                         NONPRECEDENTIAL DISPOSITION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

                                   Argued April 24, 2012
                                   Decided April 30, 2012

                                           Before

                            WILLIAM J. BAUER, Circuit Judge

                            MICHAEL S. KANNE, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 11-2900

LING MEI HUANG,                                  Petition for Review of an Order of the
     Petitioner,                                 Board of Immigration Appeals.

       v.                                        No. A077-353-495

ERIC H. HOLDER, JR.,
Attorney General of the United States,
      Respondent.



                                         ORDER

       Ling Mei Huang, a native of China (Fujian province), petitions for review of an
order of the Board of Immigration Appeals denying her motion to reopen removal
proceedings (her third such motion) to allow her to apply for relief as a battered spouse
and, in the alternative, to allow her to reapply for asylum, withholding of removal, and
protection under the Convention Against Torture. We deny the petition.


        The background facts of this case are detailed in an earlier order upholding the
Board’s denial of her second motion to reopen, Huang v. Gonzales, 130 F. App’x 814 (7th Cir.
2005), but we summarize them here. In 2001 Huang entered the United States at Los
No. 11-2900                                                                            Page 2

Angeles International Airport using fraudulent travel documents. When interviewed by
immigration officials at the airport, she told them that she had no fear of returning to
China. Later, however, she applied for asylum, withholding of removal, and CAT
protection, asserting that she had been persecuted by Chinese authorities who, among
other things, forced her to abort her child. After a hearing, the Immigration Judge denied
Huang’s application because her testimony about the abortion was not credible and an
abortion certificate she submitted was likely fraudulent. The Board of Immigration Appeals
affirmed without opinion. Around this time Huang sought to reopen removal proceedings
based on her recent marriage to a United States citizen, but the Board denied this motion
because there was insufficient evidence that the marriage was bona fide. A later motion to
reopen was also denied because aliens are allowed only one motion to reopen, 8 C.F.R.
§ 1003.2(c)(2), and this court affirmed. Huang, 130 F. App’x at 817.


        Huang did not leave the United States and in 2011—more than seven years after the
Board upheld the IJ’s removal order—filed a third motion to reopen, asserting two bases
for relief that are relevant here. First, she sought to adjust her status as a self-petitioner
under the Violence Against Women Act, 8 U.S.C. § 1229b(b)(2)(A), based on abuse by her
ex-husband. Under the VAWA, aliens who are subject to a final order of removal but who
are victims of spousal abuse may seek reopening within a year of a final removal order—a
deadline that the Attorney General can waive in his discretion if the alien can demonstrate
extraordinary circumstances or extreme hardship to a child. See 8 U.S.C.
§ 1229a(c)(7)(C)(iv)(III). Huang argued that her return to China would cause extreme
hardship to her two daughters (who were born during a second marriage that ended just
before she filed her motion) because they would be subject to China’s one-child policy once
they got older and might be denied social services. She relied on a 2010 report from a Hong
Kong-based activist group, Chinese Human Rights Defenders, stating that violators of the
one-child policy, if they do not pay fines, often have trouble obtaining a “hukou”—family
registration, a necessary precondition for her children to obtain education and other
services. Second, Huang sought to reapply for asylum, withholding of removal, and CAT
Protection based on changed country conditions that could not have been presented earlier,
namely stricter enforcement of China’s one-child policy. See 8 C.F.R. § 1003.2(C)(3)(ii). She
based her argument on an unsworn statement from a woman from her hometown, who
said that she had been forced to undergo tubal ligation surgery; a 2009 report from the State
Department stating that one parent is “often pressured to undergo sterilization” after a
couple has two children; and a purported notice from the local family planning office that
she will be punished with fines and forced to undergo tubal ligation surgery upon her
return.
No. 11-2900                                                                               Page 3

        The BIA denied Huang’s motion as untimely filed and numerically barred. For the
VAWA claim, the board declined to waive the filing deadline, concluding that Huang had
not established that waiver was necessary to prevent extreme hardship to her daughters.
Although the children will likely experience some hardship, the Board reasoned, Huang
had not provided evidence that the children would be deprived of educational
opportunities; moreover, the children had been exposed to their mother’s native language
and will have a support system of family members in China. The Board also concluded that
Huang had failed to establish changed country conditions: the State Department report
described China’s one-child policy in terms basically unchanged from an earlier report; the
statement purportedly from a victim (from Huang’s hometown) of forced sterilization was
unsworn; and the letter from local authorities telling her that she will be punished for
violating the one-child policy had not been authenticated under 8 C.F.R. § 1287.6.


