* This successive appeal has been submitted to the original panel under Operating

Procedure 6(b).  After examining the briefs and the record, we have concluded that oral

argument is unnecessary.  Thus the appeal is submitted on the briefs and the record.  See

FED. R. APP. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted May 19, 2008*

Decided August 19, 2008

Before

MICHAEL S. KANNE, Circuit Judge

         ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 07‐3702

YAN ZHEN YANG,

Petitioner,

v.

MICHAEL B. MUKASEY,

Respondent.

Petition for Review of an Order of the Board

of Immigration Appeals.

No. A77‐340‐208

        

O R D E R

This case is before us for the second time.  Yan Zhen Yang was ordered removed to

her native China.  She twice moved to reopen her removal proceedings, and the Board of

Immigration Appeals twice denied her motion.  We denied her first petition for review, see

Yang v. Gonzales, 216 Fed. App’x. 584 (7th Cir. 2007), and we now dismiss her second,

because we lack jurisdiction to consider it.  

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 07‐3702 Page 2

Yang came to the United States in 2000.  She applied for asylum, withholding of

removal, and protection under the Convention Against Torture, claiming that she feared

persecution because she planned to have several children in violation of China’s one‐child

policy and because she is Christian.  In 2004 an immigration judge denied her application

and ordered her removed, finding that she had not established a well‐founded fear of future

persecution based on her religion or her disagreement with China’s one‐child policy.  The IJ

concluded that Yang, who had given birth to a son in the United States, did not face a

reasonable possibility of sterilization if she returned to her rural village in Fujian province.

The BIA affirmed the decision, and Yang did not petition this court for review.  

In March 2006, nine months after the BIA had issued its decision and while Yang

was pregnant with her second child, she filed her first motion to reopen the proceedings.

She asserted that officials in her hometown were enforcing China’s family planning policy

by forcibly sterilizing citizens who had more than one child.  In May 2006 the BIA denied

the motion as untimely.  The BIA further concluded that, even if Yang had put forward

material evidence of changed country conditions and was thus exempted from the 90‐day

time limitation for filing a motion to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii), she had not

demonstrated prima facie eligibility for asylum because she had not shown a reasonable

likelihood that parents of foreign‐born children would be sterilized in China or that she

would be punished with more than a fine and “pressure” to undergo sterilization.  We

denied her petition for review, concluding that the BIA had not abused its discretion

because she had presented no evidence that conditions in China had worsened for violators

of the one‐child policy.  Yang, 216 Fed. App’x. at 587.

Three  months after we denied her petition for review, Yang filed a second motion to

reopen her case, again claiming that conditions in China had changed such that, if returned,

she would be forcibly sterilized for violating the one‐child policy.  She attached to her

motion several documents purportedly supporting her assertion that conditions in China

had worsened.  She also included her own affidavit recounting conversations with her

mother.  She asserts that, in these conversations, her mother told her that two residents of

her hometown were forcibly sterilized after giving birth to a second child and that, because

the “villager committee” knows that Yang has two sons, Yang “would have to undergo

necessary sterilization procedures” when she returns to China.  In May 2006 the BIA denied

her motion to reopen because it was her second and was filed well outside the 90‐day

deadline.  See 8 C.F.R. § 1003.2(c)(2).  The BIA reasoned that Yang was not exempt from the

number and time limitations because she had not established that conditions in China had

changed.  See id. § 1003.2(c)(3)(ii).  The BIA rejected Yang’s documentary evidence; some of

that evidence, the BIA explained, had been available to Yang at the time of her asylum

hearing in 2004, and the rest concerned the specific situations of other Chinese citizens or

had previously ben rejected by the BIA as insufficient to establish changed country
No. 07‐3702 Page 3

conditions, or was irrelevant.  In particular, the BIA said, Yang’s affidavit was based upon

second‐hand accounts that were not entitled to evidentiary weight.  Moreover, the BIA

reasoned that Yang had not put forward evidence that there was a realistic chance she

would be sterilized.  It also concluded that any “‘moderate’” fines she may be assessed

would not rise to the level of persecution.  Finally, the BIA declined to exercise its discretion

to reopen the proceedings sua sponte.  

In the year and a half since we denied Yang’s first petition for review, we have made

clear that we have no jurisdiction to review the BIA’s discretionary decisions declining to

reopen immigration proceedings unless the petitioner raises a genuine question of law.  See

Huang v. Mukasey, Nos. 07‐2961, 07‐3322, 07‐3673, 07‐3840, 2008 WL 2738067, at *1 (7th Cir.

July 15, 2008); Kucana v. Mukasey, No. 07‐1002, 2008 WL 2639039, at *3 (7th Cir. July 7, 2008).

A question of law can arise if, en route to a decision whether to reopen proceedings, the BIA

misinterprets a statute, regulation, or the Constitution; misreads its own precedent; applies

an incorrect legal standard; or fails to exercise its discretion at all.  See Huang, 2008 WL

2738067, at *1.  But Yang points to no error in the BIA’s application of the law.  Instead, she

argues that it abused its discretion by addressing an argument she says she did not raise

and by determining that she did not establish that conditions in China had worsened for

mothers who violate the one‐child policy.  Thus, her petition for review must be

DISMISSED for lack of jurisdiction.