Xiao Jun Liang v. Holder
626 F.3d 983
| 7th Cir. | 2010Background
- Liang, a Chinese citizen, entered the U.S. without valid documents in 2003 and sought asylum, withholding, and CAT relief based on political persecution; IJ found her not credible and denied relief, Board affirmed in 2004; she did not timely seek review; in 2009 she moved to reopen, alleging changed country conditions under China’s one-child policy due to her family status (married, two children) and alleged increased enforcement; Board denied reopening in 2009 for lack of material change and unreliability of evidence; this court reviews Board’s denial for abuse of discretion with deferential standard; the panel affirms the Board’s decision denying reopening.
- She relied on new evidence (affidavit, notices, reports, articles) claiming stricter enforcement of family planning; most evidence predated 2003 or not tied to her province, and much was not personal knowledge or properly authenticated; the Board gave reasons for discounting the evidence and found no material change.
- The Board concluded the one-child policy enforcement was not a material change since 2003 and Liang failed to show a reasonable likelihood of eligibility if reopened; the court emphasizes changed country conditions must be provincially concrete and not bureaucratic repetition of existing policy.
- The court concludes Liang’s motion to reopen was untimely and the evidence did not establish a material change in China’s enforcement of family planning; the Board acted within its discretion, and Liang’s petition is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to reopen was timely under 8 U.S.C. § 1229a(c)(7)(C)(i). | Liang argues changed condition grounds excuse delay. | Board treated as untimely; no basis to toll. | Untimely under statute. |
| Whether China’s one-child policy constitutes a material change in country conditions. | Enforcement intensified; enough to support reopening. | Policy change not shown; enforcement continuity. | No material change proven. |
| Whether evidence submitted supports likelihood of eligibility on reopening. | New affidavits and notices show risk of forced sterilization. | Evidence unreliable, numerous items predate 2003 or are not probative. | Evidence insufficient to establish likelihood of relief. |
| Whether Board properly evaluated the village notice and credibility findings. | Village notice credible and probative. | Notice unauthenticated; credibility already adverse; unreliable. | Board acted within discretion. |
Key Cases Cited
- Chen v. Gonzales, 498 F.3d 758 (7th Cir.2007) (distinguishes personal changes from country conditions for reopening)
- Zhao v. Gonzales, 440 F.3d 405 (7th Cir.2005) (personal changes cannot justify reopening; focuses on conditions)
- Lin v. Holder, 626 F.3d 983 (7th Cir.2010) (treatment of evidence and changed conditions; reliability of affidavits)
- Doherty, 502 U.S. 314 (1992) (costs of delay in immigration proceedings; deference to agency decisions)
- Kay v. Ashcroft, 387 F.3d 664 (7th Cir.2004) (reopening requires reasonable likelihood of eligibility)
- Mansour v. I.N.S., 230 F.3d 902 (7th Cir.2000) (abuse-of-discretion standard for immigration appeals)
- Juarez v. Holder, 599 F.3d 560 (7th Cir.2010) (affirming deferential review of Board decisions)
- Fessehaye v. Gonzales, 414 F.3d 746 (7th Cir.2005) (motions to reopen strongly disfavored)