Jisheng Xiao v. Eric Holder, Jr. , 459 F. App'x 485 ( 2012 )


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  •      Case: 11-60407     Document: 00511750018         Page: 1     Date Filed: 02/07/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 7, 2012
    No. 11-60407
    Summary Calendar                        Lyle W. Cayce
    Clerk
    JISHENG XIAO,
    Petitioner
    v.
    ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A094 907 040
    Before REAVLEY, SMITH, and PRADO, Circuit Judges.
    PER CURIAM:*
    Jisheng Xiao, a native and citizen of China, was ordered deported in 2008,
    and his applications for asylum, withholding, and protection under the
    Convention Against Torture (CAT) were denied. We denied his petition for
    review, concluding that “Xiao offered no support for his assertion that he would
    be forcibly sterilized upon returning to China.” Xiao v. Holder, 349 F. App’x 909,
    910 (5th Cir. 2009). We stated that the State Department Country Profile in
    evidence noted that the Family Planning Regulations of Fujian Province
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
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    provided that “the penalty for not meeting the population and family planning
    regulations is a social maintenance fee, not sterilization.” Id.
    Xiao filed a motion to reopen with the Board of Immigration Appeals
    (BIA), accompanied by an application for asylum, withholding, and relief under
    the CAT. Xiao asserted once again that he feared sterilization in China on
    account of his two United States citizen children. The BIA denied Xiao’s motion
    to reopen on May 23, 2011. The BIA noted that the motion was untimely
    because it was not filed within 90 days of the administrative final order in his
    case.    The BIA held that Xiao’s motion failed to demonstrate prima facie
    eligibility for asylum because his key evidence—a letter from a village
    committee—was unreliable and lacked authentication and a certification of
    translation.
    In his petition for review, Xiao argues that the BIA abused its discretion
    by failing to consider the evidence in the record which established that he has
    a prima facie fear of persecution based on changed country conditions in China.
    Xiao argues that the village certification is new and previously unavailable
    evidence of changed country conditions in China material to his claim that he
    fears persecution on account of his two U.S. born children. He argues that the
    BIA abused its discretion in finding that the village certificate was unreliable
    because it was unauthenticated. He contends that the BIA failed to consider
    multiple factors in the record relevant to the authenticity and reliability of the
    village certificate. He argues that because authentication of foreign documents
    can be established by any recognized procedure, the BIA’s failure to explain why
    the village certificate was not authenticated by other means requires remand.
    He asserts that the village certification was individualized evidence which
    showed that he had violated the family planning policy in his village and that
    the violation subjected him to mandatory sterilization. Xiao also argues that the
    BIA’s finding that the certificate was lacking a proper certificate of translation
    2
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    is not supported by the record and that the BIA failed to explain why the
    evidence is unreliable because it was obtained for the purpose of the proceedings.
    We have jurisdiction to review the denial of an untimely motion to reopen
    based on changed circumstances in the alien’s home country. Panjwani v.
    Gonzales, 
    401 F.3d 626
    , 632 (5th Cir. 2005). We review the denial of a motion
    to reopen “under a highly deferential abuse-of-discretion standard,” upholding
    the Board’s decision so long as it is not capricious, racially invidious, without
    foundation in the evidence, or otherwise so irrational that it is arbitrary rather
    than the result of any perceptible rational approach.         Manzano-Garcia v.
    Gonzales, 
    413 F.3d 462
    , 469 (5th Cir. 2005). Motions to reopen must be “filed
    within 90 days of the date of entry of a final administrative order of removal.”
    8 U.S.C. § 1229a(c)(7)(C)(i); 
    8 C.F.R. § 1003.2
    (c)(2). However, the filing periods
    are not applicable if the motion to reopen is “based on changed country
    conditions arising in the country of nationality or the country to which removal
    has been ordered, if such evidence is material and was not available and would
    not have been discovered or presented at the previous proceeding.”
    § 1229a(c)(7)(C)(ii); § 1003.2(c)(3)(ii); Zhao v. Gonzales, 
    404 F.3d 295
    , 304 (5th
    Cir. 2005).
