Chen v. Lynch , 825 F.3d 83 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1918
XIAO HE CHEN and LING YU LUO,
Petitioners,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Gary J. Yerman on brief for petitioners.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, Civil Division, United States Department
of Justice, and Christina P. Greer, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
June 9, 2016
SELYA, Circuit Judge. The sole question in this
immigration case is whether the Board of Immigration Appeals (BIA)
abused its discretion in declining to reopen the petitioners'
removal proceedings. We answer that question in the negative and
deny the petition for judicial review.
The historical facts and travel of the case are
susceptible to succinct summarization. The petitioners (Xiao He
Chen and her husband, Ling Yu Luo) are Chinese nationals. Early
in 2000, Chen entered the United States illegally. Her husband,
Luo, followed on October 17, 2002, entering the country by means
of a visitor's visa that granted him permission to remain until
April 16, 2003. Luo overstayed, and the couple married on December
18, 2008. Meanwhile, Chen became an active participant in the
China Democracy Party Foundation (CDP), a group committed to
political reform in China. Luo also became a member of the CDP.
In 2009, federal authorities instituted removal
proceedings against both petitioners. Later that year, the
petitioners conceded removability, and an immigration judge (IJ)
found Chen removable under 8 U.S.C. § 1182(a)(6)(A)(i) (for being
present in the United States without having been lawfully admitted
or paroled) and found Luo removable under 8 U.S.C. § 1227(a)(1)(B)
(for remaining in the United States longer than permitted).
What remained were the petitioners' applications for
asylum, withholding of removal, and protection under the United
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Nations Convention Against Torture (CAT).1 These entreaties
centered on the petitioners' claim that, if repatriated, they would
be subject to persecution (or worse) because of their pro-reform
political activities in the United States.
Following a merits hearing held on May 10, 2010, at which
Chen (but not Luo) testified, the IJ delivered a bench decision
denying all three kinds of requested relief. The IJ did not find
Chen credible, did not find the evidence sufficient to support
asylum, and did not find that the petitioners had carried their
burden of proving either of their other claims.
The petitioners unsuccessfully appealed to the BIA.
When notified of the BIA's decision, they abjured judicial review
and instead filed a timely motion to reopen and reconsider. They
submitted an amended motion on January 30, 2012, attaching a
variety of supporting documents. The BIA denied the amended motion
on May 21, 2012. Once again, the petitioners eschewed the filing
of a petition for judicial review.
Roughly three years passed. In the spring of 2015, the
petitioners filed a second motion to reopen. They argued changed
country circumstances and attached a trove of documents (including
country conditions reports, news articles, and family
1 The record is unclear as to whether Chen applied for these
forms of relief and named Luo as a derivative beneficiary or
whether both petitioners applied. In the present posture of the
case, we need not resolve that uncertainty.
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correspondence). The BIA denied the motion, concluding that it
was time-and-number barred and that the "changed country
circumstances" exception did not apply. The petitioners then filed
the instant petition for judicial review.
We need not tarry. The petition before us solicits our
review of the BIA's order denying the latest motion to reopen.
Motions to reopen are disfavored in immigration practice, and for
good reason: there is a compelling public interest in both finality
and the expeditious processing of immigration proceedings. See
INS v. Abudu, 485 U.S. 94, 107 (1988); Falae v. Gonzales, 411 F.3d
11, 14 (1st Cir. 2005). As a result, the BIA "enjoys considerable
latitude in deciding whether to grant or deny such a motion." Raza
v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007). Consequently, we
review the BIA's denial of a motion to reopen solely for abuse of
discretion. See INS v. Doherty, 502 U.S. 314, 323 (1992); Zhang
v. INS, 348 F.3d 289, 292 (1st Cir. 2003). Under that deferential
standard, we will affirm the BIA's order unless the petitioners
show "that the BIA committed an error of law or 'exercised its
judgment in an arbitrary, capricious, or irrational way.'" Jutus
v. Holder, 723 F.3d 105, 110 (1st Cir. 2013) (quoting Raza, 484
F.3d at 127).
