.” Acknowledging a likelihood that Yang would

face economic sanctions and a possibility that she would be “pressured” to undergo

sterilization, the BIA concluded that her evidence did not demonstrate a “realistic

chance” that she would be physically forced to submit to sterilization. The BIA

concluded, therefore, that even if the motion to reopen established changed

circumstances, Yang was not prima facie eligible for asylum. Yang seeks review of

that decision.

 In general an alien may file one motion to reopen within 90 days of the BIA’s

decision. See 8 C.F.R. § 1003.2(c)(2). However, the normal restrictions do not apply

if the motion to reopen relies on “changed circumstances arising in the country of

nationality.” See id. § 1003.2(c)(3)(ii). To support reopening on this ground, the

alien must provide evidence that is “material and was not available and could not

have been discovered or presented at the previous hearing.” Id. We review the

BIA’s decision to deny the motion to reopen under a deferential abuse-of-discretion

standard. See Pelinkovic v. Ashcroft, 366 F.3d 532, 536 (7th Cir. 2004). 

Yang concedes that her motion to reopen was untimely but asserts that she

can establish a material change in circumstances in China with the evidence she

submitted about the PFPL, including Dr. Aird’s expert testimony. She further

contends that the BIA mischaracterized her argument as a contention that the

births of her children constituted changed circumstances. Finally, she argues that

she is prima facie eligible for asylum and withholding because she demonstrated a

well-founded fear of forcible abortion or sterilization if she is returned to China.

We conclude that the BIA did not abuse its discretion in denying Yang’s motion

to reopen. First, we are not persuaded that the enactment of the PFPL in 2002

demonstrates that conditions in China have materially changed since Yang was last

before the BIA. The law was passed two years before Yang’s original asylum

hearing, and she did not mention it then. See Krougliak v. INS, 289 F.3d 457, 460

(7th Cir. 2002) (upholding denial of motion to reopen where evidence “was in

existence at the time of [petitioner’s] asylum hearing”). She supplies no evidence to

support her assertion that local officials began enforcing the law only in the months

before she filed her motion in March 2006. Moreover, the PFPL says nothing about

sterilization as a method of enforcing population control. 

The Aird affidavit likewise does not support the argument that population

control measures are more oppressive now. We have held that the affidavit, which

relies largely on sources from the 1990s, is not evidence of changed circumstances. 

See [Bao Hua] Lin v. Gonzales, 435 F.3d 708, 711 (7th Cir. 2006). And, in a case

with facts quite similar to those presented here, the Second Circuit noted that the

Aird affidavit had limited relevance because it “was not prepared specifically for
No. 06-2648 Page 4

petitioner and is not particularized as to his circumstances.” See Wang v. BIA, 437

F.3d 270, 274 (2d Cir. 2006).

The birth of Yang’s children in the United States also does not support the

existence of changed circumstances. See Zhao v. Gonzales, 440 F.3d 405, 407 (7th

Cir. 2006). We have held that such a change in “personal circumstances” does not

trigger the statutory exception for additional, untimely motions to reopen. Id. at

407. Yang insists that the births of her children are not a basis for her motion, but

this objection rings hollow in light of her contention that, now that she has two

children, she “will almost certainly be deemed to have violated the PFPL” and

punished for it if returned to China. Asylum is available to those who have a wellfounded fear of persecution based on a violation of, or opposition to, China’s family

planning policies, but “[i]t is quite a different situation . . . where a petitioner is

seeking to reopen [her] asylum case due to circumstances, entirely of [her] own

making after being ordered to leave the United States.” Wang, 437 F.3d at 274.

 Because we conclude that the denial of the motion to reopen was not an abuse of

discretion, Yang’s petition for review is DENIED.