                            IN THE
               UNITED STATES COURT OF APPEALS
                   FOR THE SEVENTH CIRCUIT
                      ________________________

No. 07–2961

LI FANG HUANG,
                                                        Petitioner,
               v.

MICHAEL B. MUKASEY, Attorney General of the United States,
                                                    Respondent.


No. 07–3322

MING DUNG, also known as MING DONG,
                                                        Petitioner,
               v.

MICHAEL B. MUKASEY, Attorney General of the United States,
                                                    Respondent.

No. 07–3673

XIU QIN ZHENG, also known as XUIQIN ZHENG,
                                                        Petitioner,
               v.

MICHAEL B. MUKASEY, Attorney General of the United States,
                                                    Respondent.


No. 07–3840

XUE JIN LI ,
                                                        Petitioner,
               v.

MICHAEL B. MUKASEY, Attorney General of the United States,
                                                    Respondent.
               __________________________

                    Petitions to Review Orders of the
Nos. 07–2961, 07–3322, 07–3673, 07–3840                                   2

                  Board of Immigration Appeals.
    Nos. A77–651–879, A–74–762–766, A77–847–340, A78–125–604.
                  __________________________

            Argued July 9, 2008—Decided July 15, 2008*
                 __________________________

      Before POSNER, S YKES , and TINDER, Circuit Judges.
      POSNER, Circuit Judge. We have consolidated for decision
four petitions to review orders by the Board of Immigration
Appeals denying petitions to reopen removal proceedings. The
petitions to review present overlapping and to a degree identi-
cal issues.
      In Kucana v. Mukasey, No. 07–1002, 2008 WL 2639039 (7th
Cir. July 7, 2008), this court held that we do not have jurisdic-
tion to review petitions to reopen removal proceedings, includ-
ing proceedings in which the alien sought asylum, unless the
petition to review the Board of Immigration Appeals‘ denial of
reopening presents a question of law. The facts that the Board
finds, and the reasons that it gives, en route to exercising its
discretion to grant or deny a petition to reopen a removal pro-
ceeding, and the discretionary decision itself, cannot be reexam-
ined by a court, whether for clear error, lack of substantial evi-
dence, abuse of discretion, or any other formulation of a ground
for reversing an administrative decision; all the court can decide
is whether the Board committed an error of law. See also
Emokah v. Mukasey, 523 F.3d 110, 119 (2d Cir. 2008). That will
usually be a misinterpretation of a statute, regulation, or
constitutional provision. Kucana v. Mukasey, supra, at *2–4; Zeqiri
v. Mukasey, 529 F.3d 364, 369 (7th Cir. 2008); Cevilla v. Gonzales,
446 F.3d 658, 661 (7th Cir. 2006); Chen v. U.S. Dep’t of Justice, 434
F.3d 144, 153 (2d. Cir. 2006); Almuhtaseb v. Gonzales, 453 F.3d
743, 748 (6th Cir. 2006). But it could also be a misreading of the
Board’s own precedent, as in Ssali v. Gonzales, 424 F.3d 556,
*

This opinion is being released in typescript in advance of publication.
Nos. 07–2961, 07–3322, 07–3673, 07–3840                          3


564–66 (7th Cir. 2005), or the Board’s use of the wrong legal
standard, as in Azanor v. Ashcroft, 364 F.3d 1013, 1019–21 (9th
Cir. 2004), or simply a failure to exercise discretion or to con-
sider factors acknowledged to be material to such an exercise.
Kucana v. Mukasey, supra, at *4; see also Hanan v. Mukasey, 519
F.3d 760, 764 (8th Cir. 2008) (“wholesale failure to consider evi-
dence”).
     The category of reviewable determinations is illustrated by
a case this court decided the day after the Kucana decision. Lin
v. Mukasey, No. 07–3719, 2008 WL 26252776 (7th Cir. July 8,
2008). A Chinese woman who gave birth to two children in the
United States sought asylum on the ground that if returned to
China she would be forced to undergo sterilization for having
violated China’s “one child” policy. Her application for asylum
was rejected and she was ordered removed to China. She
remained in the United States illegally but later sought to
reopen her removal proceeding on the basis of changed
conditions in China—namely, more vigorous enforcement of
the one-child policy than when she had been ordered removed,
creating a grave risk that she would be subjected to sterilization.
In the course of denying the petition, the Board made a
statement that the government’s lawyer represented to us at
argument meant that if the sanction for violating the one-child
policy is a fine (called a “social compensation fee”), there can be
no inference of persecution even if the fine is so steep that the
violator will be unable to pay it and in consequence will be
ordered sterilized. Such a view would be inconsistent with (and
a misreading, rather than a deliberate, reasoned rejection of)
countless Board and court decisions and an unreasonable
interpretation of the federal statute that makes “resistance to a
coercive population control program” a ground for asylum. Id.
at *1–2; 8 U.S.C. § 1101(a)(42)(B). And so the Board’s denial of
the petition to reopen was not insulated from our review.
Nos. 07–2961, 07–3322, 07–3673, 07–3840                          4


