United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1904

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Zhong Qin Zheng, *

*

Petitioner, *

*

v. * Petitions for Review of an Order

* of the Board of Immigration Appeals.

Michael B. Mukasey, Attorney *

General of the United States, *

*

Respondent. *

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Submitted: December 14, 2007

Filed: April 29, 2008

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Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

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LOKEN, Chief Judge.

Zhong Qin Zheng, a native and citizen of the People’s Republic of China,

petitions for judicial review of a decision by the Board of Immigration Appeals (BIA)

denying Zheng’s second motion to reopen his removal proceedings. The motion

included a request that Zheng be permitted to file a successive asylum application.

The BIA held that the second motion to reopen was untimely and number-barred, that

an alien under a final order of removal must successfully reopen before a successive

asylum application may be considered, and that Zheng failed to show changed country

conditions in China, a showing that must be made before an untimely or numberbarred motion to reopen may be granted. “Because motions to reopen are disfavored,
1

For asylum purposes, forced abortion and forced sterilization constitute

persecution on account of political opinion. See 8 U.S.C. § 1101(a)(42)(A).

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our review for abuse of discretion is highly deferential.” Zine v. Mukasey, 517 F.3d

535, 542 (8th Cir. 2008). Applying this deferential standard, we deny the petition for

review.

Zheng entered the United States without valid entry documents in August 2000

and filed a timely application for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT). At the asylum hearing, he testified that he began

practicing Falun Gong in his village in Fujian Province in January 1999, that the

Chinese government banned the practice of Falun Gong in April 1999, and that he fled

China in July 2000 after others in his local group were arrested and his mother

reported that a summons to appear at the local police station had been delivered to

Zheng’s home. In support of this claim of political persecution, Zheng submitted two

documents allegedly received from his mother in China after he arrived in the United

States, a summons and an arrest warrant. The immigration judge found that Zheng’s

testimony “considered in its entirety, appears exaggerated, false, and not credible.”

In particular, the IJ found that the second document Zheng received from his mother

“appears to be so exaggerated as to not only be unreliable, but also impeaches

[Zheng’s] story.” On appeal, the BIA affirmed these credibility findings and the

denial of all relief. Zheng did not petition for judicial review of this final agency

action. Instead, he filed a motion to reopen the proceedings based solely upon his

alleged Falun Gong activities, which the BIA denied as untimely in July 2004.

Zheng filed his second motion to reopen in November 2006, seeking to file a

successive asylum application asserting for the first time that he has a well-founded

fear of forced sterilization if returned to China because of the birth of his second child

in the United States in August 2006 and an alleged increase in coercive enforcement

of China’s one-child policy.1

 In support of this claim of changed country conditions,
2

As Judge Posner commented in Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.

2007), “It makes no sense to allow an alien who manages to elude capture by the

immigration authorities for years after he has been ordered to leave the country, and

has exhausted all his legal remedies against removal, to use this interval of

unauthorized presence in the United States to manufacture a case for asylum.” 

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Zheng submitted (i) an affidavit stating that family and friends in China have told him

that “in the past year, the government has increased the use of forced abortions and

sterilization;” (ii) a purported affidavit from his mother stating that Zheng’s aunt and

another neighbor were forcibly sterilized in 2005 after the birth of second children,

that there “are many such examples in our hometown,” and that village officials told

her “they were already aware” that Zheng had two children in the United States and

“he would be requested to be sterilized” if he returned; and (iii) the U.S. State

Department’s 2005 Country Report on Human Rights Practices for China reporting

“continued . . . sporadic reports” of coercion and violation of citizen rights, and that

where a couple had two children, “one parent was often pressured to undergo

sterilization” but “enforcement varied.” 

In denying the motion to reopen, the BIA first noted that the birth of Zheng’s

two children in the United States was a change in personal circumstances. Such a

change may warrant acceptance of a successive asylum application filed during the

pendency of removal proceedings under 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R.

§ 1208.4(a)(4)(i), but it is not a change in country conditions warranting the grant of

an untimely or number-barred motion to reopen under 8 U.S.C. § 1229a(c)(7)(C)(ii)

and 8 C.F.R. § 1003.2(c)(3)(ii). We subsequently upheld this interpretation of the

statutes and regulations in Wen Ying Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.

