Zhu v. Attorney Gen. United States

744 F.3d 268

FEI YAN ZHU, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent.

No. 13–2207.

United States Court of Appeals, Third Circuit.

Argued Jan. 7, 2014.

Filed: March 4, 2014.

Theodore N. Cox, Esq., [argued], New York, NY for Petitioner.

Eric H. Holder, Jr., Esq., Stuart F. Delery, Esq., Thomas W. Hussey, Esq., Blair O'Connor, Esq., Glen T. Jaeger, Esq., Rachel L. Browning, Esq., [argued], United States Department of Justice, Washington, DC, for Respondent.

Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Fei Yan Zhu, a native and citizen of the People's Republic of China, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying her motion to reopen her removal proceedings pursuant to 8 C.F.R. § 1003.2. Because the BIA's opinion did not reflect meaningful consideration of much of the evidence that Zhu submitted in support of her motion, we will grant the petition for review, vacate the order denying the motion to reopen, and remand to the BIA for further proceedings.¹

I.

Zhu is from Changmen Village, Guantou Town, Lianjiang County, Fujian Province, China. She entered the United States in 1999 without proper documentation. During her interview with the Immigration and Naturalization Service (“INS”), she stated that she feared persecution because of her opposition to China's population control policies. The INS determined that she met the credible fear standard, and she was paroled into the United States for a hearing before an immigration judge (“IJ”) to determine her eligibility for asylum.

On February 15, 2000, Zhu appeared before the IJ, conceded her removability, and filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), based on a claim that she had been and/or would be persecuted for having resisted population control measures. At the hearing, Zhu testified that she had a heated exchange with birth control officials and that they tried to force her to wear an intrauterine device when they learned she and her boyfriend were living together. The IJ found Zhu's testimony lacked credibility, denied her application, and ordered her removed to China. The BIA affirmed the IJ's decision without an opinion.

In 2002, Zhu filed a timely motion to reopen, alleging that since the time of the IJ's decision she had married and given birth to a son, and that she would be forcibly sterilized if she returned to China. The BIA denied the motion, noting that Zhu only had one child, which was not in violation of Chinese population control policies, and that she had not shown that “a Chinese national becomes automatically subject to punitive birth control measures if she has returned with a child or children born outside China.” Appendix (“App.”) ² 1213.

In 2008, Zhu filed a second motion to reopen, alleging that she had given birth to two more children and that conditions had changed in China because the Chinese government now counted children born overseas when considering violations of its population control policies. She submitted, among other things, a notice from the Family Planning Office of Lianjiang County to Zhu's parents, indicating that Zhu must submit to sterilization upon her return to China, and a letter from her mother, noting that the officials had learned that Zhu had children. The BIA denied the motion because Zhu's documentation showed no material change in country conditions, but rather reflected “incremental increases in the enforcement of family planning policies in China that have been in existence for approximately 30 years.” App. 1146.

On January 14, 2013, Zhu filed a third motion to reopen, this time with voluminous documentation that she asserts demonstrates a “material change” in China's enforcement of its population control policies in her home region. See App. 11–1143. These documents purportedly come from the U.S. government, Chinese government websites, Chinese governmental entities or officials, and international media outlets. She contends that these documents show that the United States Department of State's May 2007 “China: Profile of Asylum Claims and Country Conditions” (the “2007 Profile”), which the BIA had previously relied upon concerning treatment of those who violate the population control policies, does not reflect current conditions in China. Among other things, Zhu asserts that these documents show that foreign-born children now count for family planning purposes and new programs have been implemented in her home province that more strictly enforce population controls. Zhu also provided an affidavit from an expert opining about the authenticity of four documents purporting to embody population control enforcement measures from Changle City, which is approximately thirty kilometers from Zhu's hometown of Guantou. On March 28, 2013, the BIA denied Zhu's motion to reopen, concluding that she had failed to establish a material change in country conditions and had not demonstrated a prima facie case for CAT relief. Zhu thereafter filed a petition for review.