      One of the cases before us today, Li’s case, No. 07–3840, is
almost identical to Lin, but with the critical difference that
rather than suggesting that forced sterilization is not
persecution as long as it just backs up the “social compensation
fee,” the Board found that there was no indication that the fee to
which Li might be subjected if she were returned to China and
punished for violating the one-child policy would be so stiff as
to place her in danger of being forced to undergo sterilization as
a sanction for failing to pay it. The Board did not intimate, as it
had in Lin, that so long as forced sterilization is used merely
against people who fail to pay the fee for having more than one
child, it is not persecution. Li is in the position therefore of
merely disagreeing with the weight that the Board placed on
the various items of evidence (country reports, provincial
regulations, an unauthenticated notice from the government of
Li’s village, etc.) en route to its discretionary denial of the
petition to reopen. No question of law is presented. We
therefore have no jurisdiction to decide whether the petition
should have been granted.
      In contrast, Zheng’s case, No. 07–3673, involves an
arguable error of law. He had come to the United States from
China in 1999 and had sought asylum on the ground that he
had been persecuted for belonging to an underground Catholic
church and for opposing China’s “one child” policy; he claimed
that his wife had been forced to have an abortion when she
became pregnant a second time. (Whether the husband of a
woman forced to have an abortion is automatically entitled to
asylum, or must show that he opposed the one-child policy, has
divided the circuits. Compare Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 396 (2d Cir. 2007) (en banc), with cases cited at
id. at 400 n. 4. But Zheng claims to have opposed the policy.)
The immigration judge denied asylum after an evidentiary
hearing in 2001. A letter purporting to be from Zheng’s former
employer in China said that he was being fired because his wife
Nos. 07–2961, 07–3322, 07–3673, 07–3840                           5


had had a second child, and this contradicted Zheng’s claim
about the abortion. And the letter was dated after Zheng
arrived in the United States, although he testified that it had
been given to him in China when, and in explanation for why,
he was fired. He submitted an abortion certificate but the
immigration judge found that China issues such certificates
only when the abortion is voluntary. There were other
contradictions and anomalies and in addition Zheng was
unable to answer elementary questions about Catholicism (such
as what communion is) and admitted never having attended a
Catholic service in the United States. The immigration judge
was skeptical that Zheng had ever been a Catholic, and rejected
the claim of persecution on account of either religion or the one-
child policy.
     In 2007 Zheng moved to reopen the removal proceeding,
primarily on the ground of changed country
conditions—China’s more vigorous enforcement of the one-
child policy after 2001, which we discussed in Lin. In support
Zheng presented affidavits from himself and his wife, along
with purported letters from an underground Catholic church in
China and his village government that indicate that if returned
to China he will be punished for having joined the church. The
affidavits state that his wife, who remains in China, has been
beaten in an effort to induce him to return to China to face the
music. The Board discounted the evidence presented in support
of the petition because the claim of persecution had been
rejected by the immigration judge in the removal proceeding.
     The fact that evidence presented in support of a claim of
asylum is rejected as noncredible has been held not to foreclose
the reopening of the removal proceeding on a separate ground.
Gebreeyesus v. Gonzales, 482 F.3d 952, 955 and n. 3 (7th Cir. 2007);
Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000); Guo v.
Gonzales, 463 F.3d 109, 114 (2d Cir. 2006); Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004); Kamalthas v. INS, 251 F.3d 1279,
Nos. 07–2961, 07–3322, 07–3673, 07–3840                           6


