And we'll hear you again in a few minutes. But this time with Mr. Cantor on the other side who has been taking note. Are you also oil? Yes. So you work in the same office? Yes, we do. You know each other? Yes. You didn't want to share the argument. Go ahead. No. He gets up again now. Everything I said before stands the same on this case right now. Okay. Well then my question is if any of these people that you represent in the eight cases are not from Fujian province. Then what is the basis for us to grant the petition for review? Well those cases are significantly weaker than those from Fujian province and the only rationale that I would ask the court to follow is each year the State Department adds more and more provinces to the list of those that are increasing their campaign to a mandate and enforce a one child policy. And if it's 2005 was in lead gym province of 2006 and flu gym province or argument is 2007 and 2008 it will continue in all other provinces. So we should grant a petition for review on anticipatory decisions by the other provinces. Boy, I mean, I see
. That's about the straight argument. I certainly understand the court's. It's a strange and strange. Concern regarding existing evidence but I would remind the court that this is communist China and it's extremely difficult to extract official documents from that country. So as they come out. I have to ask the evidence before. Okay. Then I would only say that the evidence before you shows an increased enforcement of the one child policy in Fujian province and based upon that and the official document submitted with the motion to reopen we would ask the court to remand the case back to the BIA to allow us to supplement the record for them to decide if all the evidence in total establishes a change or worse in country condition. Thank you. That's accurate. That's all. Yes, sir. How much of a phenomenon is there? We're dealing with children born in a foreign country. In this case, the United States. But surely maybe in other countries. Is there some phenomenon of mass migration back to China? People who've had children born in the United States? Only advice
. Only advice picks them up, you honor. And now in other countries, it's just different because I had a client from Japan. She had a child in Japan. They were sent back to China and what happened to her is what were alleged to happen. You were from Japan and she was sent to China? She was from China. She went to Japan. She had her second child. She went back. No, of course not. I'm just relating to you that it does happen in other countries. Is there a mass removal back to China? No, that for the United States, somebody United States, other than the ones that are deported, that's really in contact with him. That's a handful. I mean, the notion, this country of a billion three, if we send back a thousand couple of people with children, I mean to say we can postulate what a policy, a nationwide policy, some are based on a few hundred children. That sounds strange. Well, go back to Judge Gremers' question, which is, wouldn't we be encouraging more illegal aliens from China if we then said that they could have a silent on the ground that they had two children or three children here? I personally understand the slippery slope argument. And I hope that the answer is no, because our border control will prevent people from coming in here legally
. But I would just... I've been so good so far. I agree. But once they're here, once they're in the system, they are afforded to process rights. Before they come, no, they don't deserve any rights, and they shouldn't come here to seek these benefits of our border. But once they're here, they're in our system. It's my responsibility to advocate on the behalf of the law, to send the right to file this application. We can send back children born in the United States, their American citizens. That's correct, but the applicants will always testify and they have in the past that says, if I am removed to China, I will bring my family with me. Well, if one wants to do it, that's up to them. It is. If they have somebody who will take the child here, they..
. The family unity will normally prevent that, and people... Well, that's what... I can only stay based upon my personal opinion, and everybody that I've represented in front of immigration, to... I'm going to say, yes, we're going to bring our children back. Right. Is there any evidence to support that that happens? I'm gullible, I believe them. Yeah, they are. Okay. Thanks. Let's hear from Mr
. Karen. He may have some new insights into this issue. May I please the court, Ethan Cantor, for the Attorney General. Addressing the case of Zhang versus Mukazi. And I want to pick up on Judge Greenberg's question earlier about jurisdictional limitations, because in this case, jurisdictional limitations figure prominently and significantly, because the petitioner here is merely attempting to relitigate the merits of a claim that was previously rejected in 2002, from which he then failed to petition for review in this court, which he was required to do within 30 days. We don't have any jurisdiction over that petition. You don't have any jurisdiction over that petition, that's correct. Or any question of law or fact related to it under section 242 of the INA or AUSC U.S. Code, 1259 B9, Congress has required the consolidations of all questions of law, in fact, arising out of a particular case. So when the petitioner here in 2002 failed to seek review of his claim, which was that he would be forcibly sterilized in China, in his home province of China, on the basis of the three U.S. citizen children that he fathered in the United States, when he made that claim seeking reopening in 2002, which was denied, and then he failed to seek review of that in this court. Any further claim related to it, indeed, it's the same claim that he then later brought an Emotionary Open in 2006, is borrowed on the basis of the jurisdictional limitations that were..
