Hui Zheng v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HUI ZHENG, a/k/a Hui Chen, 

Petitioner,

v.

 No. 08-1255

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

Argued: January 27, 2009

Decided: April 16, 2009

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Petition for review denied by published opinion. Judge Dun-

can wrote the opinion, in which Judge Motz and Judge King

joined.

COUNSEL

ARGUED: Joshua E. Bardavid, LAW OFFICE OF JOSHUA

BARDAVID, New York, New York, for Petitioner. Zoe Jaye

Heller, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Gregory G.

Katsas, Assistant Attorney General, Civil Division, Douglas

2 ZHENG v. HOLDER

E. Ginsburg, Senior Litigation Counsel, Office of Immigra-

tion Litigation, UNITED STATES DEPARTMENT OF JUS-

TICE, Washington, D.C., for Respondent.

OPINION

DUNCAN, Circuit Judge:

Hui Zheng, a Chinese citizen, appeals a final order from the

Board of Immigration Appeals ("BIA") dismissing her motion

to file a successive application for asylum almost eight years

after she filed her initial asylum application. She argues that,

contrary to the BIA’s decision, her changed personal circum-

stances allow her to file such an untimely successive asylum

application without filing a motion to reopen. In the alterna-

tive, she argues that any requirement that an asylum applicant

file a motion to reopen unlawfully conflicts with the United

States’s obligations under the Convention Against Torture

("CAT") and the U.N. Protocol Relating to the Status of Refu-

gees ("U.N. Protocol"), which prohibit returning an alien to

persecution and torture. Finding no merit in these contentions,

we join the eight other circuits that have considered this issue

and affirm the BIA.

I.

Hui Zheng is a native and citizen of the People’s Republic

of China who attempted to enter the United States on August

14, 1998 using a false passport. An immigration officer found

her inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an

arriving alien who seeks admission to the United States with-

out a valid entry or arrival document. Shortly thereafter, the

former Immigration and Naturalization Service ("INS") issued

Zheng a Notice to Appear, charging her with being inadmissi-

ble and subject to removal under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I).

ZHENG v. HOLDER 3

Zheng appeared with counsel at a hearing on May 19, 1999.

She conceded removability, but stated that she intended to

seek asylum. She subsequently filed an Application for Asy-

lum and Withholding of Removal, asserting that she feared

persecution if she were to return to China because of China’s

population control program. At that time, she was unmarried

and childless, but expressed her desire to marry and have mul-

tiple children. After a merits hearing on December 9, 1999, an

immigration judge ("IJ") denied Zheng’s asylum and with-

holding of removal applications. Zheng timely appealed the

IJ’s decision to the Board of Immigration Appeals ("BIA") on

January 10, 2000. On April 9, 2002, the BIA adopted and

affirmed the IJ’s decision and ordered Zheng deported. Zheng

did not appeal the BIA’s decision.

On February 25, 2005, Zheng filed with the BIA a motion

to reopen based on changed circumstances. In the period since

the prior hearing, she had married a United States citizen and

had two children. In the motion to reopen, Zheng reiterated

her fear of persecution based on China’s one-child family

planning policy. On April 14, 2005, the BIA denied Zheng’s

motion to reopen as untimely under 8 C.F.R. § 1003.2(c)(2),

which allows an alien to file only one motion to reopen within

90 days of the entry of a final removal order. The BIA found

that the birth of Zheng’s children in the United States did not

constitute changed circumstances arising in the "country of

nationality" that would justify an exception under 8 C.F.R.

§ 1003.2(c)(3)(ii) to the time limits on filing a motion to reopen.1

The Board also rejected Zheng’s argument that she could file

an untimely asylum application based on her changed per-

sonal circumstances under 8 U.S.C. § 1158(a)(2)(D). The BIA

1

Title 8 C.F.R. § 1003.2(c)(3) states that the "time and numerical limita-

tions" of 8 C.F.R. § 1003.2(c)(2) will not apply to a motion to reopen pro-

ceedings in order for the alien to apply for asylum or withholding of

deportation "based on changed circumstances arising in the country of

nationality or in the country to which deportation has been ordered, if such

evidence is material and was not available" at the initial removal hearing.

