Jin Zhang v. Attorney General United States , 604 F. App'x 95 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4504
_____________
JIN LONG ZHANG,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A078-712-730)
Immigration Judge: Donald V. Ferlise
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 27, 2014
Before: McKEE, Chief Judge, GREENAWAY, JR. and KRAUSE, Circuit Judges.
(Opinion filed: April 2, 2015)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
McKEE, Chief Judge.
Petitioner Jin Long Zhang filed a petition for review of the October 28, 2013 decision
of the Board of Immigration Appeals denying his motion to reopen as untimely. For the
reasons that follow, we will deny the petition for review.
I.
Zhang is a native and citizen of China who first entered the United States in 2000.
On January 9, 2001, Zhang was placed in removal proceedings and charged as an alien
unlawfully present in the United States under 8 U.S.C. § 1182(a)(6)(A)(i). On January 4,
2002, Immigration Judge Ferlise denied Zhang’s request for asylum, withholding of
removal, and relief under the CAT.1 This initial request was based on a claim of persecution
under China’s coercive population control policies. On September 16, 2003, the BIA
partially affirmed the decision of the Immigration Judge.2
In August 2013, Zhang filed a motion to reopen seeking to reapply for asylum,
withholding of removal, and CAT relief. The basis for this motion was a claim of changed
1
The Immigration Judge, Donald V. Ferlise, also found that Zhang filed a frivolous application for
asylum. (J.A. at 19.) As we note below, the BIA disagreed with that finding.
2
The BIA found that the Immigration Judge “correctly determined that [Zhang]’s asylum
application [was] time barred under the regulations and that none of the exceptions applie[d].”
(J.A. at 16.) However, the BIA also stated that it “d[id] not find [Zhang] filed a frivolous
application for asylum as stated by the Immigration Judge.” Id. This is not, by a long stretch, the
first time that the BIA or this Court has concluded that Judge Ferlise’s finding of a frivolous
petition was groundless. Nor is he any stranger to criticism from this Court. See Cham v. Att’y
Gen., 445 F.3d 683, 691–94 (3d Cir. 2006); Shah v. Att’y Gen., 446 F.3d 429, 434–37 (3d Cir.
2006); Sukwanputra v. Gonzales, 434 F.3d 627, 637–38 (3d Cir. 2006); Fiadjoe v. Att’y Gen., 411
F.3d 135, 154–58 (3d Cir. 2005). These cases are only some of the precedential opinions that have
criticized Ferlise. We need not also cite the not precedential opinions where we have been troubled
by his handling of cases before him or his proclivity for declaring that asylum claims are
“frivolous.”
2
country conditions in China and Zhang’s fear of persecution based on his being a practicing
Catholic. On October 28, 2013, the BIA denied the motion, declaring it untimely. This
petition for review followed.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252 to review the Board’s decision
denying the motion to reopen. Where the BIA issues a decision on the merits, we review
the BIA’s decision and not the Immigration Judge’s decision. Chavarria v. Gonzalez, 446
F.3d 508, 515 (3d Cir. 2006) (citing Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)).3
Where the BIA concludes that a petitioner has not made a prima facie showing for a
motion to reopen proceedings, we review the BIA’s findings of fact under the substantial
evidence standard. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Under the
substantial evidence standard, we must uphold the BIA’s factual findings “unless the
evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242
F.3d 477, 483–84 (3d Cir. 2001) (citation omitted). Although “adverse credibility
determinations cannot be based on speculation or conjecture, such a finding will be afforded
substantial deference” where the BIA provides “specific cogent reasons” grounded in the
3
However, to the extent that the BIA substantially relied on the Immigration Judge’s adverse
credibility determination, we have jurisdiction to review both opinions. Xie v. Ashcroft, 359 F.3d
239, 242 (3d Cir. 2004).
3
record to support those determinations. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d
Cir. 2003).4
We review the ultimate denial of a motion to reopen for abuse of discretion. Pllumi
v. Att’y Gen., 642 F.3d 155, 158 (3d Cir. 2011). The BIA abuses its discretion only where it
acts in a manner that is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447
F.3d 241, 251 (3d Cir. 2006) (quoting Sevoian, 290 F.3d at 174) (internal quotation marks
omitted).
