Xiao Jun Liang v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3713

X IAO JUN L IANG,

Petitioner,

v.

E RIC H. H OLDER, JR.,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A095-928-809

A RGUED A PRIL 19, 2010—D ECIDED N OVEMBER 24, 2010

Before B AUER and S YKES, Circuit Judges, and G RIESBACH,

District Judge. Œ

G RIESBACH, District Judge. Xiao Jun Liang, a citizen of

the People’s Republic of China, arrived in the United

States without a valid entry document on July 30, 2003.

She applied for asylum, withholding of removal and

Œ

Hon. William C. Griesbach, District Judge for the Eastern

District of Wisconsin, sitting by designation.

2 No. 09-3713

protection under the Convention Against Torture (“CAT”),

alleging that she was mistreated by the Chinese gov-

ernment due to her membership in the Democratic Party.

An Immigration Judge (“I.J.”) denied her applications, and

the Board of Immigration Appeals (the “BIA” or “the

Board”) affirmed the decision on March 1, 2004.

Despite the denial of her applications, Liang was not

removed from the United States; nor did she leave the

country voluntarily. On August 24, 2009, almost five-and-

a-half years after entry of the final order of removal,

Liang filed a motion to reopen the proceedings and

again apply for asylum, withholding of removal and

CAT protection, this time on the ground that she

feared persecution in the form of forced abortion and

sterilization under China’s “one-child rule.” The Board

denied Liang’s motion to reopen on October 16, 2009,

and she petitioned this court for review. Finding no

abuse of discretion by the Board, we deny Liang’s petition.

I. Background

As noted above, Liang initially sought asylum and

related relief shortly after her arrival in the United States

on July 30, 2003, on the ground that she was subjected to

mistreatment because of her membership in the Demo-

cratic Party. Liang was nineteen years old at the time.

At the hearing on her application, the I.J. questioned

Liang about her claimed fear of political persecution

and found her not credible. Liang testified that she had

joined the Democratic Party in 1998, was accepted as a

member and was sworn in at the end of 2001. She did not

No. 09-3713 3

know the platform of the Party, however, and did not

have a membership card or any other proof of member-

ship. The I.J. noted there was no indication the party

referred to by Liang exists. The I.J. stated that he had

reviewed the reports issued by various organizations,

particularly the U.S. State Department and the United

Kingdom, and asked Liang whether she recognized any

of the political organizations listed in those reports

which were known to suffer persecution. Liang did not

recognize any of them. Thinking that she may have

meant the China Democracy Party, the I.J. asked Liang if

she recognized the names of any of its leaders, but she

again said she did not. Transcript of Oral Decision of the

I.J. at 2, 3.

The I.J. also found that Liang’s account of how she had

arrived in the United States was not credible. Liang

testified that on December 23, 2001, she was caught

by the authorities distributing pamphlets for the propa-

ganda section of the Party, beaten all over her body and

woke up at home. She testified she remained in hiding

from the end of 2001 until July of 2003, when she was

smuggled to the United States. However, she was ex-

tremely vague about how she traveled to the United

States. She did not know if her parents paid a smuggler

or what her itinerary was. As recounted by the I.J., Liang

testified she traveled through Yunan Province from

her home in the City of Fuzhou located in Fujian

Province, then entered Laos and used a boat to arrive

in Thailand. She testified that she arrived at Chicago’s

O’Hare International Airport on a flight from South

Korea. She maintained that she boarded the flight in

4 No. 09-3713

South Korea after she received a passport from Singapore,

which she then lost or “ripped up” on the flight before

she arrived in the United States. Id. at 2-5.

At the conclusion of the hearing, the I.J. orally denied

Liang’s applications. He concluded it was almost certain

that Liang did not belong to the China Democracy

Party since she was unaware of its activities, its leaders

and what had happened to them, or when it was

founded. Her testimony was inconsistent with the state-

ment she initially gave at the airport upon her arrival in

the United States, and her account of how and why

she left her home in Fujian Province was vague and

implausible. Noting that the existence of a smuggling

ring in Fujian Province was a “well-established fact” and

the average fee for smuggling someone into the United

States from China, according to official reports, was

between $35,000 and $50,000, the I.J. concluded:

I think it is most unlikely, in fact, probably impos-

sible for the respondent to have made the trip

she described on her own. I think the respondent,

when questioned by the Court, has given misleading

information when she was asked direct questions

about how she came here and why she came here.

