Zheng v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-26-2008
Zheng v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-3122
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3122
JIAN ZHAU ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Decision and Order of the
Board of Immigration Appeals
(BIA No. A70-838-800)
Immigration Judge: William Strasser
No. 07-3199
ZHI YONG CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Decision and Order of the
Board of Immigration Appeals
(BIA No. A77-340-635)
Immigration Judge: Donald Ferlise
Argued October 27, 2008
BEFORE: SLOVITER and GREENBERG, Circuit Judges,
and IRENAS, District Judge*
(Filed: November 26, 2008)
Gary J. Yerman (argued)
*Hon. Joseph Irenas, Senior Judge of the United States District
2
Court for the District of New Jersey, sitting by designation.
Yerman & Associates
401 Broadway
Suite 1210
New York, NY 10013-0000
Attorneys for Petitioner in No. 07-3122
Jeffrey S. Bucholtz
Acting Assistant Attorney General
Civil Division
Michael P. Lindermann
Richard M. Evans
Ethan B. Kanter (argued)
Senior Litigation Counsel
Ben Franklin Station
Washington, DC 20044-0000
Michael P. Lindemann
Assistant Director
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Attorneys for Respondent in No. 07-3122
Gary J. Yerman (argued)
Yerman & Associates
401 Broadway
Suite 1210
3
New York, NY 10013-0000
Attorneys for Petitioner in No. 07-3199
Jeffrey S. Bucholtz
Acting Assistant Attorney General
Civil Division
Carol Federight
Senior Litigation Counsel
Office of Immigration Litigation
M. Jocelyn Lopez-Wright
United States Department of Justice
Office of Immigration Litigation
Suite 700S
1331 Pennsylvania Avenue, N.W.
Washington, DC 20530-0000
Eric W. Marstellar (argued)
Paul F. Stone
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Attorneys for Respondent in No. 07-3199
OPINION OF THE COURT
4
GREENBERG, Circuit Judge.
I. INTRODUCTION
These two matters come on before this Court on separate
petitions for review of decisions and orders of the Board of
Immigration Appeals (“BIA”) brought by Jian Zhau Zheng and
Zhi Yong Chen. Both petitioners are citizens of the People’s
Republic of China from Fujian Province who currently reside in
the United States, and each is married with more than one child
born in this country. In both cases the BIA rejected the
petitioner’s appeal from an immigration judge’s denial of his
application for asylum, following which each petitioner filed an
unsuccessful motion with the BIA to reopen his removal
proceedings.1 These petitions for review of the denial of the
motions for reopening followed. Significantly, each petitioner
based his motion on allegations that there had been changed
circumstances in China from those extant at the time of the
denial of his application for asylum.
Inasmuch as the two cases concern similar questions of
law and of fact and reach this Court following almost parallel
procedural paths, we will address both petitioners’ petitions in
this consolidated opinion. For the reasons that we will discuss,
we will vacate the BIA’s denial of the petitioners’ respective
motions to reopen and remand the matters to the BIA for further
proceedings. In doing so, however, we make clear that we do
1
Zheng filed an earlier motion to reopen that we discuss
below.
5
not suggest that we disagree with the results the BIA reached on
the records before it as we predicate our holding solely on
procedural deficiencies that we find existed in the BIA
proceedings.
II. BACKGROUND
A. Zheng
Zheng arrived in the United States on August 27, 1993.
He married in New York on January 23, 1998, and he and his
wife have three children, the first born on January 29, 1998, the
second born on January 4, 1999, and the third born on June 21,
2000. On August 27, 1993, Zheng, who was represented by an
attorney other than his attorney on this appeal, sought asylum.
An immigration judge conducted a hearing on his application on
March 10, 1997, but, based on Zheng’s failure to appear at the
hearing, denied his request for asylum and ordered his exclusion
in absentia. Zheng asserts that he did not appear because his
attorney did not inform him of the hearing date.2 Moreover, he
claims that he did not learn of the denial of his request for
2
Respondent contends that Zheng failed to appear at the
hearing “despite efforts to contact [him] and notify him of the
obligation to attend.” Br. at 4. We make no determination on
the question of why Zheng did not appear for the hearing, but
will assume without deciding that he did not appear because his
attorney did not advise him of the need to do so.
