In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2961

LI FANG HUANG,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

No. 07-3322

MING DUNG, also known as MING DONG,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

No. 07-3673

XIU QIN ZHENG, also known as XUIQIN ZHENG,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.
2 Nos. 07-2961, 07-3322, 07-3673, 07-3840

No. 07-3840

XUE JIN LI,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petitions to Review Orders of the

Board of Immigration Appeals.

Nos. A77-651-879, A-74-762-766, A77-847-340, A78-125-604.

____________

ARGUED JULY 9, 2008—DECIDED JULY 15, 2008

____________

Before POSNER, SYKES, and TINDER, Circuit Judges.

POSNER, Circuit Judge. We have consolidated for decision four petitions to review orders by the Board of Immigration Appeals denying petitions to reopen removal

proceedings. The petitions to review present overlapping

and to a degree identical issues.

In Kucana v. Mukasey, No. 07-1002, 2008 WL 2639039

(7th Cir. July 7, 2008), this court held that we do not have

jurisdiction to review petitions to reopen removal proceedings, including proceedings in which the alien

sought asylum, unless the petition to review the Board

of Immigration Appeals’ denial of reopening presents a

question of law. The facts that the Board finds, and the

reasons that it gives, en route to exercising its discretion

to grant or deny a petition to reopen a removal pro-
Nos. 07-2961, 07-3322, 07-3673, 07-3840 3

ceeding, and the discretionary decision itself, cannot be

reexamined by a court, whether for clear error, lack of

substantial evidence, abuse of discretion, or any other

formulation of a ground for reversing an administrative

decision; all the court can decide is whether the Board

committed an error of law. See also Emokah v. Mukasey,

523 F.3d 110, 119 (2d Cir. 2008). That will usually be a

misinterpretation of a statute, regulation, or constitutional

provision. Kucana v. Mukasey, supra, at *2-4; Zeqiri v.

Mukasey, 529 F.3d 364, 369 (7th Cir. 2008); Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir. 2006); Chen v. U.S. Dep’t of

Justice, 434 F.3d 144, 153 (2d. Cir. 2006); Almuhtaseb

v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). But it could

also be a misreading of the Board’s own precedent, as

in Ssali v. Gonzales, 424 F.3d 556, 564-66 (7th Cir. 2005),

or the Board’s use of the wrong legal standard, as in

Azanor v. Ashcroft, 364 F.3d 1013, 1019-21 (9th Cir. 2004),

or simply a failure to exercise discretion or to consider

factors acknowledged to be material to such an exercise.

Kucana v. Mukasey, supra, at *4; see also Hanan v. Mukasey,

519 F.3d 760, 764 (8th Cir. 2008) (“wholesale failure to

consider evidence”).

The category of reviewable determinations is illustrated

by a case this court decided the day after the Kucana

decision. Lin v. Mukasey, No. 07-3719, 2008 WL 26252776

(7th Cir. July 8, 2008). A Chinese woman who gave birth

to two children in the United States sought asylum on

the ground that if returned to China she would be forced

to undergo sterilization for having violated China’s

“one child” policy. Her application for asylum was rejected and she was ordered removed to China. She remained in the United States illegally but later sought to

reopen her removal proceeding on the basis of changed
4 Nos. 07-2961, 07-3322, 07-3673, 07-3840

conditions in China—namely, more vigorous enforcement of the one-child policy than when she had been

ordered removed, creating a grave risk that she would

be subjected to sterilization. In the course of denying

the petition, the Board made a statement that the government’s lawyer represented to us at argument meant

that if the sanction for violating the one-child policy is a

fine (called a “social compensation fee”), there can be no

inference of persecution even if the fine is so steep that

the violator will be unable to pay it and in consequence

will be ordered sterilized. Such a view would be inconsistent with (and a misreading, rather than a deliberate,

reasoned rejection of) countless Board and court decisions and an unreasonable interpretation of the federal

statute that makes “resistance to a coercive population

control program” a ground for asylum. Id. at *1-2; 8 U.S.C.

§ 1101(a)(42)(B). And so the Board’s denial of the petition to reopen was not insulated from our review.