I am convinced that the respondent’s presence in the

United States had nothing to do with any political

activities of any kind and it does have to do with

her family’s and her desire to find work in the

United States.

Id. at 7. The Board affirmed without opinion on March 1,

2004, making the I.J.’s decision the final agency decision.

Liang did not seek further review.

No. 09-3713 5

On August 24, 2009, Liang filed a motion to reopen

the proceedings, alleging that she now feared persecu-

tion under China’s one-child policy. See 8 U.S.C.

§ 1101(a)(42)(B) ([A] person who has a well founded

fear that he or she will be forced to [abort a pregnancy

or to undergo involuntary sterilization] or subject to

persecution for such failure, refusal or resistance shall

be deemed to have a well founded fear of persecution

on account of political opinion.”). Liang alleged that

since her last hearing she had married Guihua Lin, also

a citizen of China, and given birth to a daughter. At

the time she filed her motion to reopen, Liang was also

pregnant with her second child whose due date was on

or about November 15, 2009. (Liang later gave birth to a

second daughter in late October 2009.) Liang also

alleged that since her hearing on her initial application

for asylum, conditions in China had changed. She

claimed that she had obtained evidence that there had

been an increase in enforcement of China’s family

planning policy through forced abortions and forced

sterilization procedures. Having violated China’s family

planning policy by becoming pregnant with a second

child, Liang claimed that China’s increased enforcement

of the policy gave rise to a well-founded fear of persecu-

tion if she returned.

In her affidavit in support of her motion, Liang re-

counted the dates of her marriage, the birth of her first

child, and the expected birth date of her second child.

Liang also noted that both she and her husband desired

to have additional children. Liang stated that in tele-

phone conversations with her family in China, she had

6 No. 09-3713

learned that over the past year the Chinese govern-

ment had increased the intensity of its enforcement of

the Family Planning Law in her home city of Fuzhou in

Fujian Province. Family members had told her of

several incidents in which women who had given birth

to a second child were forcibly sterilized. She had also

been told of one woman who was forced to abort her

second child and was later sterilized because she

became pregnant during a required waiting period.1

Liang stated her father-in-law had gone to the local family

planning office and inquired about their current practice.

He was told that couples with one child were targeted

for IUD insertions; couples with two children were tar-

geted for sterilization and subjected to monetary penal-

ties. Liang stated that her pregnancy with a second

child so soon after the birth of her first child and without

a birth permit was a serious violation of China’s family

planning law, even though her children were born over-

seas. Once she and her husband arrive home, they will

be required to register their children in order for them

to receive schooling or medical care. Her children will

then be considered Chinese citizens, and she will be

forced to undergo sterilization. It was to avoid persecu-

tion in the form of such forced sterilization that Liang

claimed she was seeking the protection of the United

States.

1

According to Liang, some women whose first child is a girl

may be granted a birth permit for a second child after a four-

year waiting period.

No. 09-3713 7

Along with her affidavit, Liang submitted numerous

other documents, some of which were specific to her

case, such as letters from her father and father-in-law

describing the events she recounted in her affidavit.

Liang also included an April 2009 notice from the

Qianyang Village Committee of Fuzhou City Mawei

District Tingjiang Town. The notice, which appears to

have been sent in response to her husband’s inquiry

about the family planning policy, states that her

pregnancy is in violation of China’s Nationality Law and

directs Liang and her husband to report to the Family

Planning Office within one week after her return to

China for an abortion or, if she has already given birth,

sterilization. The notice also indicates she is to pay a

Social Compensation fee between 60% and 300% of

annual income as a fine. Most of the documents sub-

mitted in support of Liang’s motion, however, were

copies of materials of a more general nature that fall

roughly into four categories: (1) internal documents

purportedly issued by Chinese provincial or local gov-

ernment family planning agencies relating to the imple-

mentation of the one-child policy; (2) excerpts from

United States governmental reports such as the annual

Country Reports issued by the Department of State, or

from proceedings before Congress regarding condi-

tions in China; (3) excerpts from reports of international

organizations concerning China’s family planning

policy; and (4) various articles from the U.S. and interna-

tional press reporting incidents of forced abortions and

sterilizations in various provinces throughout the country.