For present purposes, it is important to note that this
case involves the disposition of the petitioners' second motion to
reopen. An alien who aspires to reopen removal proceedings is
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usually limited to only a single motion to reopen, which must be
filed within 90 days of the final agency order. See 8 C.F.R.
§ 1003.2(c)(2). These time and number restrictions may be relaxed,
however, when the alien establishes that "changed circumstances
have arisen in the country of nationality or in the country to
which deportation has been ordered."2 Larngar v. Holder, 562 F.3d
71, 74 (1st Cir. 2009) (citing 8 C.F.R. § 1003.2(c)(3)(ii)).
The petitioners attempt to avoid the time-and-number bar
by invoking this exception. To carry the day, an assertion of
changed country circumstances must satisfy two substantive
requirements. We limn those requirements.
The first requirement necessitates a showing that the
evidence offered in support of the alien's motion to reopen is
material and was not previously available. See 8 C.F.R.
§ 1003.2(c)(1), (c)(3)(ii); see also Fesseha v. Ashcroft, 333 F.3d
13, 20 (1st Cir. 2003). In determining whether this requirement
is satisfied, the BIA "compare[s] the evidence of country
conditions submitted with the motion to those that existed at the
time of the merits hearing below." Haizem Liu v. Holder, 727 F.3d
53, 57 (1st Cir. 2013) (citing In re S-Y-G-, 24 I&N Dec. 247, 253
(BIA 2007)). If the newly submitted evidence reveals no more than
2Here, the petitioners' country of nationality and the country
to which deportation has been ordered are one and the same: the
People's Republic of China.
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a continuation of previously existing conditions, it is inadequate
to show changed country circumstances. See Sugiarto v. Holder,
761 F.3d 102, 104 (1st Cir. 2014); see also Fen Tjong Lie v.
Holder, 729 F.3d 28, 31 (1st Cir. 2013).
To satisfy the second requirement, the alien must make
a showing of prima facie eligibility for the ultimate relief that
she seeks (in this instance, asylum, withholding of removal, and
CAT protection). See, e.g., Afful v. Ashcroft, 380 F.3d 1, 8 (1st
Cir. 2004). Even then, the alien must persuade the BIA to exercise
its discretion favorably and order her case reopened. See 8 C.F.R.
§ 1003.2(a).
Here, the petitioners argue that the evidence submitted
in support of their second motion to reopen demonstrated changed
country circumstances, namely, persecution in China of persons who
had operated as pro-democracy activists while in the United States.
In an effort to make this showing, they proffered two types of
evidence. First, they submitted correspondence and other
documents, purportedly from Luo's brother, relating to events that
he allegedly experienced in China. Second, they submitted reports
(from, inter alia, government agencies and media outlets)
describing general conditions in China. As we explain below, the
BIA did not act arbitrarily, capriciously, or irrationally in
holding that neither evidentiary proffer sufficed to demonstrate
a material change in country circumstances.
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With respect to the first part of the petitioners'
proffer, the BIA supportably concluded that the materials
submitted (which consisted of a letter detailing the alleged
experiences of Luo's brother in China, an arrest warrant, and an
injury report) lacked satisfactory authentication and, thus,
lacked probative value. That conclusion was well within the broad
compass of the BIA's discretion: there was nothing either in the
materials themselves or elsewhere in the record that furnished
even a shred of independent verification for the account attributed
to Luo's brother. And as we previously have explained, "[t]he BIA
has general 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); accord Liu, 727
F.3d at 56-57 (1st Cir. 2013); Le Bin Zhu v. Holder, 622 F.3d 87,
92 (1st Cir. 2010).
To be sure, the petitioners point to Chen's affidavit as
a means of authenticating the letter supposedly sent by Luo's
brother. That gambit fails. In the underlying proceeding, the IJ
found Chen's testimony unworthy of credence. That is significant
because special respect is due to the BIA's refusal to credit an
attempt at authentication by a witness whom the IJ earlier found
incredible.3 See Le Bin Zhu, 622 F.3d at 92; Qin Wen Zheng v.
