Gi Kuan Tsai v. Holder , 505 F. App'x 4 ( 2013 )


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  •                 Not for Publication in West's Federal Reporter
    United States Court of Appeals
    For the First Circuit
    No. 12-1654
    GI KUAN TSAI,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., Attorney General,
    Respondent.
    PETITION FOR REVIEW OF AN ORDER OF THE
    BOARD OF IMMIGRATION APPEALS
    Before
    Lynch, Chief Judge,
    Howard, Circuit Judge,
    and Casper,* District Judge.
    Cora J. Chang on brief for petitioner.
    Gregory M. Kelch, Trial Attorney, United States Department of
    Justice, Office of Immigration Litigation, Linda S. Wernery,
    Assistant Director, Civil Division, and Stuart F. Delery, Acting
    Assistant Attorney General, Civil Division, on brief for
    respondent.
    March 6, 2013
    *
    Of the District of Massachusetts, sitting by designation.
    CASPER, District Judge.          Petitioner Gi Kuan Tsai seeks
    review of the decision by the Board of Immigration Appeals ("BIA")
    denying his untimely motion to reopen removal proceedings on the
    basis that he failed to meet the exception to the ninety-day filing
    requirement for changed country conditions material to the claim
    for asylum.       Finding no abuse of discretion, we deny Tsai's
    petition for review.
    I.    Facts & Background
    Tsai is a native and citizen of China who entered the
    United States at Los Angeles International Airport on May 8, 2000
    using a counterfeit passport and counterfeit non-immigrant visa,
    both   in   the   name   of    Zhao   Jian   Min.     Tsai   was   detained   by
    immigration officials and on May 9, he gave a sworn statement to an
    Immigration and Naturalization Service officer.               When asked the
    purpose of his visit, Tsai replied, "I come here to make a living.
    The American policy is more human and they respect human rights."
    Tsai explained that he had opened a restaurant in China, but did
    not want to pay the "many taxes."             Tsai also mentioned that he
    wanted to have more children, but did not mention his wife being
    forced to have an IUD implanted or being forced to have an
    abortion. At a subsequent interview with an immigration officer on
    May 23, 2000, Tsai said that he had only one child because Chinese
    officials made his wife get an abortion when she got pregnant again
    in violation of the one child policy.               He added that he was not
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    asked about his wife's abortion during the interview on May 9.
    Tsai also said he was afraid to return to China because he would
    like to have more children and would be apprehended, jailed and
    fined for fleeing China illegally.
    On May 7, 2001, Tsai filed an "Application for Asylum and
    for Withholding of Removal." In the application, he explained that
    after his wife gave birth to their son, the Chinese authorities
    forced his wife to have an IUD implanted.   According to Tsai, his
    wife became pregnant despite the presence of the IUD and Chinese
    officials forced her to have an abortion.
    On January 10, 2003, Tsai appeared before an Immigration
    Judge ("IJ") and testified about his wife's forced abortion and
    closing his eatery because he refused to pay the taxes.     The IJ
    denied Tsai's application for asylum, withholding of removal and
    protection under the Convention Against Torture ("CAT").    The IJ
    noted that the record did not contain any evidence apart from
    Tsai's own testimony concerning his wife's abortion or his tax
    debt.   The IJ found that Tsai's testimony "cannot be given any
    credence" because (1) he "consistently lied" by using a false name,
    a fraudulent passport and a fraudulent non-immigrant visa upon
    arrival in the United States; and (2) he failed to mention his
    wife's abortion when questioned about the reason he came to the
    United States during his initial sworn statement during the May 9
    interview upon arrival in the U.S.   The IJ further noted that Tsai
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    had failed to provide documentary evidence of his wife's abortion
    and IUD and his tax issues.         The IJ found that Tsai could have
    obtained these materials because he was able to proffer some
    documents    from    China   such   as    his   wife's   and    son's      birth
    certificates.       Based on Tsai's lack of credibility and lack of
    corroborating evidence supporting his claims, the IJ denied Tsai's
    application.
    On appeal, the BIA affirmed the IJ's decision.                The BIA
    noted that the IJ's credibility analysis was "minimal," but upon
    its own review of the record the BIA declined to set aside the IJ's
    decision. The BIA based its decision on the material inconsistency
    between Tsai's sworn statement on May 9 and his asylum application
    and later testimony. Given this inconsistency, "[Tsai's] testimony
    alone is not sufficient to sustain the burden of proof."                  The BIA
    considered that Tsai failed to offer corroboration and "did not
    convincingly explain the absence of corroboration of his wife's
    alleged hospitalization, abortion or the insertion of an IUD,"
    which were "reasonably available . . ., especially in light of the
    other documents he received from China."