III.
The BIA denied Zhang’s motion as untimely. A motion to reopen ordinarily must be
filed with the BIA “within 90 days of the date of entry of a final administrative order of
removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). However, an exception exists and the time
limitation does not apply where the motion to reopen is based on “changed country
conditions arising in the country of nationality . . . if such evidence is material and was not
available and would not have been discovered or presented at the previous proceeding.” 8
U.S.C. § 1229a(c)(7)(C)(ii). The question of whether there is sufficient evidence of
changed country conditions is a threshold issue. Shardar v. Att’y Gen., 503 F.3d 308, 312
(3d Cir. 2007). Accordingly, Zhang must produce evidence showing a change in country
conditions to show that the motion to reopen is timely and may be argued. Id. If this
threshold is established, we can then inquire into whether the evidence makes out a prima
facie case for asylum. Id.
4
“Adverse credibility determinations may be based on ‘inconsistent statements, contradictory
evidence, and inherently improbable testimony.’” Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.
2005) (quoting Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)).
4
In support of Zhang’s contention that changed country conditions justify his motion
to reopen, Zhang submitted the following for the BIA’s consideration:
 The U.S. State Department’s 2012 International Religious Freedom Report for
China (“Religious Freedom Report”);
 Recent news articles describing conditions in China for Christians and
Catholics from Voice of America, Fox News, and Gateway News;
 Letters from Zhang’s wife and a neighbor in China; and
 A certification describing Zhang’s history with the Fuzhou Catholic
Archdioceses of Fujian Province (“Fujian Province Certificate”).
As to the Religious Freedom Report, the BIA acknowledged Zhang’s evidence of
“detention of some leaders of underground, or ‘house,’ churches and harassment of church
members.” (J.A. at 11.) However, the BIA ultimately ruled against Zhang because it
concluded that he had not established that “the arrest of some leaders of underground
churches and harassment of church members demonstrates that he will likely suffer
mistreatment amounting to persecution upon his return to China based on his practice of
Christianity as a Catholic.” (J.A. at 11.)
The BIA was further not convinced by the letters from Zhang’s wife and neighbor
and the Fujian Province Certificate because they “[were] unsworn statements that
appear[ed] . . . created for the purpose of litigation and [were] from interested witnesses
who [were] not subject to cross-examination.” (J.A. at 12.) According to the BIA, the
documents were from persons “of essentially unknown reliability and, given [Zhang]’s
previous lack of candor, . . . they have [not] been shown to be of sufficient evidentiary
worth to support reopening these proceedings.” (J.A. at 12.)
5
Although we are not without some reservations, as we note below, the BIA’s factual
findings are entitled to substantial deference. Accordingly, we agree that the motion to
reopen was correctly denied.
We have stated that substantial reliance on State Department reports is justified and
that such reports are sometimes the best resource for determining country conditions.
Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003) (citing Lal v. INS, 255 F.3d 998,
1023 (9th Cir. 2001)). However, we find the BIA’s analysis of the Religious Freedom
Report troublesome, as portions of the report that seem to indicate changed country
conditions appear not to have been considered by the BIA. For instance, the BIA failed to
address a portion of the Religious Freedom Report that indicates that religious adherents
have been “harassed, detained, arrested, or sentenced to prison . . . for activities . . . related
to their religious beliefs and practice.” (A.R. 268–69.) This statement, among others,
appears to directly relate to and support Zhang’s claim of changed country conditions in
China.
However, the failure to specifically cite this portion and other pertinent portions of
the Religious Freedom Report does not amount to an abuse of discretion. “The BIA must
consider the evidence presented to it, but it need not expressly parse each piece of evidence
submitted in its opinion.” Zhao v. Att’y Gen., 386 F. App’x 37, 39 (3d Cir. 2010). This case
is similar to Kayembe. There, the petitioner claimed that the BIA “failed to consider the
record as a whole.” Kayembe, 334 F.3d at 235. While the BIA cited portions of the country
report, the report contained additional data indicative of changed country conditions that
was not considered by the BIA. Id. Nevertheless, in Kayembe, we explained that “[j]ust
6
because the State Department report cuts both ways [ ] does not mean that it does not
constitute substantial evidence.” Id. at 236. While the additional information provided in
the Religious Freedom Report does appear to support a contrary conclusion, it does not
compel a contrary conclusion as it must if Zhang is to prevail under the substantial evidence
standard.