4 ZHENG v. HOLDER

did acknowledge that section 1158(a)(2)(D) allows untimely

asylum applications if the alien shows changed circumstances

that "materially affect the applicant’s eligibility for asylum or

extraordinary circumstances relating to the delay in filing an

application within the one year period."2 The BIA found,

however, that this exception did not apply to an alien such as

Zheng, who had completed her removal proceedings before

the IJ and the BIA and had not departed before the time to

move to reopen had expired. The BIA determined that Zheng,

whose asylum application had been denied and who was sub-

ject to removal, was in a qualitatively different position than

an alien who has missed the one-year asylum application

deadline or who has not otherwise become subject to a final

removal order. Zheng did not seek judicial review of this

decision, either.

On April 24, 2007, Zheng filed a motion to file a succes-

sive asylum application (the "motion to file") before an IJ,

again arguing that because of the birth of her two children in

the United States, she would be forcibly sterilized if returned

to China. She asserted in the motion that she could file a suc-

cessive application for asylum under 8 C.F.R. § 1208.4,3 that

2

Title 8 U.S.C. § 1158(a)(2)(D) states as follows:

(D) Changed circumstances

An application for asylum of an alien may be considered, not-

withstanding subparagraphs (B) and (C), if the alien demonstrates

to the satisfaction of the Attorney General either the existence of

changed circumstances which materially affect the applicant’s

eligibility for asylum or extraordinary circumstances relating to

the delay in filing an application within the period specified in

subparagraph (B).

3

Title 8 C.F.R. § 1208.4 states in relevant part:

Except as prohibited in paragraph (a) of this section, asylum

applications shall be filed in accordance with paragraph (b) of

this section.

(a) Prohibitions on filing. Section 208(a)(2) of the Act pro-

hibits certain aliens from filing for asylum on or after April

ZHENG v. HOLDER 5

a motion to reopen was not required to file such a successive

asylum application, and that the IJ had jurisdiction over the

motion to file. She also asserted that under the CAT and the

U.N. Protocol, she should not be barred from seeking with-

holding of removal.

The IJ denied Zheng’s motion to file on August 14, 2007,

writing "MOTION DENIED" on the first page of her motion.

Zheng timely appealed to the BIA on September 12, 2007,

arguing that the IJ had failed to render a proper, reviewable

decision; that she did not need to file a motion to reopen; and

that the IJ had violated her due process rights by failing to

address her request for withholding of removal and for protec-

tion under the CAT.

The BIA dismissed Zheng’s appeal on February 5, 2008.

The BIA treated Zheng’s motion to file a successive asylum

application as a motion to reopen and denied it as untimely

and numerically barred under 8 C.F.R. § 1003.2(c). The BIA

also found that the IJ had lacked jurisdiction over Zheng’s

motion to file and that jurisdiction lay with the BIA.

Zheng now appeals, arguing that the IJ had jurisdiction

over her motion to file and that filing a motion to reopen is

not a necessary predicate to the filing of a successive,

untimely asylum application under 8 U.S.C. § 1158(a)(2)(D).

She also contends that requiring an alien to file a motion to

reopen conflicts with the CAT and the U.N. Protocol, which

prohibit the return of an alien to a country where the alien will

be subject to persecution. We consider her various arguments

in turn.

1, 1997, unless the alien can demonstrate to the satisfaction

of the Attorney General that one of the exceptions in section

208(a)(2)(D) of the Act applies. . . .

Section 208(a)(2)(D) of the Immigration and Nationality Act outlines the

"changed circumstances" exceptions quoted supra in footnote two. See 8

U.S.C. § 1158(a)(2)(D).

6 ZHENG v. HOLDER

II.

Under 8 U.S.C. § 1252(a)(2)(D), this court has jurisdiction

to review constitutional claims and questions of law raised in

a petition for review of a final order of removal. We review

denials of motions to reopen claims for asylum and claims for

withholding of deportation under an abuse of discretion stan-

dard. I.N.S. v. Doherty, 502 U.S. 314, 323-24 (1992). The

BIA’s legal conclusions are reviewed de novo, although the

BIA’s interpretation of the Immigration and Nationality Act

("INA") "is entitled to deference and must be accepted if rea-

sonable." Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir.

2007) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Coun-

cil, Inc., 467 U.S. 837, 844 (1984)).

III.

A brief outline of the applicable statutory and regulatory

scheme will facilitate consideration of Zheng’s substantive

arguments. Title 8 U.S.C. § 1229a provides the procedure for

removal proceedings. Under 8 U.S.C. § 1229a(a)(3), a

removal proceeding "shall be the sole and exclusive proce-

dure for determining whether an alien may be admitted to the

United States." Once removal proceedings have concluded, an

alien may usually file only one motion to reopen removal pro-

ceedings for further adjudicative review, and must file that

motion "within 90 days of the date of entry of a final adminis-

trative order of removal." 8 U.S.C. §§ 1229a(c)(7)(A),

1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). However,

section 1229a(c)(7)(C)(ii) provides an exception to this 90-

day deadline:

There is no time limit on the filing of a motion to

reopen if the basis of the motion is to apply for [asy-

lum] and is based on changed country conditions

arising in the country of nationality or the country to

which removal has been ordered, if such evidence is

material and was not available and would not have

ZHENG v. HOLDER 7

been discovered or presented at the previous pro-

ceeding.

See also 8 C.F.R. § 1003.2(c)(3)(ii).

Title 8 U.S.C. § 1158 provides the procedure for asylum

applications. Under 8 U.S.C. § 1158(a)(2)(B), an alien must

usually seek asylum by filing an application "within 1 year

after the date of the alien’s arrival in the United States." See

also 8 C.F.R. § 1208.4(a)(2). An alien may only file one asy-

lum application; section 1158(a)(2)(C) prohibits an alien from

applying for asylum "if the alien has previously applied for

asylum and had such application denied." However, section

1158(a)(2)(D) provides the following exception:

An application for asylum of an alien may be consid-

ered, notwithstanding subparagraphs (B) and (C), if

the alien demonstrates to the satisfaction of the

Attorney General either the existence of changed cir-

cumstances which materially affect the applicant’s

eligibility for asylum or extraordinary circumstances

relating to the delay in filing an application within

the period specified in subparagraph (B).

See also 8 C.F.R. § 1208.4(a)(4). Unlike section

1229a(c)(7)(C)(ii), which allows an alien to file a motion to

reopen based on changed country circumstances, section

1158(a)(2)(D) permits an alien to file an untimely asylum

application based on any "changed circumstances which

materially affect the applicant’s eligibility for asylum."

Title 8 C.F.R. § 1208.4(b)(3)(ii) states that an alien who

wishes to file an asylum application "[a]fter completion of

exclusion, deportation, or removal proceedings" must do so

"in conjunction with a motion to reopen pursuant to 8 CFR

part 1003 where applicable, with the Immigration Court hav-

ing jurisdiction over the prior proceeding."

8 ZHENG v. HOLDER

IV.

We now turn to the three primary arguments that Zheng

raises on appeal. First, Zheng asserts that the BIA erred in

concluding that the IJ lacked jurisdiction to consider her 2007

motion to file a successive asylum application. Second, she

argues that she did not need to file a motion to reopen in order

to file such a successive asylum application, and that the BIA

abused its discretion in failing to consider her substantive

arguments on this issue. Lastly, she contends that to the extent

a motion to reopen is a necessary predicate to the filing of a

successive asylum application, such a requirement is unlawful

because it conflicts with the CAT and U.N. Protocol, which

prohibit the return of an alien to a country where the alien will

be subject to persecution. We address these arguments sepa-

rately below.

A.

Zheng first argues that the IJ had jurisdiction over her 2007

asylum application, such that the IJ erred in denying her

motion to file a successive asylum application and the BIA

erred in concluding that the IJ lacked jurisdiction to consider

it. To support this contention, she relies on 8 C.F.R.

§ 1208.2(b), entitled "Jurisdiction of Immigration Court in

general," which states as follows:

Immigration judges shall have exclusive jurisdiction

over asylum applications filed by an alien who has

been served a Form I-221, Order to Show Cause;

Form I-122, Notice to Applicant for Admission

Detained for a Hearing before an Immigration Judge;

or Form I-862, Notice to Appear, after the charging

document has been filed with the Immigration Court.

