          United States Court of Appeals
                        For the First Circuit


Nos. 06-2479
     07-1568

                           YEN ZHENG ZHENG,

                              Petitioner,

                                  v.

                 MICHAEL B. MUKASEY, ATTORNEY GENERAL,

                              Respondent.


               ON PETITION FOR REVIEW OF AN ORDER OF THE
                      BOARD OF IMMIGRATION APPEALS


                                Before

                           Lynch, Chief Judge,
                 Torruella and Boudin, Circuit Judges.


     Dehai Zhang on brief for petitioner.
     Christina Bechak Parascandola, Trial Attorney, Allen W.
Hausman, Senior Ligigation Counsel, and Peter D. Keisler, Assistant
Attorney General, on brief for respondent.



                           October 29, 2008
           Per Curiam.      Petitioner Zheng, a citizen of China with

two American born children, seeks to reinstate her appeal of the

denial by the Board of Immigration [BIA] of Zheng's request for

asylum and related relief.           She alleges that the appeal was

withdrawn by her attorney due to a miscommunication and that she

never intended to abandon the appeal.           Zheng also seeks judicial

review of a decision by the BIA denying her motion to reopen

immigration proceedings, on the basis of newly discovered evidence.

Zheng may reinstate the original appeal. Nevertheless, we deny the

requests for relief.

           While   the   voluntary      dismissal   of    an   appeal   usually

deprives an appellate court of jurisdiction, see United States v.

Arevalo,   408   F.3d    1233,   1236    (9th   Cir.     2005),   courts   have

reinstated out of time appeals in extraordinary circumstances, such

as when an appeal has been dismissed by an attorney without the

approval of the client, Turker v. Ohio Dept. of Rehabilitation &

Corrections, 157 F.3d 453, 456 (6th Cir. 1998). Since it is

uncontested that the instant appeal was withdrawn without Zheng's

consent, we reinstate the appeal.           Nevertheless, it is without

merit.

           Petitioner's original claim was denied because the

immigration judge found her hearing testimony not to be credible.

The judge also found her petition to be frivolous, a finding which

would have barred petitioner from ever seeking to have her


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immigration status adjusted.           On appeal, the BIA affirmed the

denial of the petition on the ground that the immigration judge's

credibility findings were not clear error.               However, it reversed

the determination that the application was frivolous.

            Petitioner now claims that the credibility determination

of the immigration judge was not sustainable because the BIA

refused to uphold the finding that the asylum application was

frivolous. Since the BIA's reversal of the latter ruling does not

undermine    its    specific   finding      that   the   judge's    credibility

determination was supportable, the initial appeal is without

merit.

            After her initial petition was denied, Zheng sought to

reopen proceedings based on alleged new evidence.                  The evidence

consisted of affidavits from Zheng and her family, as well as

documents    from    the   Fujian    Provincial     Population      and   Family

Planning Commission (Zheng is a native of Fujian Province) and an

affidavit from one John Aird, said to be an expert on Chinese

population control policy.          The BIA held that, in light of State

Department country condition reports indicating that Chinese

nationals who return to China are not being subjected to forced

sterilization, Zheng had failed to establish her eligibility for

asylum and related relief. In the alternative, the BIA denied the

request on the grounds that the evidence presented was previously

available.    This court reviews denials of motions to reopen for


                                      -3-
abuse of discretion.        Zhang v. INS, 348 F.3d 289, 292 (1st Cir.

2003). Review is "highly deferential, focusing on the rationality

of the decision to deny reconsideration and reopening, not on the

merits per se, of the underlying claim."              Abdullah v. Gonzales,

461 F.3d 92, 99 (1st Cir. 2006).

              In order to reopen successfully a removal proceeding,

an   alien    must   both   "establish    a   prima   facie   case   for   the

underlying substantive relief sought," Zeng v. Gonzales, 436 F.3d

26, 29 (1st Cir. 2006) (citations omitted), and show that the

evidence presented "was not available and could not have been

discovered or presented at the former hearing," 8 C.F.R. §

1003.2(c)(1).        Even if both showings are met, the BIA retains

discretion to deny the motion,       Maryam v. Gonzales, 421 F.3d 60,

62 (1st Cir. 2005). Zheng alleges that, if returned to China, she

will likely undergo forced sterilization under China's one child

policy, because she already has two children.             Under INA Section

101(a)(42)(B), being forced to abort a pregnancy or to undergo

sterilization is per se persecution on account of political

opinion.

              In the instant case, the documents submitted indicate

that Zheng will likely face sanctions and penalties upon her

return.      This is insufficient to constitute persecution.          See In

re J-W-S, 24 I & N Dec. 185, 191 (BIA 2007) ("Enforcement efforts

resulting in moderate economic impact would not, in general, prove


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a well-founded fear of future persecution.") (citing cases).

Moreover, much of the evidence appears to have been available

prior to the determination of her first request for relief in

2005.

          Absent substantiation, self serving affidavits from

petitioner and her immediate family are of limited evidentiary

value.   Moreover, the affidavit from Zheng claims only that

officials in her home town have "notified [her] family in China

that I should undergo sterilization upon my return to China," not

that she would be compelled to do so.   A.R. 15.