. Why would that be if he suddenly had new evidence of it? And fouls of motion to reopen. Well, that's... And that's the question. Is it new evidence or evidence merely cumulative of his prior contention? Well, if they denied it on the basis that it had no merit, and there was a petition for review of that, wouldn't we have jurisdiction over the petition? Over the petition and say, yeah, we do have jurisdiction over the last petition for review, but in reviewing that petition, we can't question what was previously adjudicated. Would that be the politically correct way to do it? I believe that the correct approach, which inheres in the statutory scheme, would be that the statute guaranteed an opportunity to seek review of the merits of a claim, which the board did address on the merits. When it first, it denied the claim as untimely, but then in the alternative found that he failed to make out a case based on objective circumstances that he would be persecuted in China. So the merits of the case were intended to be brought and considered by the board on the previous motion to reopen when he had an opportunity. That's what the statute guaranteed, the opportunity that he failed to avail himself of that opportunity. He then becomes barred from seeking to raise the same claim. But if the facts have changed, if his claim is, I'm now filing a motion to reopen because the situation in China, country conditions have changed, and therefore the conditions that were prevalent at the time of my last case are no longer the conditions that prevailed. Why shouldn't he have the opportunity? He may not win, but why shouldn't he have the opportunity, at least to ask the BIA, going back to Judge Remer's question, not for us to say, you'll look at the decision, look at the facts, but send it back to the BIA to decide if it wants to look at the new facts. Well, I think you want to..
. There is a motion for change of circumstances. That's correct. And it is based on change country conditions. That's correct. Okay, so why should we bar him from that? Because though he came up with, though he presented a new declaration and a letter that originated from a village committee in Changlei, Fujian Province stating that he must report for sterilization on his return. In 2002, he presented evidence in the form of his own testimony that he would be forcibly sterilized for the same reason. He's not arguing that he's going to be more sterilized than... Of course not. But it was not as strong the BIA might consider that a letter from the village elders, whoever they are, stands on a different position than his own subjective testimony. We don't know that. You're asking us to deny the petition for a review based on our evaluation of the evidence. Shouldn't that be something that the BIA does? I think your honest question is a good one. Thank you. And, however
... I test the test. I think it's this court's province to determine its jurisdiction. It's this court's proper scope of decision making to interpret the jurisdictional limitations that apply to immigration cases found in Section 242 or AUSC 1252. It's jurisdictional. If he's meeting the requirements of the statute, IE filing a motion to reopen and some evidence, I don't know what the BIA will think of it, some evidence of changed circumstances. I mean, why is that jurisdictional? It's jurisdictional if it is essentially the same claim. And that... I thought you could reopen if there was new evidence. Either the situation was the same in the evidence of it. That's right. If the evidence is material, previously unavailable, and relates to changed circumstances in the country of nationality, and makes out a primafacial case, that's right. I don't want to belabor the jurisdictional point that we've made in the argument
. So, I will move on to the... Are you now telling us... No. No, I'm not abandoning the argument. I am asserting that he is raising the identical claim, the identical contention. Yes, he has presented new evidence or a form in which to hold that contention, but it is identical. And for that reason, on the merits of the question of whether the board properly exercises discretion and denying the motion, on that basis as well, the Court may affirm the board because he failed to show a changed circumstance. Mr. Canner, let me ask you, you represent the government. Yes. There's nobody representing the government in front of us in the other six cases. Does this Court have the obligation, and we may, to go through each of the eight cases, not only the two-weekend for argument, to see whether they're from Fujian province, whether the evidence, the status of the evidence, and whether in the one case that I mentioned, whether it's a mere discretionary decision by the board, and there's nothing we can do about it anyway