She also cites 8 C.F.R. § 1208.4(b)(3)(ii), which states that

aliens whose removal proceedings have concluded must file

asylum applications "with the Immigration Court having juris-

ZHENG v. HOLDER 9

diction over the prior proceeding." Zheng contends that this

language gives "the Immigration Court jurisdiction" over her

successive asylum application. Petr.’s Br. at 17.

Zheng’s reliance on 8 C.F.R. § 1208.4(b)(3)(ii) undercuts

her jurisdictional argument. Zheng does not deny that her

removal proceedings have concluded and that she is subject

to a removal order. Under section 1208.4(b)(3)(ii), she was

required to file her asylum application "with the Immigration

Court having jurisdiction over the prior proceeding." 8 C.F.R.

§ 1208.4(b)(3)(ii) (emphasis added). The BIA was the adjudi-

cative entity that last had jurisdiction over her case. The

record shows that the BIA handled Zheng’s appeal of her

1999 removal order, as well as her 2005 subsequent motion

to reopen, which was the last motion she filed with any immi-

gration adjudicative entity before her motion to file a succes-

sive asylum application in 2007. Under 8 C.F.R.

§ 1208.4(b)(3)(ii), after her removal proceedings concluded,

Zheng was required to file any subsequent asylum application

with the BIA. The BIA did not err in finding that the IJ lacked

jurisdiction to consider Zheng’s motion to file a successive

asylum application.

B.

Zheng also argues that she was not required to file a motion

to reopen—and was therefore not subject to the 90-day dead-

line applicable to motions to reopen under 8 U.S.C.

§ 1229a(c)(7)(C)—when she attempted to file a successive

asylum application in 2007. She also argues that the BIA

erred in failing to consider her arguments on this issue.

Zheng bases her argument that she may file a successive

asylum application on 8 U.S.C. § 1158(a)(2)(D), which allows

an alien to file such an application at any time based on

"changed circumstances which materially affect the appli-

cant’s eligibility for asylum." She contends that section

1158(a)(2)(D) "specifies the right to have an asylum claim

10 ZHENG v. HOLDER

after an IJ proceeding has closed" and points out that the stat-

ute does not state that the alien must file a motion to reopen

in conjunction with a "changed circumstances" asylum appli-

cation. Petr.’s Br. at 22. To support her argument, she high-

lights language in both the INA and its implementing

regulations that purportedly allows for exceptions to the

requirement of a motion to reopen. For example, she stresses

that under 8 U.S.C. § 1229a(a)(3), removal proceedings are

"the sole and exclusive procedure for determining whether an

alien may be admitted to the United States"—but only

"[u]nless otherwise specified in this chapter." She contends

that section 1158(a)(2) specifies such an instance where an IJ

may determine an alien’s admissibility outside a removal pro-

ceeding. She further notes that under 8 C.F.R. § 1208.4(b)(3),

an alien whose removal proceedings have concluded must file

an asylum application "in conjunction with a motion to reopen

. . . where applicable." 8 C.F.R. § 1208.4(b)(3) (emphasis

added). She stresses that the words "where applicable" indi-

cate that a motion to reopen is not required in all instances

and argues that "successive applications submitted pursuant to

8 U.S.C. § 1158(a)(2) are one instance" where a motion to

reopen is not required. Petr.’s Br. at 21.

In response, the government relies primarily on In re C-W-

L-, 24 I. & N. Dec. 346 (BIA 2007), which concerned a Chi-

nese alien in a situation identical to Zheng’s. In C-W-L-, a

Chinese alien entered the United States in 1990 without a

valid entry document. Immigration authorities determined that

he was inadmissible and issued him a Notice to Appear in

1997. While still in the United States, he married a lawful per-

manent resident alien of the United States in 1998 and had

two children in 1999 and 2000. He applied for asylum and

withholding of removal based on the birth of his children and

China’s one-child family planning policy. In 2001, an IJ

denied the alien’s asylum application and the BIA affirmed

this decision in 2003. In 2004, after the birth of his third child,

the alien filed a "Motion to File Successive Asylum Applica-

tion pursuant to 8 C.F.R. § 208.4," again arguing that he could

ZHENG v. HOLDER 11

show a well-founded fear of persecution if returned to China.

