Zhang v. Mukasey (6th Cir., 10/8/08, No. 07-3355)

BOGGS, Griffin, Gibbons

  Petitioner was detained on entry into the U.S. in 2000 and applied for asylum.  The IJ denied the asylum/withholding/CAT claims finding that petitioner had filed false documents, her testimony was not credible, and her applications were frivolous.  Petitioner did not leave the country, married, and had two U.S. citizen children. 

  In 2007 petitioner filed a MTR and a successive asylum application arguing that (a) the 2002 enactment of China's population control statute was a change of circumstances allowing reopening of her earlier denied asylum application due to changed country conditions under 1229(c)(7)(C)(ii); and, (b) her successive asylum application was allowed under under 1158(a)(2)(D) due to her own changed circumstances of having given birth to two children.  The 6th Cir. disagreed with petitioner and denied the PFR. 

  1.  The 6th Cir. found that the BIA's denial of the MTR was not an abuse of discretion and that petitioner had not proven that she would face persecution in China because the BIA did not credit a letter from petitioner's friend without any other corroboration.  Petitioner had not overcome her earlier credibility problem and had not shown changed country conditions that would lead to her persecution.

  2.  The 6th Cir. found that the BIA's determination that "additional applications for asylum are only permissible if they are accompanied by a motion to reopen supported by changed country circumstances" was a reasonable interpretation of the INA and had also been found so by the five other circuits that had ruled on the issue.  Since petitioner did not win on her MTR she could not win on her successive asylum application.  The 6th Cir. noted that its earlier decision in Haddad was either distinguishable or wrong and now overruled consistent with Brand X.

  3. "We agree with our sister circuits and conclude that the BIA reasonably interpreted §§ 1158(a)(2)(D) and 1229a(c)(7)(C)(ii) of Title 8 as requiring an alien subject to a final order of removal for 90 days or more to make a successful motion to reopen her proceedings prior to consideration of a successive application for asylum."

Read opinion here

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