                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-3725
                                      ___________

                        ZHEN LE ZHAO; ZENG HUA ZHENG,
                                              Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondents
                    ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                      (Agency Nos. A073-184-302; A073-576-992)
                      Immigration Judge: Honorable Miriam Mills
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 1, 2010

           Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges

                           (Opinion filed: November 1, 2010)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Petitioners Zhen Le Zhao (“Zhao”) and Hua Zeng Zheng (“Zheng”) seek review of

the August 21, 2009 decision by the Board of Immigration Appeals affirming the

Immigration Judge’s (“IJ”) denial of petitioners’ applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Zheng also

seeks review of the IJ’s sua sponte reconsideration and denial of her motion to reopen.

For the following reasons, the petition for review will be denied.

                                             I.

       Zhao, the lead respondent, and Zheng, his wife, are both natives and citizens of

China. They were married in March 1996, and have two United States citizen children.

Their first child was born in April 1996 and their second was born in September 2000.

       Zhao entered the United States without inspection in 1991. In March 1994, Zhao

filed an administrative application for asylum and withholding of deportation, which was

denied without prejudice by the former Immigration and Naturalization Services (“INS”).

INS then initiated deportation proceedings against Zhao. On December 2, 2005, Zhao

filed a motion to change venue from New York to Philadelphia in which he conceded

removability as charged under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A). He also

filed a supplemental application for asylum, withholding of removal, and protection

under the CAT based on his fear of future persecution by the Chinese government

because of his participation in the 1989 student protest movement and because he has two

United States citizen children in violation of China’s one-child policy. The IJ in New

York transferred his case to an IJ in Philadelphia.

       Zheng entered the United States without inspection in 1993. She was served with

an Order to Show Cause in June 1996. She filed applications for asylum and withholding

of removal, but withdrew them after the IJ in New York granted her request for voluntary

departure until March 16, 1998. In 2006, Zheng filed a motion to reopen her asylum case

                                             2
based on the birth of her second child in 2002. She also filed a motion to change venue

from New York to Philadelphia. The IJ in New York granted both motions and

transferred her case to an IJ in Philadelphia.

       At his immigration merits hearing, Zhao testified that in 1989 he attended a protest

at which several of his schoolmates were arrested. Although Zhao escaped arrest, he

testified that he went into hiding upon the advice of his mother, who told him that police

had come to their home looking for him. He also testified that he was afraid he or his

wife would be forcibly sterilized if they returned to China because they now have two

children in contravention of China’s one-child policy. He testified that Chinese

authorities involuntarily sterilized his brother and his sister in the late 1980s. Zheng also

testified that she was afraid of being forcibly sterilized if she returned to China and that

her older sister had been sterilized after having two children.

       In November 2007, the IJ in Philadelphia sua sponte reconsidered Zheng’s motion

to reopen, previously granted by the IJ in New York, and denied it on the ground that

self-induced changes in personal circumstances, such as the birth of a second child, did

not support a reopening under INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii), and

that Zheng had not submitted evidence of changed country conditions sufficient to

warrant reopening. The IJ further found that, even if Zheng could proceed as a derivative

of her husband, her claim would fail because her husband’s testimony was incredible and,

even if it were credible, he failed to meet the burden of proof required for asylum.

       On appeal, the BIA affirmed the IJ’s decision to deny Zheng’s motion to reopen,

finding that she did not meet her burden of showing changed country conditions in China

                                                 3
that would lead to a well-founded fear of persecution. Without addressing the IJ’s

adverse credibility finding, the BIA also affirmed the IJ’s conclusion that Zhao failed to

establish that the Chinese government has any interest in harming him for his asserted

role in the student protests of 1989, and failed to establish a well-founded fear of forced

sterilization or other persecution due to having two United States citizen children.

       Since Zhao failed to meet his burden for asylum, the BIA held that he necessarily

failed to meet his burden for withholding of removal. The BIA also denied his

application for protection under the CAT. This petition for review followed.

                                              II.