    Tsai    petitioned   for     judicial   review     of   the    BIA's
    decision.    See Tai v. Gonzales, 
    423 F.3d 1
     (1st Cir. 2005).               This
    Court denied Tsai's petition and held that the BIA's adverse
    credibility finding was supported by substantial evidence because
    it was based on Tsai's initial failure to mention his wife's
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    contraception and abortion, which was a discrepancy that "went to
    the heart of [Tsai's] claim."       
    Id. at 5
    .
    On September 14, 2011, many years after the IJ's 2003
    decision and the BIA's 2004 decision, Tsai filed a motion to reopen
    his removal proceedings. As required to excuse his failure to file
    a motion to reopen within the ninety-day regulatory window, 
    8 C.F.R. § 1003.2
    (c)(3)(ii), Tsai argued that "his allegations of new
    facts arising in China constitute changed country circumstances
    that materially affect his eligibility for asylum."                 In support of
    his motion, he offered:        (1) his own sworn affidavit; (2) unsworn
    letters purporting to be from his wife, son and neighbor;(3)
    unauthenticated hospital records; and (4) an April 2011 State
    Department report on China.
    Tsai claimed in his affidavit that during a telephone
    call with his wife in February 2011, he told her that United States
    citizens enjoy "democracy, freedom and human rights," that the
    Chinese government is "inhumane" and is the only government that
    "forces" people to undergo abortions and sterilizations, and that
    Chinese    citizens   should    oppose   the       "coercive   family      planning
    policy."    Tsai claimed that his wife discussed these remarks with
    their neighbors in China.       Tsai also claimed that in March 2011, he
    sent his wife "many reports and articles" that "reveal the cruelty
    of Chinese government to slaughter lives and persecute women under
    the   coercive   family   policy   and     .   .    .   criticize    the    Chinese
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    government to undermine human rights of Chinese people" and asked
    her to distribute them to their neighbors.               According to Tsai, his
    wife did so and was arrested, beaten and detained by the police in
    April 2011 for these actions.
    Tsai also provided written statements purporting to be
    from       his   wife,   his    son   and    a    neighbor   along   with   English
    translations of those documents.                  They were all dated July 15,
    2011, written in support of Tsai's motion to reopen and contained
    very similar (if not identical) language recounting the same
    account of events Tsai made in his affidavit.1                 A prescription note
    from       Changle   City      Hospital     indicated   that    Tsai's    wife   was
    prescribed medication for a "[s]oft tissue contusion" on April 11,
    2011.       Tsai also provided his wife's medical records from the
    Medical Institution of Fuzhou City indicating that she experienced
    symptoms "after [being] beaten by someone yesterday."                    Tsai's wife
    explained in her letter that the hospital declined to provide
    1
    For example, Tsai's wife's letter said, "In March 2011,
    after my husband collected some reports and articles to reveal the
    cruelty of Chinese government on slaughtering lives by executing
    coercive family planning policy and on persecuting many women and
    to denounce Chinese government for violation of people's human
    rights, he mailed these materials to our home in China."
    Similarly, Tsai's son's letter explained that his father sent
    "reports and articles [that] revealed the cruelty of Chinese
    government to slaughter lives and persecute women under the
    coercive family planning policy and to criticize [the] Chinese
    government to undermine human rights of Chinese people." Tsai's
    wife expressed that her "neighbors and I were shocked after we read
    through these materials" and Tsai's neighbor also recounted that
    "[w]e were shocked after reading those reports and articles."
    -6-
    authentication of her medical records and prescription note.                 Tsai
    did not provide any official documentation of his wife's arrest.
    According to Tsai's wife, she went to the police station and asked
    for official documentation of her arrest, but was ordered to go
    home.
    On April 25, 2012, the BIA denied Tsai's motion to reopen
    the removal proceedings.        The BIA considered Tsai's evidence and
    found that it did not "satisfy the heavy burden of establishing
    materially changed circumstances."                The BIA also stated that the
    evidence    was   insufficient        with    regard    to     the   documentation
    "allegedly issued by a hospital, which has not been authenticated
    in   any   manner"   and   in   light        of   the   IJ's    previous   adverse
    credibility determination. Tsai timely filed this petition seeking
    review of the BIA's denial of his motion to reopen.
