YAN XIA ZHANG, Petitioner, v. MICHAEL B. MUKASEY, Respondent.
No. 07-3355
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: October 8, 2008
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0364p.06. Submitted: September 9, 2008. Before: BOGGS, Chief Judge; and GIBBONS and GRIFFIN, Circuit Judges.
COUNSEL
OPINION
BOGGS, Chief Judge. Yan Xia Zhang (“Zhang”), a Chinese citizen, petitions for review of the decision of the Board of Immigration Appeals (“BIA” or “Board”) denying both her motion to reopen asylum proceedings and her successive application for asylum. Zhang argues that the BIA abused its discretion by failing to consider fully evidence that she says demonstrates changed country conditions in China that would support the reopening of her asylum proceedings. The BIA, however, need only rationally explain the basis for its decision as to country conditions. Zhang argues, in the alternative, that the BIA misconstrued the statutory provision governing the reopening of immigration proceedings to also govern a new, untimely application and that she should be able to proceed on her new application on grounds beyond changed country conditions. Because the BIA’s interpretation of the ambiguous provisions was reasonable, we defer to it. Accordingly, we deny Zhang’s petition for review.
I
Zhang entered the United States from her native China on April 7, 2000. She was detained upon arrival and requested asylum. At the subsequent hearing before an Immigration Judge (IJ), Zhang alleged that she was subject to persecution under China’s population policy. She claimed that, after she became pregnant out of wedlock, local population officials compelled her to undergo an abortion and demanded that she present herself the next month for the insertion of an intrauterine device that would prevent any future pregnancy. Instead of submitting to the forced contraception procedure, Zhang says she fled her hometown, hiding out with relatives until she could secure passage to the United States.
The IJ made an adverse credibility determination and denied her application for asylum and withholding of removal. The IJ, after considering Zhang’s documentary evidence and its factual foundation, concluded that “[t]he respondant . . . has presented what this Court deems to be fraudulent documents in an effort to obtain a benefit under the Act.” Among other inconsistencies, the IJ noted that the written document meant to confirm the forced abortion episode was signed by her father and brother even though the official Chinese household identity card Zhang provided to the court indicated both men had been living in the United States for years prior to the incident. The “most damning” factor for the IJ was the evolution of Zhang’s story from her initial statements to immigration officials to the story she pressed in the hearing. She originally suggested that she came to the United States because it is “a democratic country and human rights are very important” and gave no mention of coercive family planning policies. Only later did her claim center on the abortion incident. Zhang
Zhang nevertheless remained in the United States. By her account, she proceeded to lead a normal life, securing employment and integrating into the immigrant community. She says she met and fell in love with another Chinese immigrant, Jia Xun Wang. She has given birth to two children, a daughter in 2003 and a son the next year. She now, nearly seven years after the BIA issued it, challenges the order of removal.
In February 2007, Zhang filed with the BIA a “Motion to Reopen and Successive Asylum Application.” She alleged that the passage and enforcement of a new Chinese law, the Population and Family Planning Law, effective September 2002, constituted changed country conditions in China that warranted a reopening of her application under
The Board relied on the IJ’s adverse credibility determination in rejecting Zhang’s claim of changed country conditions. The linchpin of Zhang’s argument that she faced an individualized risk of persecution was a letter from her friend alleging two incidents in their home province of Fujian where violations of the population policy resulted in forced sterilization. The Board, however, concluded it “cannot simply accept at face value the purported letter from the applicant’s friend as reliable evidence that the applicant now faces sterilization” in light of the IJ’s findings that Zhang “submitted fraudulent documents, that her testimony was not credible, and that her asylum application was frivolous.”
The Board then turned to her successive application. The application was based on language in
Zhang now petitions for review of the Board’s decision. We address each issue in turn.2
II
“We review the BIA‘s denial of a motion to reopen for an abuse of discretion.” Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006); see
Zhang argues that the BIA abused its discretion by failing to discuss the numerous documents that she appended to her motion to reopen. Specifically, the opinion did not discuss the State Department country reports or the testimony of China experts about abuses related to the new family planning law. Because these documents are material to an element of her claim, she argues that their omission from the Board’s discussion requires that we vacate the decision and remand for a fuller explanation of the decision. She correctly describes the Board’s reasoning but incorrectly characterizes the law regarding such a decision.
We do not require the Board’s opinion to mention every piece of evidence before it or every logical element of a motion. Instead, we understand that there are “at least three independent grounds on which the BIA might deny a motion to reopen – failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.” INS v. Doherty, 502 U.S. 314, 323 (1992) (internal citations omitted). Consequently, the Board need only analyze and explain the basis on which it decided against Zhang. It did so. The Board rejected the credibility of her evidence and held that she did not establish that she “now faces sterilization if she returns to China.” When a necessary element of her claim – whether she faced a risk of individual persecution – failed, so did her entire motion. See Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (“[A]n alien filing a motion to reopen based on changed country conditions cannot rely on speculative conclusions or mere assertions of fear of possible persecution but instead must offer reasonably specific information showing a real threat of individual persecution.”) (internal quotations and citations omitted). The Board owed no duty to rehearse the rest of her evidence for sake of completeness.