. You're saying that we should go through them because we don't necessarily have to decide the same thing for eight cases. That's correct. I think the Court must decide the cases individually in accordance with the board's published framework for assessing these cases, which is, is there a policy? What is the policy? Are the local officials? And your honor was correct that these cases, the board has found, must be assessed on a local basis. Indeed, not just a provincial level, but a city by city or village by village basis. Is there a change? Is there a different, I mean, are there places in Fujian province where they are more relaxed about the number of children? Well, I can't speak to other localities. I'm most familiar with the evidence, in this case, pertaining to the Changle city, in which... Is that the capital of Fujian province? I don't know, Your Honor. The board has determined, you look at the policy, is there been a violation of the policy, and whether the local officials are enforcing a violation of the policy in a way that rises to the level of persecution. And in this case, the board in denying the motion to reopen relied heavily on matter of JWS, which, apart from the particular evidence considered in matter of JWS, is actually more important for what the board found lacking with respect to the evidence in JWS, which proof is similarly lacking in this case. For example, the two key pieces of evidence that Mr. Zang will lie on in his motion to reopen were that he had recently learned of two neighbors back in Fujian province in Changle city, who had been sterilized after having more than one baby. And secondly, that the Changle city planning, family planning committee, had responded to an inquiry by his parents as to whether or not he would be subject to the family planning laws, and they wrote a letter stating, yes, he will be, and he must report for sterilization. Now, the board's reliance on matter of JWS is important because there, the board found that in considering how these policies are enforced, that's the most important thing. Therefore, what happened to the neighbors in China is not really probative of what would happen to a returning Chinese citizen, and say held in JWS. And secondly, that even though the village committee, the local committee pronounced, you must report for sterilization, what's key is, is there any evidence as to how they're enforcing that requirement? Yes, many of the reports state you exceed the limitations, you must be sterilized. How the mother asked for that, give me a letter that says you're going to report sister reports for sterilization and quick send it to the United States. Well, there's no indication the record is to how the letter was requested, only that it was presented on the motion. The report said 60% of all documents in the food jam province are frauds. That was in a country of 60%. I think there is a section on fraud in the country report, however it's... Specifically in food jam province. It's not an issue here, at least the board didn't find that, but with respect to how the policy is enforced, is it enforced through means of physical coercion, or by contrast, as the board pointed out, in accordance with the well documented system of financial or economic penalties and incentives. That is what the background evidence in this case shows. That is also the context for an aspect of the05 country report relied upon by my brother, Council, which is it references how women find little practical alternative to sterilization. What the board has pointed out in JWS, and this has also been highlighted by the second circuit in its child decision, is that the context for that statement is in a paragraph in the05 report that focuses entirely on economic incentives and disincentives. Therefore, there is no indication that even in bad context, the sterilization is a conclusion of any kind of forced sterilization or physical coercion. Let me ask you a question that I haven't seen in these Chinese family issues, but we get in other asylum cases. One of the issues is whether you can find another place in the country where you won't be persecuted, it's in terms of persecution
. And secondly, that even though the village committee, the local committee pronounced, you must report for sterilization, what's key is, is there any evidence as to how they're enforcing that requirement? Yes, many of the reports state you exceed the limitations, you must be sterilized. How the mother asked for that, give me a letter that says you're going to report sister reports for sterilization and quick send it to the United States. Well, there's no indication the record is to how the letter was requested, only that it was presented on the motion. The report said 60% of all documents in the food jam province are frauds. That was in a country of 60%. I think there is a section on fraud in the country report, however it's... Specifically in food jam province. It's not an issue here, at least the board didn't find that, but with respect to how the policy is enforced, is it enforced through means of physical coercion, or by contrast, as the board pointed out, in accordance with the well documented system of financial or economic penalties and incentives. That is what the background evidence in this case shows. That is also the context for an aspect of the05 country report relied upon by my brother, Council, which is it references how women find little practical alternative to sterilization. What the board has pointed out in JWS, and this has also been highlighted by the second circuit in its child decision, is that the context for that statement is in a paragraph in the05 report that focuses entirely on economic incentives and disincentives. Therefore, there is no indication that even in bad context, the sterilization is a conclusion of any kind of forced sterilization or physical coercion. Let me ask you a question that I haven't seen in these Chinese family issues, but we get in other asylum cases. One of the issues is whether you can find another place in the country where you won't be persecuted, it's in terms of persecution. Has anybody argued at any time that, even though, assuming Fuji M province has a