    II.    Analysis
    We review the BIA's denial of a motion to reopen for
    abuse of discretion, which means an error of law or exercise of
    judgment in an arbitrary and capricious or irrational manner. Raza
    v. Gonzales, 
    484 F.3d 125
    , 127 (1st Cir. 2007).                  We will "uphold
    the [BIA's] subsidiary findings of fact as long as they are
    supported by substantial evidence," and review "embedded legal
    conclusions de novo," and "judgment calls for abuse of discretion."
    Vaz Dos Reis v. Holder, 
    606 F.3d 1
    , 3 (1st Cir. 2010).                  Our review
    "is highly deferential, focusing on the rationality of the decision
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    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).
    "Motions to reopen removal proceedings are disfavored as
    contrary to 'the compelling public interests in finality and the
    expeditious processing of proceedings.'"              Raza, 
    484 F.3d at 127
    (quoting Roberts v. Gonzales, 
    422 F.3d 33
    , 35 (1st Cir. 2005)).
    "As a result, the BIA enjoys considerable latitude in deciding
    whether to grant or deny such a motion," 
    id.,
     and a person seeking
    to   reopen    such    proceedings    bears   a    "heavy    burden."     Ven   v.
    Ashcroft, 
    386 F.3d 357
    , 361 (1st Cir. 2004) (quoting In re Coelho,
    
    20 I. & N. Dec. 464
    , 472 (BIA 1992)) (internal quotation marks
    omitted).
    "There   are   both    substantive    and     procedural   bars   to
    reopening removal proceedings." Smith v. Holder, 
    627 F.3d 427
    , 433
    (1st Cir. 2010). Procedurally, a petitioner is limited to a single
    motion to reopen a removal proceeding, which must be submitted
    within ninety days of the final administrative decision.                 
    8 C.F.R. § 1003.2
    (c)(2).       However,     these   procedural       limitations      are
    "relaxed" if a petitioner "makes a convincing demonstration of
    changed conditions in his homeland."                Smith, 627 F.3d at 434
    (quoting Tandayu v. Mukasey, 
    521 F.3d 97
    , 100 (1st Cir. 2008))
    (internal quotation marks omitted).               "The change in conditions
    'must be material to the underlying substantive relief that the
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    alien is seeking . . . and the evidence tendered in support thereof
    must have been unavailable during the prior proceedings.'"                  
    Id.
    (omission   in    original)   (quoting        Raza,   
    484 F.3d at 127
    ).
    Substantively, the BIA may deny a petition if it determines that
    the movant has failed to meet either of two requirements:                    (1)
    establish a prima facie case for the underlying relief sought; and
    (2) introduce previously unavailable, material evidence.                 Id. at
    433.
    Tsai brought his motion to reopen more than ninety days
    after the BIA's final administrative decision.              Because he missed
    the ninety-day window, Tsai must demonstrate changed conditions in
    China that are material to his application for asylum, withholding
    of removal and CAT protection.               The BIA denied Tsai's motion
    because the evidence he presented in support of his motion failed
    to "satisfy the heavy burden of establishing materially changed
    circumstances."     The heart of Tsai's challenge to the BIA's ruling
    is his contention that the BIA failed to give adequate weight to
    that evidence.
    Tsai argues that the BIA erred as a matter of law in
    refusing to accord proper weight to the supporting documents and by
    denying   his    motion   based   in   part    on   the   IJ's   prior   adverse
    credibility finding.      Specifically, Tsai argues that the BIA erred
    in considering that the hospital records were not "authenticated in
    any matter" when rendering its decision and such alleged lack of
    -9-
    authentication should not be detrimental to his motion to reopen.
    Tsai asserts that "to the extent that he is facing the prospect of
    harm and persecution in China, it is equally impractical for him to
    personally have the Chinese government authenticate his wife's
    hospital medical record" pursuant to 
    8 C.F.R. § 1287.6
    .              However,
    in considering materials offered in support of a motion to reopen,
    the "BIA has discretion to deem a document's lack of authentication
    a telling factor weighing against its evidentiary value," Hang Chen
    v. Holder, 
    675 F.3d 100
    , 107 (1st Cir. 2012), notwithstanding the
    difficulty a Chinese citizen may have authenticating the record
    pursuant to 
    8 C.F.R. § 1287.6
    .       See Xiu Xia Zheng v. Holder, No.