3 We note, moreover, that the petitioners cite no authority
for the proposition that, in the absence of a proper foundation,
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Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007); cf. Zheng v.
Mukasey, 546 F.3d 70, 72 (1st Cir. 2008) (noting that, in the
absence of substantiation, "self serving affidavits from
petitioner and [his] immediate family are of limited evidentiary
value").
The inclusion of the arrest warrant and the injury report
in the letter attributed to Luo's brother does not advance the
petitioners' cause. Without the letter, these documents have no
independent probative value. And in all events, the arrest record
and injury report are purportedly official documents, which
themselves needed authentication. See 8 C.F.R. § 1287.6(requiring, at a minimum, that such documents be "attested by an
officer so authorized"). They lacked any such authentication.
For these reasons, we conclude that the BIA did not abuse its
discretion in according these unauthenticated documents little
weight.
This leaves the second type of evidence: general reports
from, inter alia, government agencies and news media describing
overall conditions in China. When compared to the evidence
presented at the 2010 merits hearing, this newly submitted evidence
a statement in Chen's affidavit could suffice to authenticate a
foreign document that she played no role in either creating or
obtaining. Cf. United States v. Jackson, 636 F.3d 687, 693-94
(5th Cir. 2011) (concluding that police officer could not testify
about proffered documents without adequate foundation allowing him
to authenticate them).
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falls short of showing changed country circumstances in China vis-
à-vis the treatment of returnees who had previously been active in
the CDP (or any comparable organization) while abroad. The
materials describe conditions in China (including deviations from
the rule of law and human rights violations) at a high level of
generality. And even though they allude to the suppression of
certain pro-democracy activists in China, none of these dissidents
is identified as a person returning from abroad. Nor do they
indicate that the level of suppression of pro-democracy activists
intensified between 2010 (when the merits hearing concluded) and
2015 (when the second motion to reopen was filed).
The petitioners suggest that the BIA overlooked
potentially significant evidence. This suggestion is woven
entirely out of wispy strands of speculation and surmise. The BIA
need not "discuss each piece of evidence individually." Liu, 727
F.3d at 57. Nor is it "required to dissect in minute detail every
contention that a complaining party advances." Raza, 484 F.3d at
128.
In a last-ditch endeavor to turn the tide, the
petitioners advance a curious claim. The BIA blundered, they say,
by resolving the question of changed country circumstances without
considering the findings contained in the State Department's 2009
Human Rights Report (the most recent report of its kind extant at
the time of the 2010 merits hearing). But the petitioners never
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introduced that report into the record, nor did they ever request
that the BIA take judicial notice of it. Thus, any claim based on
the contents of the 2009 Human Rights Report was not properly
exhausted and, accordingly, cannot be broached in this proceeding.4
See 8 U.S.C. § 1252(d)(1); Ahmed v. Holder, 611 F.3d 90, 97 (1st
Cir. 2010).
The bottom line is that the materials submitted with the
petitioners' second motion to reopen failed to show that Chinese
officials specially targeted political activists who operated in
the United States and then returned to China. Nor do those
materials show any meaningful change in the Chinese government's
posture either with respect to such matters or with respect to the
suppression of political dissent generally from 2010 to 2015.
We need go no further. After reviewing the record in
this case with care, we conclude that the BIA did not abuse its
discretion in holding that the petitioners failed to make an
adequate showing of a material change in country circumstances.
It follows that the petitioners' second motion to reopen was, as
the BIA ruled, time-and-number barred. We therefore deny the
petition for judicial review without reaching the issue of whether
4 Although the BIA has the power to take administrative notice
of the contents of official documents, it is not required to do so
sua sponte. See 8 C.F.R. § 1003.1(d)(3)(iv).
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the petitioners have carried their burden of showing a prima facie
case for merits relief.5
So Ordered.
5 The petitioners also assert that the BIA ought to have
reopened their case sua sponte. Because their opening brief fails
to make any developed argument in this regard, we deem their
assertion waived. See Ahmed, 611 F.3d at 98 (noting the "venerable
precept that appellate arguments advanced in a perfunctory manner,
unaccompanied by citations to relevant authority, are deemed
waived").
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