Zheng v. Mukasey, 509 F.3d 869 (8th Cir. 2007). · Go Syfert
Zheng v. Mukasey, 509 F.3d 869 (8th Cir. 2007). Cases Citing This Book View Copy Cite
40 citation events (40 in the last 25 years) across 8 distinct courts.
Strongest positive: Jin v. Mukasey (ca2, 2008-09-12)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Jin v. Mukasey (4×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
2d Cir. · 2008 · signal: see · quote attribution · 1 verbatim quote · confidence high
hanging the 20 regulations . . . does not reflect a clear intent to weaken the 21 requirements of a motion to reopen when an alien under a final 22 order of removal seeks to file a . . . successive asylum 23 application.
examined Cited as authority (verbatim quote) Jin v. Mukasey (4×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
2d Cir. · 2008 · signal: see · quote attribution · 1 verbatim quote · confidence high
hanging the 20 regulations . . . does not reflect a clear intent to weaken the 21 requirements of a motion to reopen when an alien under a final 22 order of removal seeks to file a . . . successive asylum 23 application.
examined Cited as authority (verbatim quote) Yuen Jin v. Mukasey (8×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
2d Cir. · 2008 · signal: see · quote attribution · 2 verbatim quotes · confidence high
hanging the regulations ... does not reflect a clear intent to weaken the requirements of a motion to reopen when an alien under a final order of removal seeks to file a ... successive asylum application.
cited Cited as authority (rule) Xi Dan Tang v. Eric H. Holder, Jr.
8th Cir. · 2009 · confidence medium
See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); Li Yun Lin v. Mukasey, 526 F.3d 1164, 1165-66 (8th Cir.2008); Zheng v. Mukasey, 509 F.3d 869, 871-72 (8th Cir.2007).
discussed Cited as authority (rule) Phik Ha Lie v. Attorney General of the United States
3rd Cir. · 2009 · confidence medium
See also Chen v. Mukasey, 524 F.3d 1028, 1032-33 (9th Cir.2008) (deferring to Board’s interpretation in Matter of C-W-L- and noting that “[fits interpretation harmonizes the competing exceptions”); Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir.2009) (same); Zhang v. Mukasey, 543 F.3d 851, 858-59 (6th Cir.2008) (same); Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.2007) (regulatory history of 8 C.F.R. § 1208.4 does not support assertion of “intent to weaken the requirements of a motion to reopen when an alien under a final order of removal seeks to file an untimely or successive asylu…
discussed Cited as authority (rule) Phik Ha Lie v. Attorney General of the United States
3rd Cir. · 2009 · confidence medium
See also Chen v. Mukasey, 524 F.3d 1028, 1032-33 (9th Cir.2008) (deferring to Board’s interpretation in Matter of C-W-L- and noting that “[fits interpretation harmonizes the competing exceptions”); Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir.2009) (same); Zhang v. Mukasey, 543 F.3d 851, 858-59 (6th Cir.2008) (same); Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.2007) (regulatory history of 8 C.F.R. § 1208.4 does not support assertion of “intent to weaken the requirements of a motion to reopen when an alien under a final order of removal seeks to file an untimely or successive asylu…
discussed Cited as authority (rule) Yi-Qin Chen v. U.S. Attorney General
11th Cir. · 2009 · confidence medium
See Liu v. Att’y Gen. of the U.S., 555 F.3d 145, 152 (3d Cir.2009); Wei v. Mukasey, 545 F.3d 1248, 1256 (10th Cir.2008); Zhang v. Mukasey, 543 F.3d 851, 856 (6th Cir.2008); Jin v. Mukasey, 538 F.3d 143, 152 (2d Cir.2008); Chen v. Mukasey, 524 F.3d 1028, 1033-34 (9th Cir.2008); Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.2007); Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.2007).
discussed Cited as authority (rule) Xu v. Atty Gen USA
3rd Cir. · 2008 · confidence medium
See Jin v. 5 Mukasey, 538 F.3d 143, 152-155 (2d Cir. 2008); Chen v. Mukasey, 524 F.3d 1028, 1030 (9th Cir. 2008); Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir. 2007); Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir. 2007).
discussed Cited as authority (rule) Zhang Fen Xu v. Attorney General of United States
3rd Cir. · 2008 · confidence medium
See Jin v. Mukasey, 538 F.3d 143, 152-155 (2d Cir.2008); Chen v. Mukasey, 524 F.3d 1028, 1030 (9th Cir.2008); Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.2007); Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir. 2007).
discussed Cited as authority (rule) Xiu Mei Wei v. Mukasey
10th Cir. · 2008 · confidence medium
See Zhang v. Mukasey, 543 F.3d 851 (6th Cir.2008) (deferring to BIA’s reasonable interpretation of §§ 1158 and 1229a that alien under final order of removal could apply for asylum only in conjunction with permissible motion to reopen); Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008) (deferring to BIA’s reasonable interpretation of §§ 1158 and 1229a and the agency’s own regulations that alien under final order of removal could apply for asylum only in conjunction with permissible motion to reopen); Chen v. Mukasey, 524 F.3d 1028, 1033 (9th Cir. 2008) (same); Zheng v. Mukasey, 509 F.3d…
discussed Cited as authority (rule) Zhang v. Mukasey
6th Cir. · 2008 · confidence medium