    12-1325, 
    2013 WL 491965
    , at *3 (1st Cir. Feb. 11, 2013) (holding
    that it was not an abuse of discretion for the BIA to discount the
    evidentiary value of the Chinese petitioner's evidence where it
    lacked   authentication   pursuant    to   
    8 C.F.R. § 1287.6
        or   an
    alternative authentication method); cf. Yan v. Gonzales, 
    438 F.3d 1249
    , 1256 n.7 (10th Cir. 2006) (explaining that because the
    "authentication   procedures   [described      in   
    8 C.F.R. § 1287.6
    ]
    generally require attestation of documents by the very government
    the alien is seeking to escape, courts generally do not view the
    alien's failure to obtain authentication as requiring the rejection
    of a document," but, the IJ may find this evidence to be of limited
    evidentiary value).
    -10-
    Moreover, the BIA's decision did not solely rest on the
    limited weight ascribed to an unauthenticated document, but also
    relied upon consideration of an IJ's prior adverse credibility
    finding      against   the    petitioner.       Giving     limited    weight    to
    unauthenticated evidence where the petitioner's own credibility
    remains at issue is an appropriate exercise of discretion.                See Le
    Bin Zhu v. Holder, 
    622 F.3d 87
    , 92 (1st Cir. 2010) (noting that it
    is   "well    within    the   BIA's    discretion    to   find   that   lack    of
    authentication undermines the evidentiary value of a document" and
    that "[t]his is especially the case when, as here, the BIA's
    decision to do so is supported by an adverse credibility finding").
    Tsai further argues that it was error for the BIA to rely
    on this lack of authentication because authenticity is a question
    of fact and the BIA, as an appellate body, should not engage in
    factfinding.      Although Tsai is correct that "the Board will not
    engage in factfinding in the course of deciding appeals," 
    8 C.F.R. § 1003.1
    (d)(3)(iv), this case concerns a motion to reopen and not
    an appeal of an IJ's decision.           Furthermore, as discussed above,
    this   Court    has    repeatedly     held   that   the   BIA   may   assess   the
    authenticity of a petitioner's evidence when deciding a motion to
    reopen.      See, e.g., Zheng, 
    2013 WL 491965
    , at *3.
    The BIA was also within its discretion in finding that
    Tsai's affidavit and the letters from Tsai's wife, son and neighbor
    did not satisfy the "heavy burden" of establishing materially
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    changed circumstances given that they were self-serving; i.e., each
    was produced for the purpose of reopening Tsai's final order of
    removal and written by the petitioner's family or a person close to
    the petitioner.       See Le Bin Zhu, 
    622 F.3d at 92
     (holding that the
    BIA was within its discretion in finding that a letter allegedly
    sent by the petitioner's mother did not establish material changed
    circumstances); Zheng v. Mukasey, 
    546 F.3d 70
    , 72 (1st Cir. 2008)
    (noting that "[a]bsent substantiation, self serving affidavits from
    petitioner and her immediate family are of limited evidentiary
    value").2
    Tsai also argues that the BIA should have granted his
    motion   to    reopen   because   he    made   a     prima   facie    showing    of
    eligibility     for   asylum.     However,     the    question   of    whether    a
    petitioner has presented sufficient evidence of changed country
    conditions to excuse the untimely filing of a motion to reopen is
    distinct from the question of whether this evidence, along with the
    evidence already in the record, shows that the petitioner has a
    reasonable likelihood of prevailing on his asylum claim.                        See
    Smith, 627 F.3d at 433.         The BIA did not abuse its discretion in
    2
    Tsai also argues that the BIA failed to evaluate whether
    his alleged new facts are material. This argument is without merit
    because the BIA considered the evidence upon which Tsai relied in
    support of his motion and explained that it did "not find that the
    evidence presented satisf[ied] the heavy burden of establishing
    materially changed circumstances" and we have found that this
    determination does not constitute an abuse of discretion.
    -12-
    concluding that Tsai failed to make a convincing demonstration of
    materially changed conditions in China, and thus Tsai did not make
    the showing necessary to relax the procedural limitations such that
    he could file an untimely motion to reopen.   Accordingly, the BIA
    did not need to address the merits of Tsai's claim, that is,
    whether or not he made a prima facie case for eligibility for
    asylum.   See id. at 440 (treating the establishment of a change in
    country conditions that would excuse the petitioner's late filing
    and the showing of a prima facie case of eligibility for asylum as
    discrete and sequential inquiries); Larngar v. Holder, 
    562 F.3d 71
    ,
    80 (1st Cir. 2009) (same).
    III.   Conclusion
    For the foregoing reasons, Tsai’s petition for review is
    denied.
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