8 No. 09-3713

Upon its review of the motion and supporting

materials, the Board concluded that Liang had failed to

meet her burden of showing that if the proceedings

were reopened the new evidence would likely change

the result. According to the Board, Liang failed to show

that the family planning policy at the time of her

initial hearing differed significantly from the current

policy. The Board noted that the 2008 State Department

Country Reports On Human Rights Practices indicated that

the Chinese government has “continued its decades-long

family planning policy, relying upon education, propa-

ganda, and economic incentives, as well as on more

coercive measures, including psychological pressure

and economic penalties; that enforcement of the family

planning law varied significantly: that central govern-

ment policy formally prohibited forced abortion or steril-

ization, though there were reports that local officials

had used forced abortion and sterilization to meet

family planning targets in violation of national policy.”

Board Decision at 3. Some of the materials Liang sub-

mitted, the Board noted, predated her 2003 hearing and

did not support her claim of a material change in con-

ditions within the country since that hearing. Other

material had been previously considered by the Board

and found not sufficient to show a material change in

the family planning policy. Much of the documentation

the Board found did not pertain to the area of Liang’s

home and thus was of little relevance, given the Country

Reports statement that enforcement of the policy varies

from place to place.

Addressing the accounts of forced sterilization de-

scribed in Liang’s affidavit and the letter from her

No. 09-3713 9

father, the Board observed that such “anecdotal

evidence . . . does not suffice to show that the family

planning policy has materially changed since the

hearing below,” since “accounts of isolated tragic events

in documented reports, without more, do not neces-

sarily indicate that any one person is at potential risk

of that harm.” Id. Additionally, the Board noted that

Liang had not shown that her situation as the mother

of a United States citizen child who is expecting a

second child is similar to the situations of the women

who were sterilized after bearing children in China. The

Board stated it gave little weight to unsworn relatives’

statements that describe the experiences of others and

were apparently prepared for the purpose of litigation.

Turning to the notice to Liang and her husband from

the village committee, the Board concluded it was

“entitled to virtually no weight, particularly in view of

the prior adverse credibility finding.” Id. at 4. The

notice was unsigned and had not been authenticated

pursuant to 8 C.F.R. § 1287.6, and the Board noted that

the May 2007 Department of State Profile of Asylum

Claims and Country Conditions, of which it took admin-

istrative notice, described widespread fabrication and

fraud in documents from Fujian Province. The Board

further noted that according to Liang’s own evidence,

village committees did not have authority to make

family planning decisions, and it questioned why her

husband would choose to bring the couple’s situation

to the attention of village officials if they truly feared

mistreatment. Finally, as to the various newspaper

articles Liang submitted, the Board noted that it gave

10 No. 09-3713

less weight to anecdotal media accounts than to the

more recent Department of State Profile and Country

Reports. Id.

The Board also concluded that Liang had failed to

make a prima facie showing that she would be subjected

to economic or other harm amounting to persecution.

To the extent she sought reopening for CAT protection,

the Board noted that her motion was untimely and she

had failed to make a prima facie showing of a prob-

ability of torture by or with the acquiescence of a gov-

ernment official. Finally, the Board concluded that Liang

had not shown an “exceptional” situation that would

warrant the exercise of the Board’s limited discretion

to reopen sua sponte. It thereupon denied Liang’s request

to reopen.

II. Discussion

Generally, a motion to reopen removal proceedings

must be filed within 90 days of the date of the final ad-

ministrative order. 8 U.S.C. § 1229a(c)(7)(C)(i). Here,

there is no dispute that Liang’s motion was filed

beyond the 90-day deadline. Her motion was filed on

August 24, 2009, more than five years after the motion

was due. It was therefore untimely.

There is no time limit, however, if the basis of the

motion is to apply for asylum “based on changed country

conditions arising in the country of nationality or

the country to which removal has been ordered . . . .” Id.

§ 1229a(c)(7)(C)(ii). In assessing such a motion, it is im-

No. 09-3713 11

portant to note the distinction between changes in

country conditions and changes in personal condi-

tions. While a change in country conditions can warrant

reopening removal proceedings after the 90-day time

limit has expired, a change in the applicant’s personal

conditions will not. This is because an alien can change

his or her personal conditions over time. “It makes no

sense to allow an alien who manages to elude capture

by the immigration authorities for years after he has

been ordered to leave the country, and has exhausted

all his legal remedies against removal, to use this

interval of unauthorized presence in the United States

to manufacture a case for asylum.” Chen v. Gonzales,

498 F.3d 758, 760 (7th Cir. 2007) (citing Wang v. BIA,

437 F.3d 270, 274 (2d Cir. 2006)).

From the foregoing, it follows that the facts that Liang

had gotten married, given birth to one child, and was

pregnant with another since her previous hearing

do not constitute grounds to reopen the proceedings.

These events represent changes in her personal condi-

tions. See Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir.

2005) (“[T]he birth of Zhao’s children is merely a change

in ‘personal circumstances’ in this country.”). In order

to reopen her removal proceedings, Liang was required

to show that a material change had occurred in the con-

ditions within China. In an effort to meet this burden,

Liang alleged that China’s “one-child” policy was

being enforced more stringently in her home province

than when she first applied for asylum. The Board con-

cluded that the materials she submitted failed to show

that either China’s family planning policy or the enforce-

12 No. 09-3713

ment of it had materially changed and that, in any

event, Liang had failed to make a prima facie showing

of eligibility for relief. It is this decision we are called

upon to review.

“Motions to reopen are comparable to motions for

rehearing or for a new trial, and thus are ‘strongly

disfavored.’ ” Fessehaye v. Gonzales, 414 F.3d 746, 752 (7th

Cir. 2005) (citing I.N.S. v. Doherty, 502 U.S. 314 (1992)).

Indeed, this is especially true in immigration pro-

ceedings “where, as a general matter, every delay works

to the advantage of the deportable alien who wishes

merely to remain in the United States.” Doherty, 502 U.S.

at 323. Because the Board has “broad discretion” in this

area, its decisions are reviewed under the “deferential,

abuse-of-discretion standard of review.” Kucana v.

Holder, ___ U.S. ___, 130 S.Ct. 827, 834 (2010); Juarez

v. Holder, 599 F.3d 560, 565 (7th Cir. 2010). Under this

“highly deferential” standard, we will uphold the

Board’s decisions to deny Liang’s motion to reopen

“unless it was made without a rational explanation,

inexplicably departed from established policies, or

rested on an impermissible basis such as invidious dis-

crimination against a particular race or group.” Mansour

v. I.N.S., 230 F.3d 902, 907 (7th Cir. 2000); Pelinkovic v.

Ashcroft, 366 F.3d 532, 536 (7th Cir. 2004).

A major obstacle to Liang’s motion to reopen her

removal proceedings based on changed country condi-

tions was the fact that China’s “one-child” policy

did not represent a change in the country’s conditions.

The one-child policy is not new; in fact, it is more than

No. 09-3713 13

thirty years old. See Stanford M. Lin, China’s One-Couple,

One-Child Family Planning Policy as Grounds for Granting

Asylum, 36 Harv. Int’l L.J. 231, 234-35 (1995). It was in

response to China’s vigorous enforcement of the policy

and the Board’s holding in In re Chang, 20 I. & N. Dec. 38,

43 (BIA May 12, 1989), that China’s one-child policy was

not “on its face persecutive” that Congress expanded

eligibility for asylum to expressly include fear of coercive

population control measures such as forced sterilization

and abortion as part of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, Div. C, 110 Stat. 3009, 3009-546. See Ke Zhen

Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 91-92 (2d Cir.

2001) (discussing background to change in law). Thus,

unless Liang could show that China’s enforcement of

the policy had become more stringent in her province

since her last hearing, she could not prevail. Moreover,

to make out a prima facie case, Liang was required to

show a “reasonable likelihood” of establishing eligibility

for asylum (or withholding of removal or CAT protec-

tion) if the case were reopened. Kay v. Ashcroft, 387

F.3d 664, 674 (7th Cir. 2004).