Zhang argues that precedent from a sister circuit suggests remand is appropriate where the BIA fails to consider salient evidence of change in country conditions. See Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir. 2005) (“IJs and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim . . . [and a] similar, if not greater, duty arises in the context of motions to reopen based on changed country conditions.”); see also Shou Yung Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006) (remanding to the BIA to consider change of country condition evidence). Those cases are different from Zhang’s. There, the success of the motion depended on whether the BIA should consider the documents at all. See Poradisova, 420 F.3d at 82 (remanding because extensive documents deserve more than a “perfunctory” treatment in denying country conditions had changed); Guo, 463 F.3d at 114-15 (remanding where BIA did not consider “self-evidently material” documents because they were “new”). The BIA’s analysis of Zhang’s general documents, on the other hand, was not necessary to its decision: she did not show that the changed conditions would result in a risk of persecution against her. Harchenko, 379 F.3d at 410. Moreover, “[m]otions to reopen are disfavored in deportation proceedings [because] [t]here is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their . . . cases.” INS v. Abudu, 485 U.S. 94, 107 (1988). To remand here because the Board did not needlessly discuss documents on points of fact not material to its decision would frustrate this policy of finality in immigration proceedings without any benefit.
Zhang also made no attempt – either before the Board or this court – to rehabilitate her credibility. The IJ concluded Zhang’s original application was frivolous, finding her not credible and her documents fraudulent. Against that background, and with petitioner giving no reason to doubt the IJ’s conclusions,3 we cannot say the Board abused its discretion in declining to credit a letter from Zhang’s best friend without corroboration. As the letter was the only evidence of an individualized risk of persecution, the Board’s conclusion that she did not carry her “heavy burden” of demonstrating a prima facie case for relief is rationally explained and within its established policy.
III
Having determined that the BIA did not abuse its discretion in denying Zhang’s motion to reopen, we next consider whether the BIA correctly decided that it was barred from considering her successive asylum application independent of the motion to reopen. The Board held that, after a removal order is final for 90 days,
Our consideration of the Board’s interpretation begins with the text. At issue is the interaction of two sections of Title 8, each placing limits on an alien’s ability to file and refile asylum applications and each also granting an exception to those limits. First,
An application for asylum of an alien may be considered notwithstanding subparagraphs (B) and (C), if the alien demonstrates . . . either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay . . . .
Second,
These provisions manifestly provide competing standards for determining an alien’s eligibility to file an additional asylum application. Under
Our circuit in Haddad suggested that the first reading was correct and a successive application need not be coupled with a motion to reopen. 437 F.3d at 518. Even though the court held that the petitioner’s allegations of changed personal circumstances were insufficient to support a motion to reopen under
Zhang’s case is not controlled by Haddad. The holding in Haddad was limited to whether Haddad’s changed personal circumstances – a divorce – supported a motion to reopen under
For similar reasons two of the circuits that agree with the BIA’s view expressly rejected earlier dicta from their circuits suggesting that the successive application remedy was available independent of a motion to reopen. See Jin, 538 F.3d at 156 (rejecting the claim it must follow the view expressed in Guan v. BIA, 345 F.3d 47 (2d Cir. 2003) (per curiam) that a new application need not accompany a motion to reopen “because that comment was contained in dicta”); Li Chen, 524 F.3d at 1033 (“Because the interplay between the two statutory provisions was not ‘presented for review’ in He [v. Gonzales, 501 F.3d 1128 (9th Cir. 2007)], we are not bound by He’s offhand observation.”).
Finally, even if we were convinced that the Haddad court meant to rule squarely on this question, we would still be required to defer to the BIA’s contrary interpretation because Haddad did not find the language unambiguous. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”).
There are two other arguments that suggest the BIA view is in fact inconsistent with the statute. Neither is persuasive. First, the fact the two provisions deal with different situations – a new application and the reopening of an existing one – lends substance to the claim that Congress intended there to be different substantive standards for
Second, changes made to proposed regulations implementing
We also note that the BIA’s interpretation squarely comports with the acknowledged policies underlying our asylum law. Because of the interest in finality in immigration proceedings, the Supreme Court has emphasized that “[m]otions for reopening of immigrations proceedings are disfavored.” Doherty, 502 U.S. at 323. An approach that allows new applications to be filed independent of the stringent standards of
The potential for manipulation of “changed circumstances” similarly underscores the reasonableness of applying a more exacting standard to applicants who have overstayed a final removal order. The “any changed circumstances” standard of
We agree with our sister circuits and conclude that the BIA reasonably interpreted
IV
For the reasons set forth above, we DENY Zhang’s petition for review.