The analysis the BIA engaged in to discredit the letters and the Fujian Province
Certificate is also troublesome. As previously noted, the BIA referenced Zhang’s “previous
lack of candor” in determining the evidentiary worth of these letters and the Fujian Province
Certificate. (J.A. at 12.) However, we have held that reliance on prior adverse credibility
determinations is improper where “the basis for the [ ] credibility assessment [is] utterly
unrelated to [the] later claim.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004); cf. Lin v.
Att’y Gen., 700 F.3d 683, 688 n.3 (3d Cir. 2012) (permitting reliance on prior adverse
credibility determinations where the motion to reopen is based “on the same underlying
basis for asylum”). As Zhang’s initial basis for asylum (China’s family planning policy) is
unrelated to the basis for the motion to reopen (religious persecution), such previous adverse
credibility determinations were improperly considered. Nevertheless, consideration of the
evidence without reference to any previous lack of candor on the part of Zhang still does not
compel a contrary conclusion as to the worth of the evidence determined by the BIA.
The BIA also did not consider the news articles provided by Zhang which
demonstrate the worsening conditions for Catholics in China. The BIA must “meaningfully
consider[ ] the evidence and arguments [the alien] present[s].” Zhu v. Att’y Gen., 744 F.3d
268, 272 (3d Cir. 2014) (citing Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir. 2008)).
7
“This does not mean that the BIA is required to expressly parse each point or discuss each
piece of evidence presented, but it may not ignore evidence favorable to the alien.” Id.
(quoting Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010)) (internal quotations and
citation omitted).
The news articles provided undoubtedly support Zhang’s argument that the
conditions in China have changed such that a practicing Catholic would fear persecution.5
However, the BIA did not appear to consider these news articles at all, and, if they were
considered, there was no explanation provided for why they were rejected. This lack of
consideration and failure to explain why certain evidence was rejected has previously been
grounds for remanding to the BIA to consider such evidence and determine its authenticity,
relevance, and weight. Zhu, 744 F.3d at 275. However, this lack of consideration is not
grounds for remand here.
Despite the reservations we have expressed, in the final analysis, it is clear that the
BIA did not abuse its discretion in denying Zhang’s request to reopen. In doing so, the BIA
quite properly noted inconsistencies in Zhang’s statements that caused it to appropriately
question Zhang’s assertion that he is a practicing Catholic. The BIA explained: “[h]e asserts
that he has been a practicing Catholic for almost 30 years, both in China and in the United
States, but in his asylum application filed in 2000, [Zhang] claimed that he was not a
5
As noted in Zhang’s brief, the Voice of America article dated April 22, 2013 indicated “that the
situation for religious freedom in China continues to worsen.” The Fox News article dated
February 21, 2013 states that “there have been new tactics of persecution . . . to eradicate house
churches.” The Gateway News article dated March 7, 2013 indicates that “China’s crackdown
against its thriving home church movement is surging.”
8
member of any religion.” (J.A. at 10.) The BIA also noted that “his household registration
booklet has a blank space for his religion.” Id. These inconsistencies seriously undermine
Zhang’s claim of abuse of discretion and support the BIA’s denial of the motion to reopen.
For any findings of changed country conditions to be material, the BIA had to find that
Zhang is a practicing Catholic, as he claims. If Zhang is not a practicing Catholic and does
not follow the Christian faith, whether or not circumstances have changed in China for
practicing Christians has no bearing on his claim of asylum based on religious persecution.
While the inconsistencies relating to Zhang’s faith do not appear to be the BIA’s
principal reason for denial of the motion to reopen, they are, by themselves, sufficient to
defeat his claim of an abuse of discretion in refusing to reopen his claim for asylum.
IV.
For the reasons set forth above, we agree that Zhang has not shown that his untimely
motion to reopen should be considered because of changed country conditions and we
conclude that the BIA did not abuse its discretion in concluding that the attempt to reopen
was untimely under 8 U.S.C. § 1229a(c)(7)(C).
9