stricter application of the one child per family document, other provinces may not, and therefore there's been no evidence that they can't relocate to, and China is a big country to another province. Has that ever come up? That comes up in many cases, Your Honor, in which... I haven't seen it in the Chinese family. Perhaps the reason is, if I would just venture to say that the burden is on the movement in the reopening context, and the case is judged on that evidence as to whether or not established change circumstances or a primafaceous case. So it's evaluated on the merits of the evidence presented, whereas in asylum cases that are fully litigated before an immigration judge, where, for example, past persecution may give rise to a presumption of a well found if you're a future persecution, the regulations provide that the burden will then be transferred, I believe, to show... The government will present evidence of reasonable relocation, and then a corresponding rebuttal burden to show that such relocation is not reasonable. Has never seen oil argue in response to petitions for a review in the family plan in case of just a curgium in the family plan in cases that they can go to other provinces. Any such thing? BIA specifically found there was no change in conditions. I think clearly found as well there was no new evidence of change conditions or the conditions that pre-existent, but there's new evidence. What's our jurisdiction to review? And that's a finding of facts. I think. Let's say
. Has anybody argued at any time that, even though, assuming Fuji M province has a stricter application of the one child per family document, other provinces may not, and therefore there's been no evidence that they can't relocate to, and China is a big country to another province. Has that ever come up? That comes up in many cases, Your Honor, in which... I haven't seen it in the Chinese family. Perhaps the reason is, if I would just venture to say that the burden is on the movement in the reopening context, and the case is judged on that evidence as to whether or not established change circumstances or a primafaceous case. So it's evaluated on the merits of the evidence presented, whereas in asylum cases that are fully litigated before an immigration judge, where, for example, past persecution may give rise to a presumption of a well found if you're a future persecution, the regulations provide that the burden will then be transferred, I believe, to show... The government will present evidence of reasonable relocation, and then a corresponding rebuttal burden to show that such relocation is not reasonable. Has never seen oil argue in response to petitions for a review in the family plan in case of just a curgium in the family plan in cases that they can go to other provinces. Any such thing? BIA specifically found there was no change in conditions. I think clearly found as well there was no new evidence of change conditions or the conditions that pre-existent, but there's new evidence. What's our jurisdiction to review? And that's a finding of facts. I think. Let's say... Well, with regard to findings of facts, the context here is a motion to reopen, and the court is reviewing for abuse of discretion. However, with respect to subsidiary... Is the fiction stripping involved here? I mean, do we have... Any issue that can come up? Abuse of discretion, in other words, we're not limited to... On motions to reopen, the court reviews for abuse of discretion. As to subsidiary questions of fact, the substantial evidence tests would apply. Putting the burden on the petitioner to show that the evidence not only shows, but compels a.
... Well, with regard to findings of facts, the context here is a motion to reopen, and the court is reviewing for abuse of discretion. However, with respect to subsidiary... Is the fiction stripping involved here? I mean, do we have... Any issue that can come up? Abuse of discretion, in other words, we're not limited to... On motions to reopen, the court reviews for abuse of discretion. As to subsidiary questions of fact, the substantial evidence tests would apply. Putting the burden on the petitioner to show that the evidence not only shows, but compels a... And the second circuit held that there was not inadequate evidence. The second circuit held... That's right. In in shall? Is the court referring to shall? The recent shall decision? I don't know the number. Which one? The one that I provide to the court in a 28J letter. The October case. Yes. Yes. Well, there the court considered three cases. Some which came up on direct review from the denial of asylum, one which was the denial of reopening. That's the one we're concerned with. Right. So the posture was in the cases there were slightly different