          The Aird affidavit, which has been used in several

similar cases, has been consistently found to be less convincing

than the State Department Country Reports which indicate that a

returnee who has children will be penalized upon return, if at

all, only by fines or other economic penalties.    See Wang v. BIA,

437 F.3d 270, 276 (2d Cir. 2006) ("a balancing of the 2004 Country

Report against the Aird affidavit's criticism . . . would lead to

the conclusion . . . that petitioner has not shown he would face

anything more than economic sanctions if returned to China"); In

re J-W-S, 24 I & N Dec. at 191-92 (same); In re C-C, 23 I & N Dec.

899, 902-03 (BIA 2006) (same); but see Guo v. Ashcroft, 386 F.3d

556, 564-66 (3d Cir. 2004) (holding Aird affidavit sufficient to

establish prima facie case of likely persecution).    The strength

of the Aird affidavit is undermined both by the fact that it is


                               -5-
not based on personal knowledge and especially by the fact that

it "refer[s] to no incidents of forced sterilization of parents

who return to China with children born abroad."          In re J-W-S, 24

I & N Dec. at 190.      Finally, it should be noted that the Aird

affidavit pre-dates Zheng's original BIA decision and hence is not

new evidence.

             Zheng also relies on two documents from Fujian Province.

The first is a reply from the State Population and Family Planning

Commission to a question regarding the applicability of family

planning laws to Chinese citizens who have (like Zheng) given

birth to children outside the country. According to the document,

such births "may be determined as illegal birth and shall be dealt

with in compliance with relevant provisions of the Regulations on

Population and Family Planning of Fujian Province."               A.R. 37.

Second, a document from the Family Planning Office of Ting Jiang

Town   (apparently   petitioner's   home   town),   in   answer    to   the

question as to "what contraceptive measure needs to be taken after

giving birth to two children or more," states "sterilization."

A.R. 300.1    Taken together these suggest that a returnee with two


       1
      Zheng also supplies a document from a local city government
implementing "Fujian Province Family Planning Regulations" which
states that "after the second child has been born, then tubal
litigation must be performed."      A.R. 71. However, this same
document states that "[f]or those who refuse to practice birth
control in the aftermath of persuasion, authorities of all regions
can implement necessary administrative and economic penalties."
Id. It does not appear to indicate that forced sterilization will
be imposed.

                                  -6-
children faces sterilization.         Zheng notes that very similar

documents were held by the Second Circuit to require a remand to

the BIA to determine whether they were sufficient to establish a

well founded fear of persecution. Shou Yung Guo v. Gonzales, 463

F.3d 109, 112-15 (2d Cir. 2006); see also Lin v. Dep't of Justice,

473 F.3d 48, 55 (2d Cir. 2007) (remanding similar case in light

of Shou Yung Guo documents). Zheng urges this court to follow the

Second Circuit's lead.

              Subsequent events have weakened Zheng's position.       The

Second Circuit's remand was based on its recognition that the BIA

was     the   adjudicative   body   best   equipped   to   evaluate   the

significance of the Shou Yung Guo documents. Id. at 55.         The BIA,

after     considering   these   documents,     held   that    they    were

insufficient to establish a well founded fear of persecution.          In

re S-Y-G, 24 I & N dec. 247 (BIA 2007); see also In re J-W-S, 24

I & N Dec. 185 (considering similar documents). In J-W-S, the BIA

found that, although the documents do suggest that sterilization

is a policy for those with more than two children, there was no

"evidence that [the policy] is implemented through physical force

or other means that would amount to persecution."            Id. at 192.

Moreover, not only does the Chinese "central government policy

prohibit[] physical coercion to compel persons to submit to family

planning enforcement," but enforcement efforts in Fujian Province

in particular are "lax" and "uneven."        Id. at 193.     In fact, the


                                    -7-
2006 Country Reports indicates, based on interviews with visa

applicants from Fujian Province, no evidence of forced abortions

occurring there.        Finally, the 2007 State Department Report on

China refers to a letter from the Fujian Province Population and

Family Planning Commission which states that "children born abroad

. . . are not considered permanent residents of China, and

therefore are not counted against the number of children allowed

under China's family planning laws."              Id.    After evaluating all

the facts, the BIA concluded that the applicant had not shown a

well founded fear of persecution.

            In   reviewing      these   cases    after    remand,   the   Second

Circuit    noted   that   the    BIA    had    now   fulfilled    its   duty   by

considering the evidence it had failed to consider previously.

Shao v. Mukasey, ___ F.3d ___, 2008 WL 4531571 (2d Cir. 2008) at

*28 n.30.    The court also upheld the findings and conclusions of

the BIA denying petitioners' requests for relief. Id. at *19-*30.

            In sum, the Second Circuit remand was based on its

belief that the BIA had yet to evaluate the significance of the

Shou Yung Guo documents.         The BIA, which the court acknowledged

was   in   the   best   condition       to    perform    the   evaluation,     has

evaluated the evidence and concluded that the documents are

insufficient to establish a well founded fear of persecution.

That conclusion in turn has been upheld by the Second Circuit

panel.     Since Zheng has failed to bring forth any evidence which


                                        -8-
would call into question the BIA's determinations in these cases,

we conclude that she has failed to establish a prima facie case

for the relief sought.   Therefore, the BIA did not err in denying

the motion to reopen.

          The petition for judicial review is denied.




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