        In her petition Huang argues that the Board erred in declining to grant her a waiver
under the VAWA because the Board ignored evidence that the children would face extreme
hardship if she were returned to China. She points to evidence that her children would be
deprived of educational opportunities in China, as reflected in the report from the Chinese
Human Rights Defenders. The government, however, characterizes Huang’s claim as a
challenge to the Board’s weighing of the evidence and argues that this court lacks
jurisdiction to review the Attorney General’s discretionary determination to grant or deny
a waiver of the time limit under the VAWA. Huang acknowledges that this court does not
have jurisdiction over discretionary determinations, but counters that she is asserting a
legal claim—that the Board failed to consider evidence—which this court does have
jurisdiction to review.


        The parties are correct to assume that we lack jurisdiction to review the Board’s
discretionary determination regarding the denial of a waiver under the VAWA. Under 8
U.S.C. § 1252(a)(2)(B)(ii), we do not have jurisdiction over “any . . . decision or action of the
Attorney General . . . the authority for which is specified under this subchapter to be in the
discretion of the Attorney General.” That subchapter includes the VAWA, which provides
that “the Attorney General may, in the Attorney General’s discretion, waive this time
limitation in the case of an alien who demonstrates extraordinary circumstances or extreme
hardship to the alien’s child.” Id. § 1229a(c)(7)(C)(iv)(III) (emphasis added); see Arcega v.
Mukasey, 302 F. App’x 182, 184 (4th Cir. 2008) (nonprecedential disposition) (VAWA’s
“extreme hardship” determination falls within § 1252(a)(2)(B)(ii)’s jurisdictional bar);
Okereke v. Att’y Gen., 272 F. App’x 460, 462 (3d Cir. 2008) (nonprecedential disposition)
(same).
No. 11-2900                                                                                Page 4

        But we retain jurisdiction to review the Board’s ruling to the extent that Huang
presents a constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(D); Torres-Tristan
v. Holder, 656 F.3d 653, 658 (7th Cir. 2011). Huang contends that the Board’s conclusion that
she had “not provided evidence” that her daughters would be deprived of educational
opportunities is belied by the Chinese Human Rights Defenders report explaining that
children of Chinese parents who violate the one-child policy are often denied a
hukou—and thus access to education—unless they pay fines. We have recognized that a
contention that the Board “completely ignored the evidence put forth by a petitioner is an
allegation of legal error.” Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008). In other
words, the Board commits legal error when it fails to exercise its discretion at all. See
Munoz-Pacheco v. Holder, No. 11-2444, slip op. at 5–6 (7th Cir. Mar. 14, 2012); Kiorkis v.
Holder, 634 F.3d 924, 928–29 (7th Cir. 2011); Champion v. Holder, 626 F.3d 952, 956 (7th Cir.
2010); Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008); Kucana v. Mukasey, 533 F.3d 534,
548–39 (7th Cir. 2008), rev’d sub nom., 130 S. Ct. 827 (2010). Huang slips through this narrow
jurisdictional window by asserting that the Board ignored her evidence.


        Nonetheless, there was no legal error here. The Board need only “‘consider the
issues raised[] and announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.’” Solis-Chavez v. Holder, 662
F.3d 462, 469 (quoting Iglesias, 540 F.3d at 531). The Board acknowledged the “various
reports” Huang submitted and that her daughters “will likely experience some hardship”
and weighed this consideration against positive factors, such as family support and
familiarity with the Chinese language. And indeed the report from Chinese Human Rights
Defenders explaining that children of parents who violate the one-child policy are denied a
hukou unless they pay fines was not evidence that her children would be denied
education—the report says nothing about parents whose children are born outside of
China, and Huang never even asserted that she would not be able to pay whatever fines
may apply to her.


        Huang next argues that the Board abused its discretion in concluding that she had
not established a material change in China’s enforcement of its one-child policy, rehashing
the arguments she made to the Board. But Huang cannot rely on the fact that she had two
children in the United States after she was ordered removed; those are changes in personal
circumstances, not country conditions. See Liang v. Holder, 626 F.3d 983, 988 (7th Cir. 2010);
Joseph v. Holder, 579 F.3d 827, 834 (7th Cir. 2009); Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.
2007). Nor can she rely on the notice from authorities that she would be forcibly sterilized;
that notice was not properly authenticated under 8 C.F.R. § 1287.6 and thus the Board did
not act unreasonably in rejecting it. See Liang, 626 F.3d at 990-91; Lin v. Holder, 626 F.3d 983,
990 (7th Cir. 2010); Huang v. Mukasey, 534 F.3d 618, 622 (7th Cir. 2008). Accordingly, the
petition is DENIED.
