Jian Wu Zheng v. Attorney General of the United States

*
Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 08-3771
JIAN WU ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A072-750-368)
Immigration Judge: Hon. Annie S. Garcy
Submitted Under Third Circuit LAR 34.1(a)
February 12, 2010
Before: SLOVITER, ROTH, and TASHIMA, Circuit Judges*
(Filed: March 8, 2010)
____
OPINION
SLOVITER, Circuit Judge.

-- 1 of 6 --

2
Petitioner Jian Wu Zheng, a native of Changle City in the Fujian Province of China,
seeks review of a final order issued by the Board of Immigration Appeals (“BIA”)
affirming the decision of an Immigration Judge (“IJ”) to deny Zheng’s motion to reopen
his case on the basis of changed country conditions.
I.
Background
Zheng entered the United States in 1994 and was immediately scheduled for a
hearing before an IJ for failure to possess valid entry documentation. When Zheng failed
to appear at his immigration hearing in 1996, the judge ordered him removed to China in
absentia. In July 2007, Zheng filed an untimely motion to reopen his case under 8 C.F.R.
§ 1003.2(c)(3)(ii), asserting that the conditions in China have changed so that if he were to
return it is likely that he would be forcibly sterilized because China’s population control
policies mandate sterilization of Chinese citizens with two or more children. Zheng argues
that inasmuch as he had two sons who were born in the United States, he is now eligible
for asylum and withholding of deportation under the Immigration and Nationality Act and
the Convention Against Torture.
The IJ denied Zheng’s motion to reopen, holding that Zheng failed to demonstrate
prima facie eligibility for relief because he was “not convincing that . . . China would
learn of his children,” because “it is . . . likely that only a monetary fine would be imposed
on the couple for having an extra son,” and because “the present case law is not supportive

-- 2 of 6 --

We have jurisdiction to review the decision of the BIA1
under 8 U.S.C. § 1252.
3
of [Zheng’s] motion.” App. at 65-66.
The BIA affirmed that decision, holding that Zheng did not meet “his burden of
establishing a material change of country conditions that would affect his eligibility for
relief, so as to except him from the time limitation for motions to reopen,” App. at 2, and
also “reject[ing] [Zheng’s] prima facie asylum case,” App. at 3. In so doing, the BIA
referenced four of its own opinions as well as a case from this court. It also found both
that Zheng’s affidavit was inconsistent as to whether Chinese officials were aware of his
children, and that the affidavit provided by Zheng’s mother-in-law did not support the
existence of forced sterilization in the locale to which Zheng presumably would return,
Changle City.
Zheng filed a timely petition for review.1
II.
Discussion
To succeed in his untimely motion to reopen Zheng must show that country
conditions in China have changed since his case was closed in 1996. 8 C.F.R. §
1003.2(c)(3)(ii). Also, immigration courts can deny an application to reopen if a petitioner
has not made out a prima face case for relief. Zheng v. Att’y Gen., 549 F.3d 260, 265-66
(3d Cir. 2008). We review the denial of a motion to reopen for an abuse of discretion,

-- 3 of 6 --

4
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004), and will reject the BIA’s factual
findings only if a “reasonable adjudicator would be compelled to conclude to the
contrary,” 8 U.S.C. § 1252(b)(4)(B).
Zheng argues that he has presented evidence of “a change in country conditions,
both nationally and locally in [Zheng’s] hometown, in that family planning officials are
increasingly enforcing China’s family planning policy through means constituting
persecution,” i.e., forced sterilization or excessive fines, and that, as a Chinese citizen
whose children were born in the United States, he would be subject to this policy.
Petitioner’s Br. at 10. Zheng submitted a large number of documents. Rather than address
each document separately, the BIA in part referenced its own precedent which addressed
much the same evidence as Zheng presents here, including the 2006 Department of State
Country Report on China, the 2003 Changle City Administrative Opinion, 2003 Fujian
Province Administrative Decision, and 1999 Q&A Handbook, and found it unpersuasive.
See In re J-W-S-, 24 I & N Dec. 185, 190-92 (BIA 2007), and In re S-Y-G-, 24 I & N Dec.
247, 253-54 (BIA 2007).
Recently, in Liu v. Att’y Gen., 555 F.3d 145, 149 (3d Cir. 2009), a case decided
after the BIA’s decision here, we declined to review a BIA decision denying a petitioner’s
application to reopen on the ground that the Chinese official policy of forced sterilization
had not changed. The Liu court noted that the Board found unpersuasive the “March 14,
2006, letter from the ‘Administrative Office of the National Population and Family

-- 4 of 6 --

5
Planning Committee’” also submitted here by Zheng, and cited the analysis in In re J-W-S-
with approval. Liu, 555 F.3d at 149. The BIA’s rejection of the evidence in those cases is
dispositive.
Zheng, however, also presented three pieces of new evidence that his hometown of
Changle City has a policy of counting foreign born children towards the child limits in
China’s family planning policies. Even assuming that the existence of such a policy in
Zheng’s hometown is a sufficient basis to support a grant of asylum or withholding relief,
Zheng’s evidence still falls short because (1) it not only fails to show that the policy is
enforced in a manner amounting to persecution, and (2) because, as the government
emphasizes, Zheng’s evidence fails to show changed country conditions. Such a showing
is a prerequisite to grant a petition to reopen.
The letter Zheng provided from his cousin’s husband Chen to support his claim of
forcible sterilization for having violated the family planning laws is not probative of a
changed policy. Similarly, the letter Zheng submitted from his mother-in-law stating that
over the past twenty years various family members and friends had been forcibly sterilized
by the Changle City government for having two Chinese-born children demonstrates that
the Chinese family policy has existed for decades. Moreover, her reference to forcible
sterilizations that took place twenty years ago undermines the necessary premise that
Changle City’s policy was adopted after 1996.
The letter Zheng offers from the Changle City village “committee” states that local

-- 5 of 6 --

6
officials are aware that he has two children and that therefore he “must” upon his return
“report to the local family Planning Office . . . [to] make an appointment to undergo
sterilization operation in appointed date,” does not explain how this sterilization mandate
would be enforced. App. at 174. We will not assume that methods amounting to
persecution, such as physical force, would be employed, especially given that, as the In re
J-W-S- panel noted, the U.S. State Department has stated that China’s “central
government[’s] policy prohibits physical coercion to compel persons to submit to family
planning enforcement.” In re J-W-S-, 241 I & N Dec. at 193. The evidence that Zheng
would at least be subject to a fine is insufficient because Zheng failed to show that such a
fine would have a substantial economic disadvantage on him personally. Guan Shan Liao
v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (“[E]conomic deprivation may
constitute persecution, [but] an asylum applicant must offer some proof that he suffered a
deliberate imposition of substantial economic disadvantage.”) (internal quotations
omitted).
In sum, the evidence does not compel the conclusion that the BIA abused its
discretion in declining to grant Zheng’s petition to reopen.
III.
Conclusion
For the reasons set forth above, we will deny the petition for review.

-- 6 of 6 --