.. And the second circuit held that there was not inadequate evidence. The second circuit held... That's right. In in shall? Is the court referring to shall? The recent shall decision? I don't know the number. Which one? The one that I provide to the court in a 28J letter. The October case. Yes. Yes. Well, there the court considered three cases. Some which came up on direct review from the denial of asylum, one which was the denial of reopening. That's the one we're concerned with. Right. So the posture was in the cases there were slightly different. How about those cases you're adversary cited here that we don't have? I have not reviewed those cases. I'm not sure what he's referring to, but his characterization of it was that the seven circuit had decided that the economic penalties were such that it may rise to the level of persecution. That was his counsel's characterization of it. And in that respect, I think Judge Slavitor's recollection is excellent because the third circuit has a decision, Lee versus Attorney General, 400 F-3157, in which this court determined that the standard for finding persecution on the basis of economic deprivation is severe economic disadvantage. And in terms of the evidence, in this case, the board through its reference and reliance on JWS did invert to the 04 and 05 country-port information. You read my song, but I'm sorry. Why shouldn't we send it back to the BIA and let it worry about all that? You shouldn't, you should not send it back because, and if I could just address that as a last point, counsel stating, it was only after 2004 that any of this evidence became available. Well, that's not true. The record refutes that in so far as there's a country report dating back to 1998 concerning family planning and coercive population control in China. But how you can't, isn't the issue really how you can't children born in this country because for a long time, we were told, and I've had these cases for years, we were told that they don't count children born in this country toward the maximum that you can have. And what we're now told is that they now count. Well, am I wrong? Isn't that right? Just over there. In this case, the petitioner has presented a letter from the Changlei city family planning counsel that says we're going to count them. Okay, so he's presented at least on his motion to reopen that evidence. That shift the analysis. Why shouldn't that be because it shifted the analysis to the question of how is it likely to be enforced assuming they do count? How will it be enforced? And that's what the BIA pointed out here, which is that there's nothing to show that it will be enforced through forcible or physical coercion
. How about those cases you're adversary cited here that we don't have? I have not reviewed those cases. I'm not sure what he's referring to, but his characterization of it was that the seven circuit had decided that the economic penalties were such that it may rise to the level of persecution. That was his counsel's characterization of it. And in that respect, I think Judge Slavitor's recollection is excellent because the third circuit has a decision, Lee versus Attorney General, 400 F-3157, in which this court determined that the standard for finding persecution on the basis of economic deprivation is severe economic disadvantage. And in terms of the evidence, in this case, the board through its reference and reliance on JWS did invert to the 04 and 05 country-port information. You read my song, but I'm sorry. Why shouldn't we send it back to the BIA and let it worry about all that? You shouldn't, you should not send it back because, and if I could just address that as a last point, counsel stating, it was only after 2004 that any of this evidence became available. Well, that's not true. The record refutes that in so far as there's a country report dating back to 1998 concerning family planning and coercive population control in China. But how you can't, isn't the issue really how you can't children born in this country because for a long time, we were told, and I've had these cases for years, we were told that they don't count children born in this country toward the maximum that you can have. And what we're now told is that they now count. Well, am I wrong? Isn't that right? Just over there. In this case, the petitioner has presented a letter from the Changlei city family planning counsel that says we're going to count them. Okay, so he's presented at least on his motion to reopen that evidence. That shift the analysis. Why shouldn't that be because it shifted the analysis to the question of how is it likely to be enforced assuming they do count? How will it be enforced? And that's what the BIA pointed out here, which is that there's nothing to show that it will be enforced through forcible or physical coercion. And if not, it doesn't rise to the level of persecution. It's not likely to make out a primafacial case. And the board was reasonable and properly exercised its discretion in denying the motion. Thank you very much. Do you have any questions? No, everything is clear. Thank you, Your Honor. Okay. Council, he gets a chance to have a vote. Well, help you clarify for me, Judge Buehmur. Yes, sir. The 2004 and 2005 country reports are actually attached to the appendix. Yes, sir. Do either one of them refer to children born in the United States who come back to Changlei and how they're dealt with? No, the... My only question is, do they mention that point at all? No