6
asylum until September 1997, when an application for renewal
of his employment authorization was denied. Zheng appealed
from the denial of asylum, but on December 18, 1997, the BIA
denied the appeal as untimely.
On June 27, 2002, Zheng filed a motion with the BIA to
reopen his case on the basis of his changed personal
circumstances, namely, the birth of his three children in the
United States. He claimed that “[u]nder the current recognized
climate of coercive population control” in China if he returned
to China he would be persecuted for having more than one child.
App. at 177. He did not claim, however, that there had been a
material change in circumstances in China with respect to
population control between the time that he filed his asylum
application and the time of his motion to reopen. On October 9,
2002, the BIA denied his motion to reopen and inasmuch as
Zheng did not file a petition for review of that denial, no court
of appeals has reviewed that denial and we, of course, do not
review it now.
On August 18, 2006, Zheng filed a second motion to
reopen his case, contending that he should be granted asylum
because of changed circumstances in China by reason of its
enhanced enforcement of its population control policies as
compared to those at the time that the immigration judge and
BIA denied his asylum application. Moreover, he argued that
his counsel had been ineffective during his original asylum
proceedings that an immigration judge had dismissed because of
his failure to appear for his hearing. Zheng submitted several
documents in support of his motion as evidence of those
changed circumstances and filed a personal affidavit which
7
stated:
In my recent phone contacts with my family and
friends in China, I was told that in the past year,
the government had increased the use of labor
camp, forced abortions and sterilizations. I was
also told that a couple is only allowed to have one
child. Those who resist and violate the new law
would not only be forced to undergo abortion
operations or sterilization procedures, but also
face criminal prosecution pursuant to the
Population and Family Planning Law. What I
heard is consistent with the 2005 County [sic]
Report on China by the [State Department].
Id. at 55. Zheng further stated in his affidavit:
Such persecutions have done irreparable damage[]
to many families of young couples. My neighbor
Zhou Zheng is an example. [He] and his wife
Lin, Hui ha[d] their first daughter several years
ago, . . . and [] secretly gave birth to their second
daughter. Unfortunately, the government family
planning officials found out and forced Zhou
Zheng to undergo sterilization immediately on
04/10/2006. My neighbor Zheng, Qun is another
victim. After his wife gave birth to [a boy and a
girl] . . . , on Feb[.] 28, 2006, Zheng, Qun was
forcibly sterilized by the family planning officials.
Id. at 55-56. Zheng also stated:
8
I requested my parents to inquire with the
villager’s committee in my hometown. My
parents told me that the village officials were
already aware that I had two children in the
United States. An official letter issued by the
villager committee in response to my inquiry
stated that I was still considered [] a citizen of
China and had to undergo necessary family
planning procedures with[in] one week once I
return[] to China . . . .
Id. at 56. Zheng also submitted what purports to be a letter from
Changle City Shouzhan Town People’s Government Family
Planning Office (“Changle City letter”) dated June 9, 2006,
which states: “[a]lthough you are currently residing in the
United States, you are still a citizen of the People’s Republic of
China who had three children, and therefore you will definitely
be targeted to [sic] sterilization.” Id. at 72.
In addition to his affidavit and the Changle City letter,
Zheng submitted several documents describing what he claims
are changed circumstances in China. These documents include:
(1) two reports by the State Department entitled “China –
Country Reports on Human Rights Practices” (“Country
Report”) for 2004 and 2005 (issued in 2005 and 2006
respectively); (2) a State Department document entitled
“Consular Information Sheet – China” (“Consular Information
Sheet”) dated May 29, 2003; (3) a report entitled
“Congressional-Executive Commission on China – Annual
Report” (“Commission Report”) for 2005; (4) testimony by John
Aird to Congress concerning China’s family planning law from
9
September 23, 2002; (5) testimony by Harry Wu to Congress on
December 14, 2004; (6) a document entitled “Population and
Family Planning Regulation of Fujian Province” (“Fujian
Regulation”) dated July 26, 2002; and (7) two newspaper
articles from 2005. Inasmuch as these documents did not exist
when he filed his original petition to reopen, he could not
present any of them with that motion.