    Section 287.6(b)(1) of Title 8 of the Code of Federal Regulations provides
    that a foreign record “shall be evidenced by an official publication thereof, or by
    a copy attested by an officer so authorized.” Xiao does not dispute that the
    village certificate was not so authenticated. He seeks to establish the reliability
    of the document by means of his own affidavit, in which he asserted that his
    mother obtained the village certificate upon inquiry at the local authority. This
    is not an assertion made upon his personal knowledge. According to the
    authority cited by Xiao, Chen v. Attorney General of U.S., ___ F.3d ___, 
    2011 WL 923353
     at * 4 (3d Cir. Mar. 18, 2011), the immigration judge and BIA properly
    discounted the village committee notice as unauthenticated, noting that a proper
    3
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    means of alternate authentication would be an affidavit from the petitioner’s
    mother as to how the document was obtained.
    The background evidence does not tend to support a finding that the
    village committee letter is authentic. As noted in Matter of H-L-H & Z-Y-Z, 25
    I & N Dec. 209, 214-15 (BIA 2010), according to the State Department’s 2007
    Profile, which contained an October 13, 2006 letter from the Fujian Province
    Population and Family Planning Commission, the Village Committees “are not
    authorized to make any decisions pertaining to family planning issues, and that
    a certificate issued by such a committee should be deemed ineffective.”
    Regarding Xiao’s argument that the certificate of translation was merely
    misplaced in the record and the BIA ignored it, assuming that is true, the lack
    of authentication is sufficient in itself to discount the document, even with a
    proper certificate of translation.
    The BIA did not abuse its discretion in determining that the village
    certificate was unreliable due to lack of authentication and because it was
    obtained for the purpose of these immigration proceedings. See Song Wang v.
    Keisler, 
    505 F.3d 615
    , 622-23 (7th Cir. 2007); Matter of H-L-H & Z-Y-Z, 25 I &
    N Dec. at 214-15. Thus, the BIA did not abuse its discretion in determining that
    the evidence failed to establish a prima facie case of eligibility for asylum. See
    In re S-Y-G, 
    24 I. & N. Dec. 247
    , 258-59 (BIA 2007), petition for review denied by
    Shao v. Mukasey, 
    546 F.3d 138
    , 168-69, 172-73 (2d Cir. 2008) (holding that the
    petitioner “had not adduced evidence that convincingly established a reasonable
    possibility that she would face enforcement amounting to persecution” and that
    “[b]ecause substantial evidence supports this determination, we identify no
    abuse of discretion in the denial of Show Yung Guo’s motion to reopen.”).
    Xiao argues that the village certificate was new and previously
    unavailable evidence of changed country conditions material to his claim that he
    fears persecution on account of his two U.S. born children. Because the BIA
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    found that Xiao had not demonstrated prima facie eligibility for asylum, it had
    no need to decide whether Xiao had also presented material evidence of changed
    country conditions. See Panjwani, 
    401 F.3d at
    632 n.7. We need not address
    Xiao’s argument regarding changed country conditions.
    Lastly, Xiao argues that the BIA failed to consider the 2008 and 2009
    Annual Reports from the Congressional-Executive Commission on China, which
    provided a more accurate account of conditions in China than the 2007 Profile.
    Xiao states that he cited these reports extensively, although he admits that they
    are not in the record. He contends that these reports are publicly available
    documents issued by the Government of which the BIA may take administrative
    notice.
    Even though the BIA may take administrative notice of such reports, Xiao
    points to no regulation or court decision that requires the BIA to do so. The BIA
    did not abuse its discretion in failing to indicate in its opinion whether or not it
    had considered these reports, and to the extent that it may have failed to
    consider them, in not taking administrative notice sua sponte of reports not in
    evidence. See 
    8 C.F.R. § 1003.1
    (d)(3)(iv) (providing that BIA may not engage in
    fact finding, but may take administrative notice of commonly known facts
    including current events or contents of official documents); Meghani v. INS, 
    236 F.3d 843
    , 848 (7th Cir. 2001) (explaining that the BIA is not required sua sponte
    to take administrative notice of new country reports).
    PETITION FOR REVIEW DENIED.
    5