Zheng v. US Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 30, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-15707
Non-Argument Calendar
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Agency No. A088-527-961
HANG ZHENG,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllllRespondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(June 30, 2011)
Before BARKETT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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Hang Zheng, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA’s”) denial of his motion to reopen his application
for asylum, pursuant to 8 C.F.R. § 1003.2(c). In May 2010, the BIA denied
Zheng’s original application for asylum, which sought relief based on China’s
family planning policy and the forced sterilization of his wife. In August 2010,1
Zheng filed a timely motion to reopen, alleging that, after his hearing before the
immigration judge, he adopted the spiritual practice of Falun Gong, for which he
would face persecution if he returned to China. In support, he submitted affidavits
demonstrating his association with Falun Gong, as well as background materials
documenting China’s coercive policy towards Falun Gong in 2007 and 2008. The
BIA denied Zheng’s motion.
A motion to reopen “must be accompanied by the appropriate application
for relief and all supporting documentation” and “shall not be granted unless it
appears to the Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1). To prove that the new evidence is “material,” the alien
must establish “that, if the proceedings were opened, the new evidence would
While Zheng’s motion to reopen was pending, we denied his petition for review of this1
ruling. Zheng v. U.S. Att’y Gen., 406 Fed.Appx. 464 (11th Cir. 2010) (unpublished).
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likely change the result in the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252,
1256-57 (11th Cir. 2009). Thus, the BIA has the discretion to deny a motion to
reopen for at least three reasons: “1) failure to establish a prima facie case of
eligibility for asylum or withholding of removal; 2) failure to introduce evidence
that was material and previously unavailable; and 3) a determination that despite
the alien’s statutory eligibility for relief, he or she is not entitled to a favorable
exercise of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir.
2007) (alterations and quotation marks omitted). We review the denial of a
motion to reopen removal proceedings for an abuse of discretion. Zhang v. U.S.
Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). The moving party bears a
“heavy burden,” and judicial review “is limited to determining whether the BIA
exercised its discretion in an arbitrary or capricious manner.” Id.
Zheng argues on appeal that the BIA abused its discretion in denying his
motion to reopen because he submitted new and material evidence showing his
adherence to Falun Gong and the Chinese government’s persecution of Falun
Gong practitioners. He also asserts that, contrary to the BIA’s conclusion, he did
in fact have an asylum application on file.
On this record, we cannot say the BIA abused its discretion in denying
Zheng’s motion to reopen. First, we note that while Zheng did have an asylum
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application on file, this original application sought relief based solely on China’s
family planning policy, and Zheng failed to accompany his motion to reopen with
a new asylum application based on his changed circumstances. Even if this alone
was not a reason to deny Zheng’s motion to reopen, the BIA did not clearly err in
finding that none of the background evidence submitted by Zheng concerning
China’s country conditions was “new,” as it was available at the time of his
original hearing. Finally, the BIA did not clearly err in finding that the evidence
Zheng submitted would be unlikely to change the result in this case, as it provided
no information about the Chinese government’s current policy towards Falun
Gong, as necessary to establish a well-founded fear of persecution based on his
status as a Falun Gong practitioner. Accordingly, we deny Zheng’s petition for
review.
PETITION FOR REVIEW DENIED.
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