On June 21, 2007, the BIA denied Zheng’s second
motion to reopen his case, and on July 16, 2007, Zheng filed the
petition now before us to review the BIA’s June 21, 2007
decision and order.
B. Chen
Chen arrived in the United States on January 31, 2001,
and was married in Pennsylvania on May 18, 2001. Chen and
his wife have two children, the first born on June 24, 2002, and
the second born on November 22, 2003. Chen sought asylum
but on June 10, 2003, an immigration judge denied his
application for asylum and ordered his removal. Chen appealed,
but on July 19, 2004, the BIA affirmed the denial.
On March 9, 2007, Chen filed a motion to reopen his case
based on changed circumstances in China. Chen submitted
several documents in support of his motion to reopen, including
a personal affidavit in which he stated:
[T]he birth of our children has made my return
home more risky and dangerous. In my recent
phone contacts with my famil[y] and friends in
10
China, I was told that in the past year, the
government has increased the use of forced
abortions and sterilization. Those who resist and
violate the new law would not only be forced to
undergo abortion operations or sterilization
procedures, but also face criminal prosecution
pursuant to the Population and Family Planning
Law (PFPL).
Id. at 35. He also stated in his affidavit:
My mother related to me several such tragic
incidents [that] happened in my hometown. Mr.
Gang Zheng and his wife Ms. Hua Qin have two
daughters. They wanted a son very much.
Unfortunately, on March 3, 2006, the wife Ms.
Hua Qin was forced into a sterilization to prevent
them from having more children in the future.
The same tragedy also happened to Mr. Jianping
Lin and his wife. They also have two daughters
and wanted a son. However, Mr. Lin’s wife was
forcibly sterilized in April 2006.
Id. at 36. The affidavit continued:
My parents told me that the village officials were
already aware that I had two children in the
United States. They also told me that since I do
not have legal status in the United States, I was
still considered [] a citizen of China[,] not an
overseas Chinese[;] therefore once I return[] to
11
China, I ha[ve] to undergo necessary family
planning procedures, such as abortions and
sterilizations, unless I become an U.S. citizen,
permanent resident or obtain[] Master or
Doctorate degrees in the United States.
Id.
In addition to his affidavit, Chen submitted a letter from
his mother, in which she stated:
Recently the Chinese government has
strengthened the enforcement of the Population
and Family Planning Law (PFPL). During the
past year, there were a lot of enforced abortions
and sterilizations in our hometown. The situation
is much worse than before. For example, a
resident in our village named Gamg Zheng has
two daughters. He wanted to have a son.
However, his wife, Hua Qin, was forced to
undergo an involuntary sterilization on March 3,
2006. Secondly, there is a couple in our village,
Mr. and Mrs. Jianping Chen. They have two
daughters and also wanted a son. Unfortunately,
Mr. Chen was sterilized in April, 2006. Based on
the above incidents, if my son were sent back to
Mainland China, he would also be involuntarily
sterilized and would not have more children in the
future because he has already had two sons.
Id. at 65-66.
12
In addition to the affidavit and letter, Chen submitted
other documents to demonstrate changed circumstances in China
since the time of his original application for asylum. Several
documents are the same as ones that Zheng submitted in support
of his motion, including: (1) the State Department’s 2004 and
2005 Country Reports; (2) the Consular Information Sheet dated
May 29, 2003; (3) the Congressional Executive Commission
Report for 2005; (4) Aird’s September 23, 2002 testimony to
Congress; (5) Wu’s December 14, 2004 testimony to Congress;
and (6) the same two newspaper articles from 2005. But Chen
also included documents not included with Zheng’s motion: (1)
a document by the Administrative Office of the National
Population and Family Planning Committee, dated March 14,
2006; (2) a document that Chen describes as the “Changle City
Family Planning Q & A Handbook”; and (3) the Congressional
Executive Commission Report for 2006.