In holding that Liang had failed to show that the

family planning policy at the time of her hearing in 2003

differed significantly from the current policy, the Board

noted that the 2008 Country Reports for China indicate

that “the Chinese government has continued to imple-

ment its decades-long family planning policy, relying

upon education, propaganda, and economic incentives,

as well as more coercive measures, including psycho-

logical pressure and economic penalties . . . .” Board

14 No. 09-3713

Decision at 3. It should go without saying that a con-

tinuation of a policy is not a change. The Board acknowl-

edged that the Country Report also stated that enforce-

ment of the policy varied significantly throughout the

country and that, while the central government policy

formally prohibited forced abortion or sterilization, there

were reports that local officials had used such tactics

in violation of official policy to meet family planning

targets. Id. Yet the Board found the materials submitted

by Liang in support of her claim of a material change

in circumstances unpersuasive. In its decision denying

Liang’s motion, the Board explained why.

Some of the materials submitted by Liang in support

of her motion predated the 2003 hearing before the I.J.

These included: (1) excerpts from China’s 1986 entry

and exit control law; (2) the 1999 Chan Le City Family

Planning Q&A Handbook; and (3) the 2002 Population

and Family Planning Regulation of Fujian Province. This

material could have been relevant had it demonstrated

that the rules governing China’s population policy or

their enforcement were more lenient at that time

than they are today. But that is not what the material

suggests. Instead, to the extent it is relevant at all, the

pre-2003 material Liang submitted suggests that the basic

rules governing China’s population policy and its en-

forcement have not materially changed.

Liang also submitted documents describing popula-

tion control policies and their enforcement in cities,

towns and provinces other than her native Fuzhou City

in Fujian Province. For example, she submitted a family

No. 09-3713 15

planning notice, social compensation fee schedule, and

other materials concerning population control from

other towns and cities. She also offered multiple news-

paper articles describing coercive enforcement measures

in Zhejiang Province, Guanxi Province, and other towns

or counties outside of Fuzhou City. The only articles

relating to Fuzhou City refer to an increase in enforce-

ment efforts which were intended to counter an antici-

pated baby boom in 2007, the year of the “golden pig,”

considered an auspicious year to have a child. (A.R. 410;

413.) Given the statement of the more recent State Depart-

ment Country Reports that enforcement of the family

planning policy varied over time and from place to place,

however, the Board concluded these materials did not

pertain. It is also noteworthy that the articles fail to indi-

cate whether similar enforcement efforts took place

prior to 2003. Absent evidence of China’s enforcement

efforts prior to Liang’s original hearing, it is impossible

to conclude that the offered evidence shows a change in

country conditions.

In fact, the only evidence Liang references in her brief

that specifically addressed whether enforcement of

China’s family planning policy had changed was her

own affidavit in which she stated that “[i]n phone

contacts with my family in China, I was told in the past

year that the Chinese government increased the tensity

[sic] of the enforcement of the Family Planning Law.”

Liang Aff. ¶ 4. But of course, the Board was not required

to give any weight to her own statement since it was

based on second-hand accounts and not her personal

knowledge. See Lin v. Holder, ___ F.3d ___ (7th Cir. 2010)

16 No. 09-3713

(“[W]e cannot disagree with the Board’s determination

that the items were unreliable because they were not

based on personal knowledge.”). This is particularly true

in light of the Board’s prior adverse credibility finding.

See Huang v. Mukasey, 534 F.3d 618, 622 (7th Cir. 2008)

(“His own and his wife’s affidavits, and unauthenticated

and possibly fraudulent documents purportedly from

the church and the village government, were not evi-

dence that could be assumed to be uncontaminated by

his demonstrated propensity to lie to obtain asylum.”).