As the Eighth Circuit argues, putting this change in regulatory language in its proper context certainly supports an inference that new applications under § 1158(a)(2)(D) are permissible during the 90-day period (an interpretation the BIA agrees with) but does “not reflect a clear intent to weaken the requirements of a motion to reopen when an alien under a final order of removal seeks to file an untimely or successive asylum application.” Zheng, 509 F.3d at 872 (emphasis in original).
discussed Cited as authority (rule) Yan Xia Zhang v. Mukasey
6th Cir. · 2008 · confidence medium
As the Eighth Circuit argues, putting this change in regulatory language in its proper context certainly supports an inference that new applications under § 1158(a)(2)(D) are permissible during the 90-day period (an interpretation the BIA agrees with) but does “not reflect a clear intent to weaken the requirements of a motion to reopen when an alien under a final order of removal seeks to file an untimely or successive asylum application.” Zheng, 509 F.3d at 872 (emphasis in original).
cited Cited as authority (rule) Qing Li Chen v. Mukasey
9th Cir. · 2008 · confidence medium
See Cheng Chen, 498 F.3d at 760-61 ; Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.2007).
cited Cited as authority (rule) Chen v. Mukasey
9th Cir. · 2008 · confidence medium
See Cheng Chen, 498 F.3d at 760-61 ; Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir. 2007).
discussed Cited as authority (rule) Zhong Zheng v. Peter D. Keisler
8th Cir. · 2008 · confidence medium
We subsequently upheld this interpretation of the statutes and regulations in Wen Ying Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir. 2007).2 Turning to Zheng’s showing of changed conditions or circumstances in China since his October 2002 asylum hearing, the BIA concluded: [T]he evidence reflects conditions substantially similar to those that existed at the time of his hearing, with the government officially prohibiting the use of force to compel persons to submit to abortion or sterilization, despite some 2 As Judge Posner commented in Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir. 2007), �…
discussed Cited as authority (rule) Zhong Qin Zheng v. Mukasey
8th Cir. · 2008 · confidence medium
We subsequently upheld this interpretation of the statutes and regulations in Wen Ying Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.2007). 2 Turning to Zheng’s showing of changed conditions or circumstances in China since his October 2002 asylum hearing, the BIA concluded: [T]he evidence reflects conditions substantially similar to those that existed at the time of his hearing, with the government officially prohibiting the use of force to compel persons to submit to abortion or sterilization, despite some reports of coercion by local authorities, and generally attempting to enforce complian…
discussed Cited "see" Averianova v. Holder
8th Cir. · 2010 · signal: see · confidence high
See Wen Ying Zheng v. Mukasey, 509 F.3d 869, 871 (8th Cir.2007) (“[I]t would be ironic, indeed, if petitioners ... who have remained in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities.” (quoting Wei Guang Wang, 437 F.3d at 274 )).
discussed Cited "see" Oksana Averianova v. Eric H. Holder, Jr.
8th Cir. · 2010 · signal: see · confidence high
See Wen Ying Zheng v. Mukasey, 509 F.3d 869, 871 (8th Cir. 2007) (“[I]t would be ironic, indeed, if petitioners . . . who have remained in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities.” (quoting Wei Guang Wang, 437 F.3d at 274 )).
cited Cited "see" Tian v. Holder
8th Cir. · 2009 · signal: see · confidence high
See Zheng v. Mukasey, 509 F.3d 869, 871 (8th Cir.2007); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 , 119 S.Ct. 1439 , 143 L.Ed.2d 590 (1999).
cited Cited "see" Tim Tian v. Eric H. Holder, Jr.
8th Cir. · 2009 · signal: see · confidence high
See Zheng v. Mukasey, 509 F.3d 869, 871 (8th Cir. 2007); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).
cited Cited "see" Rui Xia Lin v. Mukasey
4th Cir. · 2008 · signal: see · confidence high
See Zheng v. Mukasey, 509 F.3d 869 (8th Cir.2007); Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.2007).
discussed Cited "see" Mai Yang v. Michael Mukasey
8th Cir. · 2008 · signal: see · confidence high
See Zheng v. Mukasey, 509 F.3d 869, 871-72 (8th Cir.2007) (asylum application filed after entry of final order of removal must be filed in conjunction with motion to reopen, and alien must meet more restrictive changed-country-conditions requirement; distinction between changed country conditions and changed personal conditions is sensible after final order of removal has been entered, since alien can manipulate latter but not former).
cited Cited "see" Li Yun Lin v. Mukasey
8th Cir. · 2008 · signal: see · confidence high
See Wen Ying Zheng v. Mukasey, 509 F.3d 869, 871 (8th Cir.2007).
cited Cited "see" Li Lin v. Michael Mukasey
8th Cir. · 2008 · signal: see · confidence high
See Wen Ying Zheng v. Mukasey, 509 F.3d 869, 871 (8th Cir. 2007).
Retrieving the full opinion text from the archive…
Wen Ying ZHENG, Petitioner,
v.
Michael B. MUKASEY, Attorney General of the United States, Respondent
06-3048.
Court of Appeals for the Eighth Circuit.
Dec 4, 2007.
509 F.3d 869
Theodore N. Cox, New York, NY, for appellant., David E. Dauenheimer, Dept, of Justice, Washington, D.C., for appellee.
Loken, Arnold, Colloton.
Cited by 26 opinions  |  Published
LOKEN, Chief Judge.

