Zhang v. Holder, No. 08-15245 (11th Cir. June 30, 2009) 

Barkett, Fay, and Wilson (per curiam)  

Mei Ya Zhang, a native of China, entered the U.S. without inspection.  After receiving an NTA, she applied for asylum, withholding of removal, and protection under CAT.  Upon denial of her application by the IJ, Zhang appealed to the BIA, which ultimately issued a final order affirming the IJ’s decision in 2005.  

After the BIA’s dismissal of her appeal, Zhang married, gave birth to two U.S.C. children, and converted to Christianity.  In 2008, Zhang moved the BIA to reopen because she feared being forcibly sterilized under China’s one-child family policy and losing her freedom of religion if she returned to China.  

Zhang conceded that she moved to reopen almost three years after her removal order became final, much later than the statutory 90-day filing deadline (8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2)).  However, she argued that she was exempt from the filing deadline due to changed country conditions.  According to 8 U.S.C. § 1229a(c)(7)(c)(ii), the time limit is inapplicable if the alien can demonstrate “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 been discovered or presented at the previous proceeding.”  Zhang submitted much evidence in support of her application, including documents about China’s family planning policies and its treatment of Christians, as well as various reports from the U.S. Department of State on human rights practices and country conditions in China. 

The BIA dismissed Zhang’s motion to reopen based on its conclusion that she had failed to show a material change in China’s existing family planning policies and its determination that some of her evidence was incredible and unauthenticated.  Furthermore, the BIA found that Zhang’s claim was principally based on changed personal circumstances rather than increased enforcement of China’s one-child policy. 

The only issue Zhang raised before the Eleventh Circuit was her allegation of changed country conditions with respect to China’s one-child policy and the birth of her two children. The Court, noting that the INA expressly recognizes forced abortions and sterilizations as a type of persecution based on political opinion, found that Zhang had presented sufficient record evidence to show that country conditions had changed.  The Court found that the BIA had acted in an “arbitrary or capricious” manner by overlooking, failing to address, and ignoring, evidence that corroborated Zhang’s claims, including reports from the Department of State and a 2005 Directive from Zhang’s county township committee which stated that, effective January 1, 2006, couples who violate the one-child policy will be fined, women who have more than one child shall be inserted with an intrauterine device if not pregnant, women who are pregnant after their first child shall undergo an abortion, and one party of the couple will be sterilized if the violation was serious. 

Given that China’s one-child policy was being enforced much more stringently than when Zhang was originally ordered removed, the Court granted Zhang’s petition, vacated the BIA’s order and directed the BIA to reopen proceedings. 

Read opinion here.