One of the cases before us today, Li’s case, No. 07-3840,

is almost identical to Lin, but with the critical difference

that rather than suggesting that forced sterilization is not

persecution as long as it just backs up the “social compensation fee,” the Board found that there was no indication that the fee to which Li might be subjected if she

were returned to China and punished for violating the

one-child policy would be so stiff as to place her in

danger of being forced to undergo sterilization as a sanction for failing to pay it. The Board did not intimate, as

it had in Lin, that so long as forced sterilization is used

merely against people who fail to pay the fee for having

more than one child, it is not persecution. Li is in the

position therefore of merely disagreeing with the

weight that the Board placed on the various items of
Nos. 07-2961, 07-3322, 07-3673, 07-3840 5

evidence (country reports, provincial regulations, an

unauthenticated notice from the government of Li’s

village, etc.) en route to its discretionary denial of the

petition to reopen. No question of law is presented. We

therefore have no jurisdiction to decide whether the

petition should have been granted.

In contrast, Zheng’s case, No. 07-3673, involves an

arguable error of law. He had come to the United States

from China in 1999 and had sought asylum on the

ground that he had been persecuted for belonging to an

underground Catholic church and for opposing China’s

“one child” policy; he claimed that his wife had been

forced to have an abortion when she became pregnant

a second time. (Whether the husband of a woman forced

to have an abortion is automatically entitled to asylum,

or must show that he opposed the one-child policy,

has divided the circuits. Compare Shi Liang Lin v. U.S.

Dep’t of Justice, 494 F.3d 396 (2d Cir. 2007) (en banc),

with cases cited at id. at 400 n. 4. But Zheng claims to

have opposed the policy.) The immigration judge denied

asylum after an evidentiary hearing in 2001. A letter

purporting to be from Zheng’s former employer in

China said that he was being fired because his wife

had had a second child, and this contradicted Zheng’s

claim about the abortion. And the letter was dated after

Zheng arrived in the United States, although he testified

that it had been given to him in China when, and in

explanation for why, he was fired. He submitted an

abortion certificate but the immigration judge found

that China issues such certificates only when the abortion

is voluntary. There were other contradictions and anomalies and in addition Zheng was unable to answer elementary questions about Catholicism (such as what
6 Nos. 07-2961, 07-3322, 07-3673, 07-3840

communion is) and admitted never having attended a

Catholic service in the United States. The immigration

judge was skeptical that Zheng had ever been a Catholic,

and rejected the claim that he had been persecuted either

on account of religion or the one-child policy.

In 2007 Zheng moved to reopen the removal proceeding, primarily on the ground of changed country

conditions—China’s more vigorous enforcement of the

one-child policy after 2001, which we discussed in Lin. In

support Zheng presented affidavits from himself and

his wife, along with purported letters from an underground Catholic church in China and his village government that indicate that if returned to China he will

be punished for having joined the church. The affidavits

state that his wife, who remains in China, has been

beaten in an effort to induce him to return to China to

face the music. The Board discounted the evidence presented in support of the petition because the claim of

persecution had been rejected by the immigration judge

in the removal proceeding.

The fact that evidence presented in support of a claim

of asylum is rejected as noncredible has been held not to

foreclose the reopening of the removal proceeding on a

separate ground. Gebreeyesus v. Gonzales, 482 F.3d 952,

955 and n. 3 (7th Cir. 2007); Mansour v. INS, 230 F.3d

902, 908 (7th Cir. 2000); Guo v. Gonzales, 463 F.3d 109,

114 (2d Cir. 2006); Guo v. Ashcroft, 386 F.3d 556, 562 (3d

Cir. 2004); Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir.

2001). Those holdings are rulings of law, and if the Board

has rejected them, by holding that an immigration judge’s

refusal to credit any part of an asylum applicant’s testimony precludes reopening even if the disbelieved testimony is at once inconsequential and unrelated to the
Nos. 07-2961, 07-3322, 07-3673, 07-3840 7

grounds presented in the petition to reopen, its rejection

would present a question of law that we would have

jurisdiction to consider. But all the Board did in Zheng’s

case was refuse to allow his petition to reopen to be used

as a vehicle for reopening credibility issues. The immigration judge had not ruled that discrimination against

Zheng on the basis of his belonging to an underground

Catholic church could not amount to persecution, and

this would be consistent with his facing persecution if

returned to China, because the government has intensified its opposition to such churches. The immigration

judge had simply disbelieved Zheng’s testimony that

anything had happened to him because of his belonging

to a Catholic church, and even doubted whether Zheng

is really a Catholic.