Liang argues that the Board failed to properly evaluate

the letters from her father and father-in-law which re-

counted several instances of what were described as

forced sterilizations and a forced abortion performed on

local women who had violated China’s family planning

policy. But again, the Board was not required to accept

these unsworn, second-hand descriptions of the ex-

perience of others. Moreover, none of the incidents that

are described involved a forced sterilization or abortion

performed on a parent who returned to China either

pregnant or with children born abroad. Nor was there

any indication from the copies of sterilization and abor-

tion certificates that accompanied the letters that the

described procedures had been coerced. Liang’s state-

ment that these procedures were coerced does not

make them so. Finally, even if the incidents described

by Liang’s father and father-in-law did involve coerced

sterilizations, it is difficult to see how it would constitute

evidence of changed country circumstances. See Chen v.

Gonzales, 489 F.3d 861, 862 (7th Cir. 2007) (“Affidavits

describing some auto accidents or shootings in Illinois

No. 09-3713 17

would not demonstrate that the risk from these events

in Illinois is substantial. Likewise affidavits relating

personal experiences or tales about sterilizations in

Fujian would not establish that a person in Chen’s pos-

ition faces a material risk that this would happen to her.”).

Liang relies heavily on the notice from the Qianyang

Village Committee and criticizes the Board’s refusal to

accord it any weight based on the I.J.’s finding that she

was not credible at the previous hearing. But the Board

offered more than the adverse credibility finding in

support of its rejection of the village notice. The Board

noted that the notice was unsigned and had not been

properly authenticated pursuant to 8 C.F.R. § 1287.6. The

Board questioned why Liang’s husband would choose

to bring to the village officials’ attention the couple’s

situation and took administrative notice of the May 2007

China Profile of Asylum Claims and Country Conditions

issued by the United States Department of State which

described “widespread fabrication and fraud in docu-

ments from Fujian Province.” Board Decision at 4.

Finally, the Board noted that the village notice

specifically references the national law which expressly

prohibits forced abortion and sterilization. Id. Under

the circumstances, we cannot say that its rejection of

the notice was arbitrary or unreasonable.

Liang cites this Court’s decision in Xiu Zhen Lin v.

Mukasey, 532 F.3d 596 (7th Cir. 2008), and various cases

from other circuits in support of her contention that the

Board abused its discretion in denying her motion to

reopen. In Lin the Court found that the 2006 State De-

18 No. 09-3713

partment Country Report included a “stronger state-

ment” regarding the enforcement of the family planning

policy than found in the Country Report for 2001, the

year in which the petitioner in that case was ordered

removed. 532 F.3d at 597. The petitioner in Lin also sub-

mitted a document similar to the village notice Liang

submitted in this case indicating the petitioner would

be targeted for sterilization upon her return. This

Court found such evidence indicative of changed

country conditions and concluded that the petitioner

had carried her burden of showing changed country

conditions that entitled her to reopen her removal pro-

ceeding. Liang argues that the same conclusion

follows here.

This case differs from Lin, however, in several

important respects. Liang left China in 2003, and her

initial hearing took place in October of that year.

Given these facts, the relevant Country Report is the 2002

Report, not the 2001 Report which the Court found sug-

gestive of lax enforcement of the policy. The 2002

Report stated there were “isolated incidents” of forced

abortions and sterilizations and “the frequency of such

cases was believed to be declining.” The 2007 Report

likewise stated that “[t]here continued to be sporadic

reports of violations of citizens’ rights by local officials

attempting to reduce the number of births in their re-

gion.” Clearly, “isolated incidents” in 2002 and “sporadic

reports” in 2007 hardly support an allegation of changed

conditions—instead they indicate that conditions

have remained largely the same. The more recent report

contains no indication of any material change in enforce-

No. 09-3713 19

ment of the long-standing policy. Further, unlike the

village letter in Lin the authenticity of which was

conceded, the Board found the village notice offered by

Liang wholly unreliable for the reasons described above.

Finally, in Lin the government suggested that the im-

position of a fine or social compensation fee for vio-

lating the family planning policy and the consequences

for nonpayment could never amount to persecu-

tion. Here, by contrast, the Board acknowledged that “a

showing of extreme economic deprivation may qualify

as persecution,” Board’s Decision at 4, but noted that

Liang had failed to make a prima facie showing that she

would be subject to financial penalties that would have

such an impact upon her.