Wen Ying Zheng, a native and citizen of the People’s Republic of China, entered the United States in 1994. Facing deportation in September 1997, Zheng applied for asylum, withholding of deportation, and relief under the Convention Against Torture, claiming a fear of persecution if she returned to China on account of her past political activities. After the birth of a child in 1998, Zheng claimed that she also feared persecution and forced sterilization under China’s One Child policy. See 8 U.S.C. § 1101(a)(42). In June 2003, an immigration judge denied Zheng’s claims for relief, granted her voluntary departure, and ordered her removed. Zheng appealed, the BIA summarily affirmed, and Zheng dismissed a petition for review to this court in November 2004.

In September 2005, Zheng filed a motion with the BIA for leave to file a successive asylum application. Relying on 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(4), she claimed that the application was not barred because the birth of her fourth child created an increased risk of persecution under China’s One Child policy. The BIA denied the motion, holding that an alien who is under a final order of removal must successfully move to reopen the case in order to file a successive asylum application. The BIA then treated Zheng’s motion as a motion to reopen and denied it as untimely because Zheng submitted no evidence of changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(i-ii); 8 C.F.R. § 1003.2(c)(3)(ii). Zheng petitions for judicial review, arguing that the BIA committed an error of law in ruling that her successive asylum application must meet the more stringent requirements of a motion to reopen. After the case was submitted, two of our sister circuits issued decisions upholding the BIA’s construction of these statutes and regulations in factually similar cases. See Chen v. Gonzales, 498 F.3d 758 (7th Cir.2007); Huang v. Attorney General, No. 06-3013, slip op., 249 Fed.Appx. 293, 2007 WL 2815598 (3d Cir. Sept.28, 2007); accord Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006). We agree with these decisions and therefore deny the petition for review.

In the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. 104-208, div. C, 110 Stat. 3009-546 (1996)[*871] (“IIRIRA”), Congress enacted a number of provisions intended to reduce delays and curb perceived abuses in removal proceedings. Section 304 of IIRIRA provided that motions to reopen must be filed within ninety days of the entry of a final order of removal, subject to an exception that is critical to this appeal — there is no time limit if the motion to reopen claims a right to asylum based on material new evidence of “changed country conditions arising in the country of nationality or the country to which removal has been ordered.” 8 U.S.C. § 1229a(e)(7)(C)(i-ii); see 8 C.F.R. § 1003.2(c)(3)(ii); Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir.2005). Section 604 of IIRIRA amended the asylum statute, barring successive applications and those filed more than one year after entry unless the applicant demonstrates “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(B)-(D).

The Attorney General’s regulations implementing 8 U.S.C. § 1158(a)(2)(D) construe the reference to “changed circumstances” as including “activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk.” 8 C.F.R. § 1208.4(a) (4)(i) (B). Zheng’s successive application is based upon this type of personal circumstance- — -the birth of her fourth child in the United States. Because she presented no new evidence of a material change of conditions in China, and because her motion was untimely under 8 U.S.C. § 1229a(c)(7)(C)(i), [1] we must deny her petition for review if the BIA correctly ruled that an alien subject to a final order of removal must successfully move to reopen the proceedings in order to file a successive asylum application. We review the BIA’s legal determinations de novo, “according substantial deference to the [BIA’s] interpretation of the statutes and regulations it administers.” Negele v. Ashcroft, 368 F.3d 981, 982 (8th Cir.), cert. denied, 543 U.S. 1035, 125 S.Ct. 815, 160 L.Ed.2d 599 (2004).