Since Zheng had been found to have lied at the hearing

about both his claims, religious and population-policy

persecution, he would have had to present evidence in

support of reopening that was in no way dependent on

his discredited credibility in order to establish a wellfounded fear of persecution on the same grounds if he

is returned to China. Guo v. Ashcroft, supra, 386 F.3d at

562; cf. Guo v. Gonzales, supra, 463 F.3d at 114. His own and

his wife’s affidavits, and unauthenticated and possibly

fraudulent documents purportedly from the church and

the village government, were not evidence that could be

assumed to be uncontaminated by his demonstrated

propensity to lie to obtain asylum. The Board is not required to ignore such a propensity in assessing such

evidence, and so its decision in Zheng’s case is within its

discretionary authority and therefore unreviewable by us.

We turn to Huang’s case, No. 07-2961. Huang, a

Chinese woman, entered the United States in 1999 on false
8 Nos. 07-2961, 07-3322, 07-3673, 07-3840

documents. In 2002 she applied for asylum, claiming

that she had fled China because the government, in an

effort to induce her to marry a man whom she didn’t

want to marry, had forced her to have an abortion (she

was pregnant by her boyfriend) and had seized her family’s land. She failed to appear at her hearing before an

immigration judge and was ordered removed. In 2006

she filed a motion to reopen, arguing that she had missed

the hearing because she had not known when and where

it would be held; earlier, however, she had said that

she had not attended because she was afraid that she

would be arrested and removed if she did. Later she

changed her story back to the original one. The Board

denied the petition, and the following year she filed a

second petition to reopen, this one on the ground that

she had received ineffective assistance at her first

hearing. She claimed that she had missed her hearing

because of a stomachache and that her then lawyer had

failed to explain this to the immigration judge.

The Board denied the second petition as untimely. The

deadline for the filing of a petition to reopen (180 days

in Huang’s case, 8 U.S.C. §§ 1229a(b)(5)(C)(i), (c)(7)(C),

from the date of the final order of removal, Pervaiz v.

Gonzales, 405 F.3d 488, 490 (7th Cir. 2005); Guerrero-Santana

v. Gonzales, 499 F.3d 90, 92-93 (1st Cir. 2007)) can be equitably tolled because the statutory deadline is not jurisdictional. Pervaiz v. Gonzales, supra, 405 F.3d at 490, and

cases cited there. But the Board refused to allow

Huang’s very late filing of a second petition because it

disbelieved the stomachache story. As in Li’s case, no

question of law is presented by the petition to review

the denial of reopening, and so we have no jurisdiction.

Had the Board refused to reopen the removal proceeding because it did not think that Huang had re-
Nos. 07-2961, 07-3322, 07-3673, 07-3840 9

ceived ineffective assistance from her lawyer, rather than

because the petition to reopen had been untimely, the

petition for review might be thought to present a question

of law. Or might not; the issue is treated inconsistently

in our cases. Compare Sanchez v. Keisler, 505 F.3d 641, 647-

48 (7th Cir. 2007); Kay v. Ashcroft, 387 F.3d 664, 676 (7th

Cir. 2004), indicating “yes,” with Patel v. Gonzales, 496

F.3d 829, 831 (7th Cir. 2007), indicating “no,” and NativiGomez v. Ashcroft, 344 F.3d 805, 807-09 (7th Cir. 2003), and

Stroe v. INS, 256 F.3d 498 (7th Cir. 2001), both leaning

toward “no.” We need not try to eliminate the inconsistency in this case.

That leaves Dung’s case, No. 07-3322. It is another onechild case, indistinguishable from Li except that Dung

further argues that he should be allowed to file a second asylum application after the first is denied, without

having to file a petition to reopen. As he recognizes,

we rejected the identical contention in Cheng Chen v.

Gonzales, 498 F.3d 758 (7th Cir. 2007), and he has presented

no reason to suggest that our decision should be reexamined.

The petitions in Li and Huang are dismissed for want

of jurisdiction. The petitions in Zheng and Dung, which

complain about both the Board’s exercise of its discretion

to deny a petition to reopen and alleged errors of law

committed by the Board, are dismissed in part and denied

in part. Saintha v. Mukasey, 516 F.3d 243, 249-53 (4th

Cir. 2008); Emokah v. Mukasey, supra, 523 F.3d at 119.

USCA-02-C-0072—7-23-08