II.

The BIA had jurisdiction under 8 C.F.R. § 1003.2 to review Zhu's motion to reopen, and we have jurisdiction to review the BIA's decision pursuant to 8 U.S.C. § 1252(a)(1). We review the denial of a motion to reopen for an abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) Thus, the BIA's ultimate decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003) (internal quotation marks omitted), and “will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 562 (internal quotation marks and citation omitted).³ Similarly, we review the BIA's evidentiary rulings deferentially. See Cheng v. Att'y Gen., 623 F.3d 175, 182 (3d Cir.2010).

III.

With limited exceptions, a motion to reopen must be filed within ninety days of the date of entry of a final administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain relief based on an untimely motion to reopen, Zhu had to provide material evidence of changed conditions in China that could not have been discovered or presented during the previous proceeding. See8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA denied Zhu's motion to reopen her removal proceedings because it found: (1) “[h]er evidence is not sufficient to establish a material change in circumstances or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitations for filing another late motion to reopen to apply for asylum,” and (2) she “has not demonstrated a prima facie case for protection under [CAT].” ⁴ App. 6.

To determine if the BIA abused its discretion in finding that Zhu did not present evidence to establish a material change in country conditions, we must determine if the BIA meaningfully considered the evidence and arguments Zhu presented. Zheng v. Att'y Gen., 549 F.3d 260, 266 (3d Cir.2008). This does not mean that the BIA is required to expressly parse each point or discuss each piece of evidence presented, id. at 268, but “it may not ignore evidence favorable to the alien.” Huang v. Att'y Gen., 620 F.3d 372, 388 (3d Cir.2010). To fulfill this requirement, the BIA must provide an indication that it considered such evidence, and if the evidence is rejected, an explanation as to why it was rejected.

In this case, Zhu presented more than 85 documents, spanning over 1,000 pages. With little explanation, the BIA concluded that: (1) Zhu failed to authenticate documents from China; (2) documents from places other than Zhu's hometown or county do not establish she is likely to be persecuted; (3) her expert's opinion concerning the authenticity of four foreign documents was speculative; (4) evidence from components of the United States government did not show Zhu would be subjected to sterilization; and (5) she did not show that the 2007 Profile is now inaccurate or unreliable. We will examine the BIA's treatment of each category of evidence.

A. Foreign Government Documents

1. Authentication Generally

We first address the authentication of documents from foreign sources. Pursuant to 8 C.F.R. § 1287.6,⁵ official foreign records must be “evidenced by an official publication” or “certified by an officer in the Foreign Service of the United States, stationed in the foreign country where the record is kept.” Attempting to comply with this provision, Zhu's attorney sent each Chinese government document to the Consulate General of the United States in Guangzhou, China, and the Fujian Provincial Foreign Affairs Office, asking for assistance in authenticating the documents, but he received no replies.

Although failure to authenticate pursuant to 8 C.F.R. § 1287.6 does not result in automatic exclusion, Liu v. Ashcroft, 372 F.3d 529, 532 (3d Cir.2004), an unsuccessful effort to obtain such a certification does not excuse the proponent of the document from providing other grounds on which the BIA could find that a document is what it purports to be. Indeed, we have held that when an asylum seeker fails to comply with the certification procedure set forth in 8 C.F.R. § 1287.6 because of a “lack of cooperation from government officials in the country of alleged persecution,” that individual may “attempt to prove the authenticity ... through other means.” ⁶Lin v. Att'y Gen., 700 F.3d 683, 686–87 (3d Cir.2012) (citing Liu, 372 F.3d at 533). Proponents of evidence have an obligation to lay a foundation from which a factfinder can conclude the evidence is what it purports to be and that it is trustworthy. The BIA concluded that Zhu had not “established the authenticity of her foreign documents in another manner.” App. 5. Other than its analysis of the expert's opinion concerning a handful of local documents, the decision treats most of the foreign documents Zhu submitted similarly, regardless of their alleged source, and does...