In the motion, he argued that a motion to reopen was not nec-

essary and that the general one-year deadline and one-

application limitation on asylum applications did not apply to

him.

In denying the alien’s motion, the BIA rejected his conten-

tion that 8 U.S.C. § 1158(a)(2)(D), "standing alone, is a basis

for filing an additional asylum application, notwithstanding

the fact that he is currently under an order of removal and is

barred . . . from filing an additional asylum application,

except where accompanied by a timely motion to reopen or

justified by changed country conditions." 24 I. &. N. Dec. at

348. The BIA held that section 1158(a)(2)(D) "simply does

not apply to a situation where an asylum applicant has already

been ordered removed." Id. at 350. The BIA stressed that 8

U.S.C. § 1229a(c)(7)(C), which allows an alien to file only

one motion to reopen within 90 days of a final removal order,

"applies to situations like the one at bar, where an alien seeks

to reopen proceedings in which he previously was ordered

removed from the United States." Id. at 349. To allow an alien

to file "an asylum application at any time, including when a

final order of removal is in place, would render section

[1229a(c)(7)(C)(ii) and its accompanying regulation, 8 C.F.R.

§ 1003.2(c)(3)(ii)] superfluous and would negate the effect of

regulations granting jurisdiction to this Board and the Immi-

gration Courts." Id. at 351.

The BIA resolved the tension between 8 U.S.C.

§ 1158(a)(2)(D)—which purports to allow an alien to file an

asylum application whenever the alien can show material

changed circumstances—and 8 U.S.C. § 1229a(c)(7)(C)—

which allows only one motion to reopen within 90 days of a

final order of removal unless the alien can show changed

country conditions—by concluding that the former "applies in

conjunction with" the latter. Id. at 353. Before the entry of a

final removal order, or within the 90-day deadline for a

motion to reopen, an alien may file an asylum application

12 ZHENG v. HOLDER

showing material changed circumstances. "Outside of those

circumstances, changed country conditions must be shown."

Id.

The government argues that C-W-L- constitutes the BIA’s

interpretation of its governing statute, the INA, and is there-

fore entitled to deference under Chevron, U.S.A., Inc. v. Natu-

ral Resources Defense Council, Inc., 467 U.S. 837 (1984).

The government also emphasizes that the Second, Third,

Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have

deferred to the BIA’s interpretation in C-W-L- and have held

that an alien must comply with the timeliness and numerical

requirements on motions to reopen when seeking adjudication

of a new asylum application after a final removal order has

been issued. See Liu v. Attorney General, ___ F.3d ___, 2009

WL 250102 (3d Cir. Feb. 4, 2009); Wei v. Mukasey, 545 F.3d

1248 (10th Cir. 2008); Zhang v. Mukasey, 543 F.3d 851 (6th

Cir. 2008); Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008);

Zhen Dong v. Mukasey, 286 F. App’x 146 (5th Cir. July 11,

2008); Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008);

Zheng v. Mukasey, 509 F.3d 869 (8th Cir. 2007); Cheng Chen

v. Gonzales, 498 F.3d 758 (7th Cir. 2007).

Like our sister circuits, we defer to the BIA’s reasonable

interpretation of the asylum procedures outlined in 8 U.S.C.

§ 1158(a)(2)(D) and the removal and motion to reopen proce-

dures outlined in 8 U.S.C. § 1229a(c)(7). Although Zheng

argues that C-W-L- renders section 1158(a)(2)(D) meaning-

less, the BIA noted in C-W-L- that to give section

1158(a)(2)(D) the meaning Zheng proposes would conse-

quently render section 1229a(c)(7)(C) superfluous. The BIA’s

harmonization of section 1158(a)(2)(D) and section

1229a(c)(7)(C) is a reasonable interpretation of the INA and

does not constitute an abuse of discretion. See Zhang, 543

F.3d at 858 (holding that "the BIA’s interpretation comports

with the text and structure of the statute," as well as "with the

acknowledged policies underlying our asylum law"). Zheng’s

argument is insufficient to overcome the deference that must

ZHENG v. HOLDER 13

be given to agency interpretations of their own governing stat-

utes. See Chevron, 467 U.S. at 837.

