Fang Rong Zheng v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3582
___________
FANG RONG ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-367-172)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 24, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: March 25, 2010)
OPINION
PER CURIAM
Fang Rong Zheng petitions for review of the Board of Immigration Appeals’
(“BIA”) denial of her motion to reopen deportation proceedings and file a successive

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asylum application. For the reasons that follow, we will deny the petition.
I.
Fang Rong Zheng is a 32-year-old citizen of China, who entered the United States
without being admitted or paroled in March 2001. In March 2002, the Immigration and
Naturalization Service filed a Notice to Appear and placed Zheng in removal
proceedings. Zheng conceded removability and applied for asylum, withholding of
removal, and relief under the Convention Against Torture. In support of her application,
she argued that because of the birth of her child in the United States, in violation of
China’s family planning policy prohibiting pregnancy out of wedlock, she feared that she
would be forced to have an abortion and undergo sterilization if she became pregnant
again upon returning to China.
In March 2004, after a hearing on the merits, the Immigration Judge (“IJ”) denied
Zheng’s application. Finding discrepancies and omissions between Zheng’s asylum
application and her testimony, the IJ ultimately concluded that Zheng was not credible.
Zheng appealed the IJ’s decision and, on July 21, 2005, the BIA affirmed the IJ’s
decision. Zheng did not file a petition for review of the BIA’s decision with this Court.
Over seventeen months later, on January 11, 2007, Zheng filed with the BIA a
motion to reopen and to file a successive asylum application. She asserted that her
motion was exempt from the ninety-day time restriction governing motions to reopen
because her motion was based on the “changed circumstances” exception in INA §

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We have no jurisdiction to review the BIA’s decision to decline to invoke its sua1
sponte authority to reopen a case under 8 C.F.R. § 1003.2(a). See Calle-Vujiles v.
Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003) (holding that such authority “is committed to
[the agency’s] unfettered discretion. Therefore, the very nature of the claim renders it not
subject to judicial review”) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999).
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208(a)(2)(D). Alternately, she requested that the BIA reopen her case sua sponte under
the discretion granted to it under 8 CFR § 1003.2(a). Specifically, Zheng contended that
if she returned to China, she would be subject to sterilization under China’s one-child
policy because she had given birth to a second child since her removal hearing.
The BIA denied her motion to reopen based on its determinations that her motion
was untimely and that the evidence she submitted — namely the birth of her second child
— did not reflect changed circumstances in China or exceptional circumstances such that
reopening was warranted. The BIA also concluded that the evidence Zheng submitted did
not reflect changed circumstances in China to warrant exercising jurisdiction to consider
her successive asylum application. Zheng timely petitioned this Court to review the
BIA’s decision.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We
review the BIA’s findings of fact for substantial evidence and the denial of the motion to
reopen for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.1
2002). The BIA’s decision is entitled to “broad deference.” Ezeagwuna v. Ashcroft, 325
F.3d 396, 409 (3d Cir. 2003). Thus, in order to succeed on the petition for review, Zheng

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must show that the BIA’s discretionary decision was arbitrary, irrational, or contrary to
law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (quotation omitted). Zheng has
failed to make such a showing.
III.
The BIA denied the motion to reopen because it was untimely and because Zheng
did not meet the exception for changed circumstances under 8 C.F.R. § 1003.2(c) or
exceptional circumstances under 8 CFR § 1003.2(a). The motion was undisputably
untimely as it was filed over seventeen months after the BIA denied Zheng’s appeal. See
8 C.F.R § 1003.2(c)(2) (motions to reopen must be filed within 90 days of a final order).
Zheng did not contest the tardiness of her motion; instead she asserted that it fell within
the exception of 8 C.F.R. § 1003.2(c)(3)(ii), which permits reopening “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.”
In support of reopening, Zheng submitted (1) an affidavit; (2) evidence of her two
children’s births in 2001 and 2006; (3) a 2005 Country Report for China; (4) Fuzhou City
regulations on family planning, dated April 1996; (5) 2004 testimony of Assistant
Secretary of the State Department; and (6) an April 2006 New York Times article
discussing individuals who were returned to China and forcibly sterilized. (See A.R. 9-
206.) The BIA found that her evidence — namely the birth of her two children in the

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We note that in Zheng’s motion to the BIA, she submitted evidence related to2
conditions in China, but she did not argue that her motion was based on changed
circumstances in China, instead conceding that the motion was based on her changed
personal circumstances. Thus, we deny the petition for review, despite the BIA’s cursory
and conclusory denial. See Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008)
(holding that the BIA must explicitly consider any country conditions evidence that
materially bears on an applicant’s claim).
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United States — did not constitute “changed circumstances arising in the country of
nationality” as required by 8 U.S.C. § 1229a(c)(7)(C)(ii) and 8 C.F.R. § 1003.2(c)(3)(ii)
to waive the ninety-day deadline for motions to reopen. This conclusion comports with
our precedent, see Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir. 2009), and we find that
the BIA did not abuse its discretion in denying Zheng’s untimely motion to reopen.2
Zheng’s argument that she is entitled to file a successive asylum application is also
foreclosed by our decision in Liu, 555 F.3d at 150-51. We have held that in considering
an application to file a successive asylum application, the BIA should apply 8 U.S.C. §
1229(a)(7)(C)(ii), which requires evidence to demonstrate “changed country conditions
arising in the country of nationality.” Id. Zheng argues that such an interpretation
violates the equal protection clause of the Fifth Amendment, in that it holds aliens who
have already submitted a prior asylum application to a more stringent standard than
otherwise similarly-situated aliens who have never filed an asylum application. In Liu,
we acknowledged Zheng’s argument, see id. at 151; however, we found that to interpret 8
U.S.C. § 1158(a)(2)(B) otherwise would circumvent 8 U.S.C. § 1229a(c)(7)(A) and
“would not honor Congress’ purpose in the INA to avoid abuse of the system.” Id.

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For the above reasons, we will deny the petition for review.

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