                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                          Submitted February 14, 2007*
                           Decided February 14, 2007

                                       Before

                   Hon. MICHAEL S. KANNE, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge

No. 06-2648

YAN ZHEN YANG,                                  Petition for Review of a Decision of
            Petitioner-Appellant,               the Board of Immigration Appeals

      v.                                        No. A77-340-208

ALBERTO R. GONZALES, Attorney
General of the United States,
                Respondent-Appellee.


                                   ORDER

      Yan Zhen Yang, a native and citizen of China, entered the United States in
November 2000 without valid travel documents. The following month, she was
served with a Notice to Appear charging her with removability under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Yang sought and was granted numerous continuances so she


      *
       We granted the appellant’s motion to waive oral argument. Thus, the appeal
is submitted on the briefs and the record. See Fed. R. App. P. 34(f).
No. 06-2648                                                                   Page 2

could hire an attorney. In February 2001, she was found removable at a hearing
before an immigration judge in California, and she applied for asylum, withholding
of removal, and protection under the Convention Against Torture. Yang premised
her claims on a fear of persecution based on her Christian religion and her
opposition to China’s family planning policies. At the time, she was unmarried and
had no children, but she stated that she feared she would be subject to forced
abortion and sterilization if she married and had children in the future. Before a
hearing on the merits of her applications could be held, Yang moved to New York,
and later to Indiana. She also met and married another Chinese citizen. Her
asylum hearing was postponed yet again due to her pregnancy; in February 2004,
she gave birth to the couple’s first child, a son.

        Yang’s hearing was finally held in July 2004. She testified primarily about
her fear of persecution on account of her Christian beliefs, although she added that
her mother was sterilized after having five children and she feared the same thing
could happen to her. The IJ denied all forms of relief, and Yang appealed. The
Board of Immigration Appeals summarily affirmed the IJ’s decision. Yang did not
file a petition for review, but more than seven months later, in March 2006, she
moved to reopen. Although the motion was untimely, she argued that evidence of
changed conditions in China nevertheless warranted reopening, see 8 C.F.R.
§ 1003.2(c)(3)(ii). Yang asserted that conditions in China had changed due to the
recent enforcement of the People’s Family Planning Law (PFPL) in her home
province of Fujian. According to Yang, the law increases the punishment for
violating the one-child rule from economic sanctions to “more severe criminal
charges.” Yang, who was pregnant with her second child at the time she filed her
motion, argued that she had a well-founded fear of “future birth control
persecution.” In support of her motion, she submitted numerous documents
including the text of the PFPL and a letter from her mother in China describing the
increased enforcement of the law, including the forced sterilizations of two
neighbors. Yang also relied on a transcript of the 2002 Congressional testimony of
the late John Shields Aird, formerly a demographer from the United States Census
Bureau, and a generalized affidavit he prepared on behalf of Chinese asylum
seekers in 2004. Aird’s affidavit focuses on China’s policy toward parents of
U.S.-born children and suggests that foreign-born children are counted under
family planning rules, subjecting the parents to harsh penalties.

       The BIA denied Yang’s motion. It noted that Yang had supplied “some
evidence” of changed country conditions but nevertheless failed to demonstrate
prima facie eligibility for asylum to warrant reopening her application. Relying on
its recent decision in In re C-C, 23 I. & N. Dec. 899 (BIA 2006), the BIA stated that
there was no persuasive evidence that Chinese citizens who have children abroad
and return to China are forced to undergo sterilization upon their return. In
particular, the Board found the State Department reports more persuasive than Dr.
Aird’s testimony on the subject of forced sterilization because official government
No. 06-2648                                                                    Page 3

policy prohibits coercion and Aird supplied “no specific evidence that returnees have
been subjected to forced surgeries.” Acknowledging a likelihood that Yang would
face economic sanctions and a possibility that she would be “pressured” to undergo
sterilization, the BIA concluded that her evidence did not demonstrate a “realistic
chance” that she would be physically forced to submit to sterilization. The BIA
concluded, therefore, that even if the motion to reopen established changed
circumstances, Yang was not prima facie eligible for asylum. Yang seeks review of
that decision.

        In general an alien may file one motion to reopen within 90 days of the BIA’s
decision. See 8 C.F.R. § 1003.2(c)(2). However, the normal restrictions do not apply
if the motion to reopen relies on “changed circumstances arising in the country of
nationality.” See id. § 1003.2(c)(3)(ii). To support reopening on this ground, the
alien must provide evidence that is “material and was not available and could not
have been discovered or presented at the previous hearing.” Id. We review the
BIA’s decision to deny the motion to reopen under a deferential abuse-of-discretion
standard. See Pelinkovic v. Ashcroft, 366 F.3d 532, 536 (7th Cir. 2004).

       Yang concedes that her motion to reopen was untimely but asserts that she
can establish a material change in circumstances in China with the evidence she
submitted about the PFPL, including Dr. Aird’s expert testimony. She further
contends that the BIA mischaracterized her argument as a contention that the
births of her children constituted changed circumstances. Finally, she argues that
she is prima facie eligible for asylum and withholding because she demonstrated a
well-founded fear of forcible abortion or sterilization if she is returned to China.

    We conclude that the BIA did not abuse its discretion in denying Yang’s motion
to reopen. First, we are not persuaded that the enactment of the PFPL in 2002
demonstrates that conditions in China have materially changed since Yang was last
before the BIA. The law was passed two years before Yang’s original asylum
hearing, and she did not mention it then. See Krougliak v. INS, 289 F.3d 457, 460
(7th Cir. 2002) (upholding denial of motion to reopen where evidence “was in
existence at the time of [petitioner’s] asylum hearing”). She supplies no evidence to
support her assertion that local officials began enforcing the law only in the months
before she filed her motion in March 2006. Moreover, the PFPL says nothing about
sterilization as a method of enforcing population control.

        The Aird affidavit likewise does not support the argument that population
control measures are more oppressive now. We have held that the affidavit, which
relies largely on sources from the 1990s, is not evidence of changed circumstances.
See [Bao Hua] Lin v. Gonzales, 435 F.3d 708, 711 (7th Cir. 2006). And, in a case
with facts quite similar to those presented here, the Second Circuit noted that the
Aird affidavit had limited relevance because it “was not prepared specifically for
No. 06-2648                                                                      Page 4

petitioner and is not particularized as to his circumstances.” See Wang v. BIA, 437
F.3d 270, 274 (2d Cir. 2006).

       The birth of Yang’s children in the United States also does not support the
existence of changed circumstances. See Zhao v. Gonzales, 440 F.3d 405, 407 (7th
Cir. 2006). We have held that such a change in “personal circumstances” does not
trigger the statutory exception for additional, untimely motions to reopen. Id. at
407. Yang insists that the births of her children are not a basis for her motion, but
this objection rings hollow in light of her contention that, now that she has two
children, she “will almost certainly be deemed to have violated the PFPL” and
punished for it if returned to China. Asylum is available to those who have a well-
founded fear of persecution based on a violation of, or opposition to, China’s family
planning policies, but “[i]t is quite a different situation . . . where a petitioner is
seeking to reopen [her] asylum case due to circumstances, entirely of [her] own
making after being ordered to leave the United States.” Wang, 437 F.3d at 274.

    Because we conclude that the denial of the motion to reopen was not an abuse of
discretion, Yang’s petition for review is DENIED.
