Lan Zheng Dong v. Alberto Gonzales, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4018
LAN ZHENG DONG
v.
*ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
*(Amended pursuant to F.R.A.P. 43(c))
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A74-856-015)
Submitted Under Third Circuit LAR 34.1(a)
June 29, 2005
Before: ROTH, RENDELL and BARRY, Circuit Judges.
(Filed July 29, 2005)
OPINION OF THE COURT
RENDELL, Circuit Judge.
I. Factual and Procedural Background
Lan Zhen Dong seeks review of the Board of Immigration Appeal’s (“BIA’s”)

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denial of her second motion to reopen. As we write only for the parties, we include only
the factual and procedural background necessary to our decision. Dong is a Chinese
national who entered the United States on October 16, 1998 without proper
documentation. Accordingly, the former INS commenced removal proceedings against
her on October 17, 1998 pursuant to the Immigration and Naturalization Act (“INA”) §
212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]. Dong conceded removability, and on April
5, 1999, she filed an application for asylum and withholding of removal. In her
application, Dong averred that after she had given birth to her son in 1988, she was
subjected to forced insertion of an intrauterine device (“IUD”). In 1998, Dong sought
private medical treatment to have the device removed due to the pain it caused. Fearing
she would be subjected to the insertion of another IUD, she fled to the United States in
1998. The Immigration Judge (“IJ”) denied Dong’s application based on his belief that
she was not credible. In coming to this conclusion, the IJ found that she was “unable to
respond to the questions posed and she merely repeated the story that she apparently had
learned as the story that should be told in court.”
On December 27, 1999, Dong filed an appeal with the BIA. In response, the BIA
requested that she supplement her brief so as to fulfill the requirement that she provide
detailed reasons for her appeal. Dong never did this, and the BIA dismissed the appeal
based on her procedural failure. Dong never sought review of that order with this Court.
One year later, on February 22, 2003, Dong filed a motion to reopen the removal

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proceedings with the BIA. As grounds for reopening proceedings, Dong claimed that she
was now subject to sterilization under China’s one-child policy as she had given birth to a
second child while in the United States. The BIA denied her motion to reopen based on
its determinations that her motion was untimely, the 2001 birth of her second child was
not new evidence, and, in any event, she failed to establish a prima facie case for relief.
Again, Dong failed to appeal the BIA’s order to this Court.
In June 2004, Dong filed a second motion to reopen the removal proceedings. As
grounds for denying her second motion, the BIA determined that her motion was untimely
and could not find that “the new evidence submitted by the respondent reflect[ed]
‘changed circumstances’ such that reopening [was] warranted in this case.” Dong now
seeks review of the BIA’s denial of her second motion to reopen.
II. Jurisdiction and Standard of Review
The BIA had jurisdiction over Dong’s motion to reopen pursuant to 8 C.F.R. §§
1003.1(b)(3) and 1240.53. Pursuant to 8 U.S.C. § 1252(a)(1), we have exclusive
jurisdiction to review the BIA’s denial of a motion to reopen removal proceedings.
Our Court reviews the BIA’s denial of a motion to reopen for abuse of discretion.
Gao v. Aschcroft, 386 F.3d 556, 562 (3d Cir. 2004) (citing INS v. Doherty, 502 U.S. 314,
323 (1992)). Accordingly, the BIA’s decision to deny Dong’s motion to reopen should be
affirmed unless “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582
(3d Cir. 1994). Finally, our Court lacks jurisdiction to reverse factual findings made by

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Although it was not substantively amended, the cited provision was recodified by the1
Real ID Act of 2005. Prior to May 11, 2005, it was found at 8 U.S.C. §
1229a(c)(6)(C)(ii).
Dr. Aird’s original affidavit (“Aird Affidavit 1”) was presented by Dong in her first2
motion to reopen in 2002.
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the BIA “unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
III. Discussion
Dong asserts that in rejecting her untimely and successive second motion to
reopen, the BIA abused its discretion when it failed to properly take into consideration
new evidence showing the likelihood she would be subjected to forced sterilization if
removed to China. A motion to reopen proceedings to apply for asylum is excepted from
the time and numerical limitations if it is “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.” 8 C.F.R. 1003.2(c)(3)(ii);
see also 8 U.S.C. § 1229a(c)(7)(C)(ii). Dong asserts that she met the conditions required1
for reopening when she presented the BIA with Dr. John Aird’s newly revised affidavit
from May 2003 (“Aird Affidavit 2”), concerning Chinese family planning programs.2
Dong describes the two affidavits: “‘Aird Affidavit 1’ is a somewhat generalized
analysis of the history and methods of the Chinese family planning program. . . . ‘Aird
Affidavit 2’ deals specifically and explicitly with the issue of how Chinese family
planning authorities deal with Chinese citizens who have foreign-born children.” (Blue

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Brief at 13-14.) In Aird Affidavit 2, Dr. Aird asserts that Chinese officials have treated
and presently treat Chinese citizens with foreign-born children in a similar manner to
those with Chinese-born children. He quotes the U.S. State Department’s Bureau of
Democracy, Human Rights and Labor’s (“BDHRL’s”) 1998 report entitled “China:
Profile of Asylum Claims and Country Conditions”: “‘a person who conceived a second
child without approval while on a student visa or visitor visa would be subject to the same
penalties that a resident in China must bear.” Dr. Aird further explains:
Presumably Chinese who entered the U.S. illegally and had no visa at all
would also be subject to the standard provisions. Thus most of the Chinese
asylum applicants in the U.S. subject to forcible repatriation would not,
even under these terms, escape the punishments that apply to Chinese
couples who violate the policy in China.
Though he hints that some tightening of the family planning program may have occurred
recently, he presents no specific evidence that any conditions relating to how Chinese
officials treat citizens who exceed the one-child limit have materially changed within
China since 1998, the date of Dong’s initial proceeding before the IJ. Rather, the
information that has changed is the focus of Dr. Aird’s writing: he now specifically
addresses an issue, the treatment of Chinese citizens who have foreign-born children, that
he previously did not include in his affidavit.
Thus, Dong’s argument is unpersuasive. The BIA, in its decision, stated that “the
mere fact that the respondent wishes to present further updated information regarding

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In its decision to deny Dong’s second motion to reopen, the Board repeatedly used3
masculine pronouns to refer to Dong. Due to the basis of Dong’s asylum claim, the fear
of forcible insertion of an IUD, we find this mislabeling to be disconcerting.
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country conditions to reinforce the original claim as well as [her] initial motion does not3
allow [her] to circumvent the time and number limitations on motions to reopen when the
evidence is used to support the previous claim, not to establish changed country
conditions.” This reasoning is valid and the BIA’s decision to deny the motion is not an
abuse of discretion.
Dong further claims that she meets the criteria for reopening because Aird
Affidavit 2 was not available at the time of Aird Affidavit 1. Though Dr. Aird’s
articulation on the topic of Chinese family planning authorities’ treatment of Chinese
citizens with foreign-born children was not available at the time of his first affidavit,
many of the sources he later referenced in his second affidavit were available before
2000. Thus, we cannot find that information regarding the policy of Chinese officials
towards citizens with foreign-born children was unavailable at the time of Dong’s earlier
proceedings.
IV. Conclusion
Accordingly, we will deny the petition for review.

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