Congress has not defined how 8 U.S.C. §§ 1158(a)(2)(D) and 1229a(c)(7)(C)(ii) interact. As removal proceedings can be protracted, an alien may confront changed circumstances warranting an untimely or successive asylum application before the proceedings have culminated in a final order of removal. Thus, the BIA’s ruling under review — that a successive application, if filed after entry of a final order of removal, must also meet the more restrictive changed conditions requirement of § 1229a(c)(7)(C)(ii) — does no violence to the plain language of either statute. [2] Moreover, practical realities support this interpretation. As the Second Circuit observed, “it would be ironic, indeed, if petitioners ... who have remained in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities.” Wang, 437 F.3d at 274, quoted in Huang, 249 Fed.Appx. at 298, 2007 WL 2815598 at *4. The Seventh Circuit made the same point in Chen, commenting that the distinction between changed country conditions and changed personal conditions is “sensible” after a final order of removal has been entered, “since the alien can ma[*872] nipulate the latter but not the former.” 498 F.3d at 760.

In arguing to the contrary, Zheng relies heavily on the legislative history of the Attorney General’s implementing regulations, now 8 C.F.R. § 1208.4. The proposed regulation governing successive asylum applications initially provided that “[cjhanged circumstances arising after the denial of the application but before the alien’s departure or removal from the United States shall only be considered as part of a motion to reopen.” 62 Fed.Reg. 444, 463 (proposed Jan. 3,1997). The final regulation deleted this language because, the Attorney General explained, “of inconsistency between the formulation of changed circumstances” in §§ 1158(a)(2)(D) and 1229a(c)(7)(C)(ii). 62 Fed.Reg.10312, 10316, 10321 (Mar. 6, 1997). Zheng argues that this “unambiguously establishes that [she] is not required to reopen her prior claim in order to pursue the new [asylum] claim” (emphasis in original). Like the Seventh and Third Circuits, we disagree. See Chen, 498 F.3d at 760; Huang, 249 Fed.Appx. at 296-98, 2007 WL 2815598 at *3-4. As we have explained, an untimely or successive asylum application may be filed before entry of a final order of removal. Requiring the applicant to satisfy the more stringent changed conditions requirements of a motion to reopen at that time would be inconsistent with 8 U.S.C. § 1158(a)(2)(D). But changing the regulations because of this possible inconsistency does not reflect a clear intent to weaken the requirements of a motion to reopen when an alien under a final order of removal seeks to file an untimely or successive asylum application. The final regulation confirms this interpretation by providing that, when an asylum application is filed after completion of removal proceedings or when the BIA has obtained jurisdiction over the proceedings, the application must be filed “in conjunction with a motion to reopen.” 8 C.F.R. §§ 1208.4(b)(3)(ii) and (4).

Zheng further argues that the Second Circuit “acknowledged” the procedure she seeks to invoke in Guan v. BIA, 345 F.3d 47, 49 (2d Cir.2003). See also Haddad v. Gonzales, 437 F.3d 515, 518 (6th Cir.2006). However, in denying relief to aliens who filed untimely motions to reopen, those decisions simply suggested in dicta that the relief Zheng seeks from the BIA in this case might be available under 8 U.S.C. § 1158(a)(2)(D). The Seventh Circuit concluded that this dicta was speculative and declined to follow it. Chen, 498 F.3d at 760-61. We agree.

Like our sister circuits that have considered the question, we conclude that the BIA reasonably harmonized the relevant statutes and regulations in concluding that an alien under a final order of removal must successfully reopen under 8 U.S.C. § 1229a(c)(7)(C)(ii) in order to pursue an untimely or successive asylum application under 8 U.S.C. § 1158(a)(2)(D). Accordingly, we deny the petition for review.

1

. A motion to reopen must be filed within 90 days of "entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see 8 C.F.R. § 1003.2(c)(2). The BIA affirmed Zheng’s removal order in April 2004, more than a year before she filed the motion for leave to file a successive asylum application.

2

. Indeed, the cross reference to 8 U.S.C. § 1158 in § 1229a(c)(7)(C)(ii), though not conclusive, is some support for this interpretation.