Liang also cites several Eleventh Circuit decisions to

support her position. In both Yaner Li v. Gonzales, 488 F.3d

1371 (11th Cir. 2007), and Xue Xian Jiang v. Attorney

General, 568 F.3d 1252 (11th Cir. 2009), the court held

that the petitioners met their burden for reopening

because of changed country conditions by presenting

personal affidavits, affidavits from relatives in China,

State Department reports, Congressional testimony,

and newspaper articles related to changed country con-

ditions. In reopening the cases the Eleventh Circuit

relied in part on the Board’s own determination that the

affidavits were not “incredible.” Here, in contrast,

the only affidavit Liang offered was her own based on

second-hand information and burdened with the

earlier adverse credibility finding.

At argument, counsel for Liang criticized the Board for

failing to separately identify and discuss each and every

20 No. 09-3713

document submitted in support of her motion to reopen.

In fact, however, the Board carefully catalogued and

summarized the material counsel submitted. To the

extent more detailed analysis was not provided, it

seems clear the Board was hampered in its effort by

number of documents counsel submitted and the

manner in which the material was presented. As the

Board noted,

Counsel has filed voluminous materials that are

not tabbed or consecutively paginated, and that

are sometimes duplicative, poorly photocopied,

reversed, truncated, and/or not single-sided

copies. He has also submitted originals, which

were not requested. Counsel has not complied

with the filing guidelines in Chapter 3.3 of the

Board’s Practice Manual.

Board Decision at 2, n. 1. The Board also noted that

many of the documents submitted bore little or no rele-

vance to Liang’s claims. It is difficult to fault the Board

for failing to focus more directly on the handful of the

400 pages of documents submitted in support of the

motion that counsel now claims are key. In any event,

the Board is “not required to write an exegesis on every

contention.” Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.

2008). It is merely required to “consider the issues

raised, and announce its decision in terms sufficient to

enable a reviewing court to perceive that it has heard

and thought and not merely reacted.” Id. The Board

has done so here.

Finally, counsel emphasized at argument Liang’s claim

that China’s policy had specifically become more

No. 09-3713 21

stringent with respect to violations of the one-child

policy by Chinese citizens giving birth abroad. In particu-

lar, he cited an April 2007 report by Susanna Liu, a

United States Customs Citizenship and Immigration

Services investigator for the Guangzhou, China sub-office.

The Liu Report was created in response to numerous

requests from Department of Homeland Security offices

seeking information regarding the treatment of foreign

born children under China’s population policy and con-

denses and evaluates numerous statements from the

Fujian Province Population and Family Planning Com-

mission (“the Commission”). (A.R. 141-150.) Commenting

on this same report, the Third Circuit recently noted in

an unpublished decision that “[a]lthough the Liu

Report contains language indicating that foreign-born

children may be counted against parents for purposes

of family planning compliance, neither it nor the 2007

Country Report stated that sterilization would be the

sanction for violating the family planning policy.” Yan Feng

Pan v. Attorney General of U.S., 375 Fed. Appx. 252, 253

(3d Cir. 2010). Indeed, the May 2007 China Profile of

Asylum Claims and Country Conditions referenced by the

Board in its decision states:

Consulate General officials visiting Fujian have

found that coercion through public and other

pressure has been used, but they did not find any

cases of physical force employed in connection

with abortion or sterilization. In interviews with

visa applicants from Fujian, representing a wide

cross-section of society, Consulate General Officers

have found that many violators of the one-child

22 No. 09-3713

policy paid fines but found no evidence of forced

abortion or property confiscation.

Profile at ¶ 99. The Profile also noted that “U.S. officials in

China were not aware of the alleged official policy, at

the national or provincial levels, mandating the steriliza-

tion of one partner of couples that have given birth to

two children, at least one of whom was born abroad.” Id.

at ¶ 110. In the face of this evidence, the Board’s conclu-

sion that Liang had not shown a change in country con-

ditions was not an abuse of discretion.

III. Conclusion

The Board gave a rational explanations for its conclu-

sion that Liang failed to show changed country condi-

tions in her home province since the time of her initial

asylum hearing. The decision did not inexplicably

depart from established policies or rest on an impermis-

sible basis. For these reasons, the petition for review

is D ENIED.

11-24-10