       We have jurisdiction under 8 U.S.C. § 1252(a) to review final orders of removal

issued by the BIA. There are two standards of review applicable to this petition. First,

we review the denial of a motion to reopen for abuse of discretion. See Guo v. Ashcroft,

386 F.3d 556, 562 (3d Cir. 2004). Under this standard, the agency’s decision is

reversible only if it is shown to be arbitrary, irrational, or contrary to law. See Filja v.

Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Second, we will uphold the BIA’s factual

findings, including its determination whether an alien was subject to persecution or has a

well-founded fear of persecution, if they are “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992) (quotation omitted); see also Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002) (noting that whether an applicant for asylum has demonstrated past persecution or

a well-founded fear of persecution is a factual question). Under this deferential standard

of review, we must uphold the determination unless “any reasonable adjudicator would

                                               4
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Kibinda v.

Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007).

                                             III.

       Petitioners first challenge the denial of Zheng’s motion to reopen. A motion to

reopen may be filed at any time if the motion is filed for the purpose of applying for

asylum or withholding of deportation and is “based on changed country conditions

arising in the country of nationality . . . if such evidence is material and was not available

and could not have been discovered or presented at the previous proceeding.” 8 C.F.R. §

1003.23(b)(4)(i). Petitioners argue that the IJ and BIA erred in failing to consider having

a second child as “changed circumstances” sufficient to justify granting Zheng’s motion

to reopen and cite Qu v. Gonzales, a Ninth Circuit case, for the proposition that “personal

circumstances can be considered in changed circumstances.” 399 F.3d 1195, 1201 (9th

Cir. 2005) (quoting the IJ’s decision in that case). However, this language in Qu was

about new regulations allowing the INS to rebut the presumption of a well-founded fear

of persecution by demonstrating that there has been a fundamental change in

circumstances, which is not applicable here. Our precedent is clear that the birth of a

child by an alien in the United States is a change in personal circumstances and not a

change in country conditions for the purposes of reopening immigration proceedings.

See e.g., Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir. 2009). Upon review of the IJ’s

and the BIA’s decisions, we conclude that the BIA did not abuse its discretion in

affirming the IJ’s determination that Zheng failed to provide evidence of changed

conditions in China sufficient to justify granting her motion to reopen.

                                              5
       Petitioners next argue that this case should be remanded to the BIA because it

raises a question of statutory interpretation better suited for resolution by the BIA in the

first instance. 1 Petitioners submit that involuntary sterilization is a unique kind of

persecution, and it is unclear from the statutory definition of “refugee” whether having

more than one child is, per se, sufficient grounds for a well-founded fear of future

persecution among Chinese nationals. See 8 U.S.C. § 1101(a)(42). While the BIA is

well suited to interpret the statutes and regulations within its enforcement jurisdiction, the

BIA has already determined that this issue − whether a Chinese national faces a well-

founded fear of persecution based on violation of family planning policies − should be

decided on an individual basis based on the record evidence presented in each case. See

In re J-H-S, 24 I. & N. Dec. 196, 201 (BIA 2007) (“[T]he question whether the birth of

two children in China gives rise to a well-founded fear of persecution depends on the

facts of each case, including, in particular, the details of local family planning policies,

proof that an alien violated such policies, and evidence that local enforcement efforts

against the violation will rise to the level of persecution.”); see also In re J-W-S, 24 I. &

N. Dec. 185, 194 (BIA 2007). In this case, the BIA properly concluded that “the

respondent’s evidence [did] not demonstrate that involuntary sterilization, or other forced

birth control measures, are mandated in his home province or locality after the birth of a

       1
         Petitioners also argue in their brief that the IJ erred in finding Zhao’s testimony
       incredible. As the BIA assumed Zhao’s credibility in its decision, we need not
       address those arguments here. We do find ample support in the record to support
       the BIA’s conclusion that, even if deemed credible, Zhao failed to establish
       eligibility for relief based on his involvement in the 1989 student protest
       movement because he failed to show that the Chinese government had any interest
       in arresting him or otherwise harming him if he were to return to China.
                                               6
second United States citizen’s child.” A4. As a result, the respondent has not presented

the required individualized evidence demonstrating a valid fear of persecution.

                                           IV.

      Accordingly, the petition for review will be denied.




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