2007).2

 Turning to Zheng’s showing of changed conditions or circumstances in China

since his October 2002 asylum hearing, the BIA concluded: 

[T]he evidence reflects conditions substantially similar to those that existed at

the time of his hearing, with the government officially prohibiting the use of

force to compel persons to submit to abortion or sterilization, despite some
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reports of coercion by local authorities, and generally attempting to enforce

compliance with the one-child policy through the use of economic incentives

and sanctions and other administrative measures. . . . The mere existence of a

policy under the local regulations of sterilization if a couple has two children

does not demonstrate that such policy would be enforced in Fujian Province by

physical coercion. This policy existed at the time of the respondent’s hearing,

and reports of some recent instances of coercion are no different from such

reports at the time of the hearing below. The respondent’s focus on reported

forced sterilizations that occurred in Shangdong Province in 2005 are not

relevant to his claim, without some evidence that Fujian Province likewise has

increased its use of such practices in violation of official policy. 

On appeal, Zheng emphasizes that the BIA denied his motion to reopen without

expressly considering his mother’s affidavit presenting evidence of recent forced

sterilizations in Fujian Province. Therefore, he argues, the decision is contrary to

Yang v. Gonzales, 427 F.3d 1117 (8th Cir. 2005), and Feng Ying Zheng v. Gonzales,

415 F.3d 955 (8th Cir. 2005), cases in which we remanded asylum denials because the

BIA relied on State Department reports without fully considering the aliens’ evidence

that family members in Fujian Province were subjected to forced sterilizations or

abortions for violating the one-child policy. Zheng concludes that the BIA abused its

discretion in denying the motion to reopen and in not finding him eligible for asylum,

withholding of removal, and relief under the CAT. 

Our prior decisions in Feng Ying Zheng and Yang are not controlling because

this case comes to us in a significantly different procedural posture. Feng Ying Zheng

and Yang were direct appeals from the denial of asylum. Therefore, changed country

conditions were not at issue. Rather, the issue was whether the BIA denied relief

without considering evidence directly relevant to the aliens’ claims. Here, on the

other hand, the only question is whether the record supports the BIA’s conclusion that

Zheng failed to make an adequate showing of “changed circumstances arising in

[China]” with “evidence [that] is material and was not available and could not have

been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). 
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Zheng’s initial application did not seek asylum based upon a well-founded fear

of persecution for non-compliance with China’s one-child policy. Thus, the

administrative record contains no specific evidence of the relevant conditions in

Fujian Province before the October 2002 hearing, even though such evidence was

clearly available, Zheng married a Chinese alien in this country before that hearing,

and his wife testified at the hearing while pregnant with their first child. Regarding

conditions in Fujian Province since the October 2002 hearing, Zheng relies primarily

on his mother’s affidavit, but that evidence suffers from two distinct flaws. First, it

reported two recent forced sterilizations and asserted generally that, “In the past year,

the China’s family planning law is more strictly enforced in our hometown.” That is

not material evidence of changed circumstances when there is no evidence of local

policies and practices prior to October 2002. Compare Habchy v. Gonzales, 471 F.3d

858, 867 (8th Cir. 2006). Second, the uncorroborated affidavit came from Zheng’s

mother, who provided a purported government document at the initial hearing that the

IJ found to be “so exaggerated as to . . . be unreliable.” The BIA was not required to

credit the affidavit, particularly when it implausibly averred that local Chinese

officials “were already aware” that Zheng had two children and no “legal status” in

the United States, assertions that could have been corroborated. 

Given the absence of specific evidence of changed conditions that was both

material and not available in October 2002, the BIA did not abuse its discretion in

concluding that “the evidence reflects conditions substantially similar to those that

existed at the time of [the October 2002] hearing,” a conclusion it has reached in a

series of recent decisions addressing this same issue. See Matter of S-Y-G-, 24 I&N

Dec. 247 (BIA 2007); Matter of C-C-, 23 I&N Dec. 899 (BIA 2006); see generally

Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007). Therefore, the denial of Zheng’s

untimely and number-barred motion to reopen must be upheld. Accord Wang v. BIA,

437 F.3d 270, 273-75 (2d Cir. 2006). We deny the petition for review.

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