On June 29, 2007, the BIA denied Chen’s motion to
reopen his case and on July 23, 2007, Chen filed the petition
now before us to review the BIA’s decision and order.
III. JURISDICTION AND STANDARD OF REVIEW
Zheng and Chen correctly assert that the BIA had
jurisdiction under 8 C.F.R. § 1003.2(c). We have jurisdiction
over the present petitions for review pursuant to 8 U.S.C. §
13
1252.3 We review the denial of a motion to reopen for abuse of
3
We have not overlooked respondent’s contention that the
proceedings on Zheng’s original motion to reopen deprive us of
jurisdiction to entertain his petition for review of the denial of
his second motion to reopen. In considering the respondent’s
jurisdictional contention we recognize that in the light of 8
C.F.R. § 1003.2(c)(1) and (2), which we discuss below, if a
petitioner did not file a petition for review from a denial of a
motion to reopen, it reasonably could be argued that the BIA
would be justified on a second motion to reopen in precluding
him from advancing evidence that was available or could have
been discovered for use at the prior proceedings but was not
presented. But even if that is true, we see no basis to hold that
if a petitioner brings a second motion to reopen his failure to
present evidence on a prior motion should deprive a court of
appeals of the jurisdiction that it otherwise would have to
entertain a petition for review from a denial of the second
motion. In this regard we point out that respondent does not
direct our attention to any statute or regulation that explicitly
deprives us of jurisdiction that we otherwise would have in this
situation, and we are aware of none, though we recognize that
Congress intended that ordinarily an alien could bring only one
motion to reopen.
In fact the respondent indicates in his brief that “[w]ith
limited exceptions, one of which is here at issue, an alien may
file only one motion to reopen and must file that motion within
ninety days of the date on which the final administrative
decision was rendered,” citing 8 C.F.R. § 1003.2(c)(2). Br. at
14
discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).
We will not disturb the BIA’s decisions “unless they are found
to be arbitrary, irrational, or contrary to law.” Id. (internal
citations and quotation marks omitted).
14 (emphasis added). Moreover, 8 C.F.R. § 1003.2(c)(3)
provides that the time and numerical limitations otherwise
applicable do not “apply to a motion to reopen proceedings [t]o
apply or reapply for asylum or withholding of deportation based
on changed circumstances arising in the country of nationality
or in the country to which deportation has been ordered, if such
evidence is material and was not available and could not have
been discovered or presented at the previous hearing.”
This regulation with respect to newly available evidence
describes the situation here inasmuch as none of the eight
documents that Zheng submitted that we listed above existed on
June 27, 2002, when he filed his first motion to reopen.
Furthermore, while certain of these documents did exist on
October 9, 2002, when the BIA denied Zheng’s first motion to
reopen, it is not clear to us that even those documents could
have been presented on the earlier motion to reopen. We also
point out that the BIA’s October 9, 2002 decision and order did
not cite any of the eight documents, an understandable omission
inasmuch as all eight relate to conditions in China whereas the
BIA regarded Zheng’s motion as being “based on a change in
his personal circumstances, the birth of three children after the
Board’s adverse decision was rendered.” App. at 169.
15
IV. DISCUSSION
The general criteria governing motions to reopen set forth
in 8 C.F.R. § 1003.2(c)(1) provide that:
A motion to reopen proceedings shall state the
new facts that will be proven at a hearing to be
held if the motion is granted and shall be
supported by affidavits or other evidentiary
material. A motion to reopen proceedings for the
purpose of submitting an application for relief
must be accompanied by the appropriate
application for relief and all supporting
documentation. A motion to reopen proceedings
shall not be granted unless it appears to the Board
that evidence sought to be offered is material and
was not available and could not have been
discovered or presented at the former hearing . . .
.
Although a motion to reopen “must be filed no later than 90
days after the date on which the final administrative decision
was rendered in the proceeding sought to be reopened,” 8 C.F.R.
§ 1003.2(c)(2), the 90-day limitation does not apply if the
movant seeks reopening “based on changed circumstances
arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and
was not available and could not have been discovered or
presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
16
The Supreme Court has set forth three bases on which the
BIA can deny a motion to reopen:
First, it may hold that the movant has failed to
establish a prima facie case for the relief sought .