1284 (9th Cir. 2001). Those holdings are rulings of law, and if
the Board has rejected them, by holding that an immigration
judge’s refusal to credit any part of an asylum applicant’s
testimony precludes reopening even if the disbelieved
testimony is at once inconsequential and unrelated to the
grounds presented in the petition to reopen, its rejection would
present a question of law that we would have jurisdiction to
consider. But all the Board did in Zheng’s case was refuse to
allow his petition to reopen to be used as a vehicle for
reopening credibility issues. The immigration judge had not
ruled that discrimination against Zheng on the basis of his
belonging to an underground Catholic church could not
amount to persecution, and this would be consistent with his
facing persecution if returned to China, because the
government has intensified its opposition to such churches. The
immigration judge had simply disbelieved Zheng’s testimony
that anything had happened to him because of his belonging to
a Catholic church, and even doubted whether Zheng is really a
Catholic.
     Since Zheng had been found to have lied at the hearing
about both his claims, religious and population-policy
persecution, he would have had to present evidence in support
of reopening that was in no way dependent on his discredited
credibility in order to establish a well-founded fear of
persecution on the same grounds if he is returned to China. Guo
v. Ashcroft, supra, 386 F.3d at 562; cf. Guo v. Gonzales, supra, 463
F.3d at 114. His own and his wife’s affidavits, and
unauthenticated and possibly fraudulent documents
purportedly from the church and the village government, were
not evidence that could be assumed to be uncontaminated by
his demonstrated propensity to lie to obtain asylum. The Board
is not required to ignore such a propensity in assessing such
evidence, and so its decision in Zheng’s case is within its
discretionary authority and therefore unreviewable by us.
Nos. 07–2961, 07–3322, 07–3673, 07–3840                            7


      We turn to Huang’s case, No. 07–2961. Huang, a Chinese
woman, entered the United States in 1999 on false documents.
In 2002 she applied for asylum, claiming that she had fled
China because the government, in an effort to induce her to
marry a man whom she didn’t want to marry, had forced her to
have an abortion (she was pregnant by her boyfriend) and had
seized her family’s land. She failed to appear at her hearing
before an immigration judge and was ordered removed. In 2006
she filed a motion to reopen, arguing that she had missed the
hearing because she had not known when and where it would
be held; earlier, however, she had said that she had not
attended because she was afraid that she would be arrested and
removed if she did. Later she changed her story back to the
original one. The Board denied the petition, and the following
year she filed a second petition to reopen, this one on the
ground that she had received ineffective assistance at her first
hearing. She claimed that she had missed her hearing because
of a stomach ache and that her then lawyer had failed to explain
this to the immigration judge.
      The Board denied the second petition as untimely. The
deadline for the filing of a petition to reopen (180 days in
Huang’s case, 8 U.S.C. §§ 1229a(b)(5)(C)(i), (c)(7)(C), from the
date of the final order of removal, Pervaiz v. Gonzales, 405 F.3d
488, 490 (7th Cir. 2005); Guerrero-Santana v. Gonzales, 499 F.3d
90, 92–93 (1st Cir. 2007)) can be equitably tolled because the
statutory deadline is not jurisdictional. Pervaiz v. Gonzales, supra,
405 F.3d at 490, and cases cited there. But the Board refused to
allow Huang’s very late filing of a second petition because it
disbelieved the stomach ache story. As in Li’s case, no question
of law is presented by the petition to review the denial of
reopening, and so we have no jurisdiction.
      Had the Board refused to reopen the removal proceeding
because it did not think that Huang had received ineffective
assistance from her lawyer, rather than because the petition to
Nos. 07–2961, 07–3322, 07–3673, 07–3840                           8


reopen had been untimely, the petition for review might be
thought to present a question of law. Or might not; the issue is
treated inconsistently in our cases. Compare Sanchez v. Keisler,
505 F.3d 641, 647–48 (7th Cir. 2007); Kay v. Ashcroft, 387 F.3d 664,
676 (7th Cir. 2004), indicating “yes,” with Patel v. Gonzales, 496
F.3d 829, 831 (7th Cir. 2007), indicating “no,” and Nativi-Gomez
v. Ashcroft, 344 F.3d 805, 807–09 (7th Cir. 2003), and Stroe v. INS,
256 F.3d 498 (7th Cir. 2001), both leaning to “no.” We need not
try to eliminate the inconsistency in this case.
      That leaves Dung’s case, No. 07–3322. It is another one-
child case, indistinguishable from Li except that Dung further
argues that he should be allowed file a second asylum
application after the first is denied, without having to file a
petition to reopen. As he recognizes, we rejected the identical
contention in Cheng Chen v. Gonzales, 498 F.3d 758 (7th Cir.
2007), and he has presented no reason to suggest that our
decision should be reexamined.
      The petition in Li and Huang are dismissed for want of
jurisdiction. The petitions in Zheng and Dung, which complain
about both the Board’s exercise of its discretion to deny a
petition to reopen and alleged errors of law committed by the
Board, are dismissed in part and denied in part. Saintha v.
Mukasey, 516 F.3d 243, 249–53 (4th Cir. 2008); Emokah v.
Mukasey, 523 F.3d 110, 119 (2d Cir. 2008).