We defer to the BIA’s reasonable interpretation of the INA

in C-W-L-. Because Zheng failed to file a motion to reopen

showing changed country conditions with her successive asy-

lum application, the BIA did not err in dismissing her motion

to file a successive asylum application. Nor did it err in refus-

ing to consider her arguments that a motion to reopen was not

required.

C.

Lastly, Zheng argues that she was entitled to a hearing on

her claim for withholding of removal under the Convention

Against Torture and the U.N. Protocol. She contends that "the

denial of the right to a hearing on a claim for asylum, with-

holding of removal, and Convention Against Torture claim

violates U.S. law as well as obligations under the U.N. Proto-

col Relating to the Status of Refugees, the Convention

Against Torture, and [her] Due Process rights." Petr.’s Br. at

33. Zheng bases this argument in part on 8 U.S.C.

§ 1231(b)(3)(A), which states that "the Attorney General may

not remove an alien to a country if the Attorney General

decides that the alien’s life or freedom would be threatened in

that country because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion."

Arguing that the CAT and U.N. Protocol impose a non-

discretionary duty on the United States to provide asylum,

Zheng emphasizes that even an alien subject to a final

removal order may seek relief from the Attorney General

under section 1231(b)(3)(A).

The government argues in response that Congress has

established a "specific, domestic statutory scheme" to provide

asylum to refugees and points out that "[n]either the U.N. Pro-

tocol nor the CAT [is] self-executing." Respt.’s Br. at 35, 36.

Noting that the U.N. Protocol and the CAT "do not create pri-

14 ZHENG v. HOLDER

vate rights that petitioners can enforce beyond those contained

in their implementing statutes and regulations," the govern-

ment emphasizes that Zheng has failed to establish a "right to

any relief available under these provisions." Id. at 35. The

government contends that the procedures established by the

INA and its implementing regulations "provide[ ] the control-

ling authority for determining whether refugee status may be

conferred on an alien" and that "[g]eneralized statements from

international sources provide no foundation to displace those

authorities with a conclusion contrary to the one reached by

the Board in this case." Id. at 38.

We find the government’s position persuasive. First, to the

extent that Zheng argues that 8 U.S.C. § 1231(b)(3)(A) allows

her to seek relief without filing a motion to reopen showing

changed country circumstances, the plain text of 8 U.S.C.

§ 1229a(c)(7)(C) contradicts this contention. Section

1229a(c)(7)(C), in placing timeliness and numerical limita-

tions on motions to reopen, explicitly encompasses section

1231(b)(3)(A). See 8 U.S.C. § 1229a(c)(7)(C)(ii) ("There is

no time limit on the filing of a motion to reopen if the basis

of the motion is to apply for relief under sections 1158 or

1231(b)(3) of this title and is based on changed country cir-

cumstances arising in the country of nationality or the country

to which removal has been ordered . . . ." (emphasis added)).

Second, as the government points out, neither the U.N. Pro-

tocol nor the CAT is self-executing. See Chen, 524 F.3d at

1033 (rejecting a claim similar to Zheng’s on the ground that

the alien "has not established her right to any relief that may

be available under any of these provisions . . . and she has

failed to show how any of them is violated by the application

of reasonable procedural requirements for the adjudication of

her claims"). Rather, they are effectuated through a statutory

scheme that Congress has established, and which the Attorney

General has implemented through regulations governing both

the BIA and the procedures available to aliens seeking entry

to the United States. To the extent that Zheng claims a right

ZHENG v. HOLDER 15

to a hearing on her asylum application based on the U.N. Pro-

tocol or the CAT, such a claim is not cognizable. Cf. In re

Medina, 19 I. & N. Dec. 734, 740 (BIA 1988) (declining to

find that the Fourth Geneva Convention is "self-executing"—

i.e., that it creates "rights that are privately enforceable by

individuals in the absence of implementing legislation"—and

noting that "the nature of the requirement to ‘ensure respect’

for the Convention raises foreign policy issues committed to

the political branch of government . . . rather than [to] con-

ventional adjudication" (citations omitted)).

V.

For the reasons stated above, the BIA’s decision is

affirmed. Zheng’s petition for review is

DENIED.