2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2010

Zheng v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3582

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-3582

___________

FANG RONG ZHENG,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A095-367-172)

Immigration Judge: Honorable Henry S. Dogin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 24, 2010

Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

(Opinion filed: March 25, 2010)

 

OPINION

 

PER CURIAM

Fang Rong Zheng petitions for review of the Board of Immigration Appeals’

(“BIA”) denial of her motion to reopen deportation proceedings and file a successive
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asylum application. For the reasons that follow, we will deny the petition. 

I.

Fang Rong Zheng is a 32-year-old citizen of China, who entered the United States

without being admitted or paroled in March 2001. In March 2002, the Immigration and

Naturalization Service filed a Notice to Appear and placed Zheng in removal

proceedings. Zheng conceded removability and applied for asylum, withholding of

removal, and relief under the Convention Against Torture. In support of her application,

she argued that because of the birth of her child in the United States, in violation of

China’s family planning policy prohibiting pregnancy out of wedlock, she feared that she

would be forced to have an abortion and undergo sterilization if she became pregnant

again upon returning to China.

In March 2004, after a hearing on the merits, the Immigration Judge (“IJ”) denied

Zheng’s application. Finding discrepancies and omissions between Zheng’s asylum

application and her testimony, the IJ ultimately concluded that Zheng was not credible. 

Zheng appealed the IJ’s decision and, on July 21, 2005, the BIA affirmed the IJ’s

decision. Zheng did not file a petition for review of the BIA’s decision with this Court.

Over seventeen months later, on January 11, 2007, Zheng filed with the BIA a

motion to reopen and to file a successive asylum application. She asserted that her

motion was exempt from the ninety-day time restriction governing motions to reopen

because her motion was based on the “changed circumstances” exception in INA §
We have no jurisdiction to review the BIA’s decision to decline to invoke its sua 1

sponte authority to reopen a case under 8 C.F.R. § 1003.2(a). See Calle-Vujiles v.

Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003) (holding that such authority “is committed to

[the agency’s] unfettered discretion. Therefore, the very nature of the claim renders it not

subject to judicial review”) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999). 

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208(a)(2)(D). Alternately, she requested that the BIA reopen her case sua sponte under

the discretion granted to it under 8 CFR § 1003.2(a). Specifically, Zheng contended that

if she returned to China, she would be subject to sterilization under China’s one-child

policy because she had given birth to a second child since her removal hearing. 

The BIA denied her motion to reopen based on its determinations that her motion

was untimely and that the evidence she submitted — namely the birth of her second child

— did not reflect changed circumstances in China or exceptional circumstances such that

reopening was warranted. The BIA also concluded that the evidence Zheng submitted did

not reflect changed circumstances in China to warrant exercising jurisdiction to consider

her successive asylum application. Zheng timely petitioned this Court to review the

BIA’s decision.

II.

We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We

review the BIA’s findings of fact for substantial evidence and the denial of the motion to

reopen for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.

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2002). The BIA’s decision is entitled to “broad deference.” Ezeagwuna v. Ashcroft, 325

F.3d 396, 409 (3d Cir. 2003). Thus, in order to succeed on the petition for review, Zheng
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must show that the BIA’s discretionary decision was arbitrary, irrational, or contrary to

law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (quotation omitted). Zheng has

failed to make such a showing.

III.

The BIA denied the motion to reopen because it was untimely and because Zheng

did not meet the exception for changed circumstances under 8 C.F.R. § 1003.2(c) or

exceptional circumstances under 8 CFR § 1003.2(a). The motion was undisputably

untimely as it was filed over seventeen months after the BIA denied Zheng’s appeal. See

8 C.F.R § 1003.2(c)(2) (motions to reopen must be filed within 90 days of a final order). 

Zheng did not contest the tardiness of her motion; instead she asserted that it fell within

the exception of 8 C.F.R. § 1003.2(c)(3)(ii), which permits reopening “based on changed

circumstances arising in the country of nationality . . . if such evidence is material and

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

hearing.”

In support of reopening, Zheng submitted (1) an affidavit; (2) evidence of her two

children’s births in 2001 and 2006; (3) a 2005 Country Report for China; (4) Fuzhou City

regulations on family planning, dated April 1996; (5) 2004 testimony of Assistant

Secretary of the State Department; and (6) an April 2006 New York Times article

discussing individuals who were returned to China and forcibly sterilized. (See A.R. 9-

206.) The BIA found that her evidence — namely the birth of her two children in the
We note that in Zheng’s motion to the BIA, she submitted evidence related to 2

conditions in China, but she did not argue that her motion was based on changed

circumstances in China, instead conceding that the motion was based on her changed

personal circumstances. Thus, we deny the petition for review, despite the BIA’s cursory

and conclusory denial. See Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008)

(holding that the BIA must explicitly consider any country conditions evidence that

materially bears on an applicant’s claim). 

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United States — did not constitute “changed circumstances arising in the country of

nationality” as required by 8 U.S.C. § 1229a(c)(7)(C)(ii) and 8 C.F.R. § 1003.2(c)(3)(ii)

to waive the ninety-day deadline for motions to reopen. This conclusion comports with

our precedent, see Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir. 2009), and we find that

the BIA did not abuse its discretion in denying Zheng’s untimely motion to reopen.2

Zheng’s argument that she is entitled to file a successive asylum application is also 

foreclosed by our decision in Liu, 555 F.3d at 150-51. We have held that in considering

an application to file a successive asylum application, the BIA should apply 8 U.S.C. §

1229(a)(7)(C)(ii), which requires evidence to demonstrate “changed country conditions

arising in the country of nationality.” Id. Zheng argues that such an interpretation

violates the equal protection clause of the Fifth Amendment, in that it holds aliens who

have already submitted a prior asylum application to a more stringent standard than

otherwise similarly-situated aliens who have never filed an asylum application. In Liu,

we acknowledged Zheng’s argument, see id. at 151; however, we found that to interpret 8

U.S.C. § 1158(a)(2)(B) otherwise would circumvent 8 U.S.C. § 1229a(c)(7)(A) and

“would not honor Congress’ purpose in the INA to avoid abuse of the system.” Id. 
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For the above reasons, we will deny the petition for review.