. And if not, it doesn't rise to the level of persecution. It's not likely to make out a primafacial case. And the board was reasonable and properly exercised its discretion in denying the motion. Thank you very much. Do you have any questions? No, everything is clear. Thank you, Your Honor. Okay. Council, he gets a chance to have a vote. Well, help you clarify for me, Judge Buehmur. Yes, sir. The 2004 and 2005 country reports are actually attached to the appendix. Yes, sir. Do either one of them refer to children born in the United States who come back to Changlei and how they're dealt with? No, the... My only question is, do they mention that point at all? No. Does the 2006 report, which I don't have, attach to either of these appendix? Does that specifically mention that issue? No, the 2007 profile is the first document that specifically mentioned that issue. And in that document, what it says and what the BIA extracted from that case. 2007 profile. Not the country report, the State Department profile on asylum claims. Profile. That was published in June 7, 2007. What that profile states is that children born outside of China are not counted towards children born inside of China. And that's what was quoted by the BIA. But what they didn't do is read the last sentence of that quote, which says, unless they're registered into the Household Registration. So children are not counted towards the birth control policies unless they're registered in the Household Registration. If they're not registered in the Household Registration, they're not allowed to have an ID. They're not allowed to go to school. They're not... The only reference
. Does the 2006 report, which I don't have, attach to either of these appendix? Does that specifically mention that issue? No, the 2007 profile is the first document that specifically mentioned that issue. And in that document, what it says and what the BIA extracted from that case. 2007 profile. Not the country report, the State Department profile on asylum claims. Profile. That was published in June 7, 2007. What that profile states is that children born outside of China are not counted towards children born inside of China. And that's what was quoted by the BIA. But what they didn't do is read the last sentence of that quote, which says, unless they're registered into the Household Registration. So children are not counted towards the birth control policies unless they're registered in the Household Registration. If they're not registered in the Household Registration, they're not allowed to have an ID. They're not allowed to go to school. They're not... The only reference. Yes, sir. And the Pager Department documents that refer to which are slovered as children born in the United States, how they're treated in China. That's correct. And if we look at the October 10th decision by the Second Circuit on page 46, you'll read, Petitioner established that Chinese authorities would view the birth of his two sons in the United States as a violation of the population control policies. So they have recognized this. Now, if I can quickly address a couple issues. Severe economic deprivation. One to ten times an annual salary. I assert that that is severe economic deprivation. JWS, what the government hasn't pointed out is that the Second Circuit said that on this particular case, on these particular facts, we have not found that enforcement is done through coercion. But it must be decided on a case-by-case basis, and we cannot exclude, category exclude or categorically include all applicants. Now, regarding authentication of documents, my last point. Yes, the country reports do say that documents from Fujian are found to be fraudulent and 6% at a time, 60% of the cases, however. What it doesn't say is that the village committee under Article 5 of the Fujian province does have the authority to enforce the family planning. And furthermore, the documents that were used in the grow case were found to be authentic, and that came from the village committee officials. So we cannot lump all these documents into the fraudulent category
. Yes, sir. And the Pager Department documents that refer to which are slovered as children born in the United States, how they're treated in China. That's correct. And if we look at the October 10th decision by the Second Circuit on page 46, you'll read, Petitioner established that Chinese authorities would view the birth of his two sons in the United States as a violation of the population control policies. So they have recognized this. Now, if I can quickly address a couple issues. Severe economic deprivation. One to ten times an annual salary. I assert that that is severe economic deprivation. JWS, what the government hasn't pointed out is that the Second Circuit said that on this particular case, on these particular facts, we have not found that enforcement is done through coercion. But it must be decided on a case-by-case basis, and we cannot exclude, category exclude or categorically include all applicants. Now, regarding authentication of documents, my last point. Yes, the country reports do say that documents from Fujian are found to be fraudulent and 6% at a time, 60% of the cases, however. What it doesn't say is that the village committee under Article 5 of the Fujian province does have the authority to enforce the family planning. And furthermore, the documents that were used in the grow case were found to be authentic, and that came from the village committee officials. So we cannot lump all these documents into the fraudulent category. The government is in a very serious situation. The government is in a very serious situation. The government is in a very serious situation. The government is in a very serious situation. The government is in a very serious situation. The government is in a very serious situation. The government is in a very serious situation. But the law says, so with that, I would just ask, I would urge this Court to send the case back to the B.I. Let them do their fact finding. Let them decide whether or not there are worse in the country conditions. It's been a great pleasure to be in front of this Court. Thank you very much. Thank you. Thank you, Will. We'll take the matter to under advisement