. . . Second, it may hold that the movant has
failed to introduce previously unavailable,
material evidence that justifies reopening, as
required by regulation. Third, in ‘cases in which
the ultimate grant of relief [being sought] is
discretionary (asylum, suspension of deportation,
and adjustment of status, but not withholding of
deportation),’ the Board can ‘leap ahead . . . over
the two threshold concerns (prima facie case and
new evidence/reasonable explanation) and simply
determine that even if they were met, the movant
would not be entitled to the discretionary grant of
relief.’
Sevoian v. Ashcroft, 290 F.3d 166, 169-70 (3d Cir. 2002)
(quoting INS v. Abudu, 485 U.S. 94, 105, 108 S. Ct. 904, 912
(1988)) (internal citations omitted). But regardless of which of
these multiple bases for denying a motion to reopen that the BIA
is examining, when considering a motion to reopen the BIA
“must actually consider the evidence and argument that a party
presents.” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.
2001) (internal quotation marks omitted). If the BIA rejects the
motion to reopen, on an ensuing petition for review a court will
uphold that determination if it is “supported by reasonable,
substantial, and probative evidence on the record considered as
a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct.
17
812, 815 (1992) (internal quotation marks omitted).
To qualify for asylum or withholding of removal, an
applicant must establish that he has a well-founded fear that he
will be persecuted if removed to his home country on account of
race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b),
1231(b)(3). “[A] person who has a well founded fear that he or
she will be forced to [abort a pregnancy or undergo involuntary
sterilization] or [is] subject to persecution for [failure, refusal,
or resistance to undergo such a procedure] shall be deemed to
have a well founded fear of persecution on account of political
opinion.” 8 U.S.C. § 1101(a)(42)(B).
An applicant bears the burden of proving eligibility for
asylum based on specific facts and credible testimony. 8 C.F.R.
§ 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.
2001). To demonstrate that he has a well-founded fear of
persecution, an applicant must satisfy three requirements: (1) he
or she has a fear of persecution in his or her native country; (2)
there is a reasonable likelihood that he or she will be persecuted
upon return to that country; and (3) the applicant is unable or
unwilling to return to that country as a result of his or her fear.
8 C.F.R. § 208.13(b)(2)(i). The eligibility threshold for
obtaining withholding of removal is higher than that for
obtaining asylum as the Attorney General must determine that
repatriation would threaten the alien’s life or freedom on
account of one of the protected grounds to withhold removal.
8 U.S.C. § 1231(b)(3). An applicant for withholding of removal
therefore must demonstrate a “clear probability” of persecution
if he is removed. Senathirajah v. INS, 157 F.3d 210, 215 (3d
18
Cir. 1998) (internal quotation marks omitted).
A. Zheng
1. Changed circumstances
Zheng filed his original motion to reopen on June 27,
2002, but the BIA denied that motion as untimely on October 9,
2002, and, as we indicated above, we do not review that denial.
Zheng filed his second motion to reopen, the denial of which has
led to these proceedings, on August 18, 2006. Although Zheng
argued in his second motion to reopen that there had been
changed circumstances in China from the time that he sought
asylum that warranted exception from the 90-day limitation
pursuant to 8 C.F.R. § 1003.2(c)(3)(ii), the BIA concluded that
“the pending motion does not fall within [that] time limit
exception.” App. at 3. In these proceedings Zheng primarily
argues that the BIA abused its discretion in reaching that
conclusion, and we therefore begin our analysis of his case by
reviewing that aspect of its decision.
In that decision, the BIA stated that “[w]e again find,
after considering the arguments and evidence submitted by the
applicant, that the birth of the appellant’s three children in the
United States and his marriage do not constitute a change in
circumstances arising in the country of nationality which would
create an exception to the time and numerical limitations for
filing a motion to reopen.” Id. at 3. In its decision the BIA
discussed Matter of J-W-S-, 24 I & N Dec. 185 (BIA 2007),
review denied, Shao v. Mukasey, No. 07-2689, F.3d , 2008
WL 4531571 (2d Cir. