The court, addressing an issue of first impression, held that Chinese asylum applicants could not establish changed circumstances sufficient to satisfy the exception to the time and numerical bars applicable to a motion to reopen based on the birth of children in the United States and the threat of forced sterilization. (He v. Gonzales, 9/4/07).

He v. Gonzales, (9th Cir. Sept. 4, 2007)

    We hold that the birth of a child outside the country of nationality is insufficient, on its own, to establish changed circumstances within the meaning of 8 CFR §1003.2(c)(3)(ii). Because Petitioners have provided insufficient independent support to excuse their second and untimely motion to reopen, the BIA did not abuse its discretion when it denied the motion.

Petitioners, husband and wife, are citizens of China. They sought to reopen their removal orders after the birth of two children in the United States. Petitioner husband initially fled to the United States because he feared he would be subjected to a vasectomy after the unauthorized birth of his first child in China. His wife fled to the United States after him and was pregnant with their second child at the time of their removal hearing.

The immigration judge denied asylum and withholding of removal finding that Petitioners had not established a well-founded fear of persecution. The BIA dismissed Petitioners' separate appeals in a consolidated decision. While their initial petition for review was pending with the Ninth Circuit, Petitioners filed their first motion to reopen, seeking protection under the Convention Against Torture. The BIA denied the motion as untimely. Three years later, Petitioners filed a second motion to reopen alleging that they would be subject to forced sterilization based on the birth of their second United States citizen child. The BIA denied the motion as time and number barred, and Petitioners filed a second timely petition for review with the Ninth Circuit.

The Ninth Circuit began its analysis by noting that typically petitioners are limited to filing one motion to reopen within 90 days of the date of a final order of removal. 8 CFR §1003.2(c)(2). The court also noted that Petitioners in this case argued that their motion fell within in an exception to the time and numerical limitations, specifically the exception for "changed circumstances arising in the country of nationality" under 8 CFR §1003.2(c)(3)(ii). Petitioners claimed that the birth of their second child in the United States (their third child in total) would cause them to be subjected to forced sterilization upon their return to China.

The court stated that it has never addressed the issue of whether an asylum applicant can establish changed circumstances, sufficient to satisfy the exception to the time and number bars applicable to a motion to reopen, based on the birth of children in the United States and the resulting threat of forced sterilization if returned to China. It looked to both the Second and Seventh Circuits which have held that the birth of children in the United States is not a changed circumstance arising in the country of nationality. See, e.g., Zheng v. Dep't of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) and Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005). The court also noted that in an unpublished decision, the Eleventh Circuit reached a similar result. See Xiao v. U.S. Att'y Gen., 219 F. App'x 862, 865 (11th Cir. 2007). The court noted that in a recent case, the Second Circuit articulated a persuasive policy reason against permitting an applicant to alter his personal circumstances in order to reopen his case. See Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006). In that case the Second Circuit condemned the practice of individuals altering their person circumstances as "gaming of the system . . .[finding it] is not tolerated by the existing regulatory scheme." Id.

The Ninth Circuit held that it would join its sister circuits in finding that the birth of children outside of the country of origin is a change in personal circumstances that is not sufficient to establish changed circumstances in the country of origin within the regulatory exception to the time and number limitations under 8 CFR §1003.2(c)(3)(ii). The court reiterated that both extra-circuit case law and a straightforward reading of the regulation's text suggest that child birth alone is insufficient. The court held that absent evidence of changed circumstances in China, it must deny the petition for review. The court concluded that Petitioners provided insufficient supporting documentation to establish changed conditions in China. The court noted that the two documents submitted with Petitioners' second motion to reopen were not persuasive. The first, a sworn statement from Petitioner wife, stated that one of her friends gave birth to three children in Holland and was forcibly sterilized when she returned to China. The court found, however, that Petitioner wife gave no dates in her affidavit and so it was it was not sufficient to establish changed circumstances in the country of origin. The second document was an unauthenticated translation of a Chinese document titled, "Must Knows About Marriage and Birth." The court noted that this document was dated prior to the issuance of the BIA's decision in Petitioners direct appeal from the IJ decision, and thus it was insufficient to establish changed circumstances in China.

Based on the above reasoning, the court found the BIA did not abuse its discretion and denied the petition for review.

[Oddly, in footnote 9, the court finds that Petitioners can file a new asylum application under INA §208(a)(2)(C), which allows for the filing of multiple or untimely asylum applications based on a change in personal circumstances. As similar finding was also made in a Second Circuit concurring opinion cited in the footnote. The author notes that because Petitioners have been ordered removed, the asylum office would not have jurisdiction over their case and their only means of having a new asylum application considered is through a motion to reopen, a motion that in this case was denied.]

Cite as "AILA InfoNet Doc. No. 07101562 (posted Oct. 15, 2007)"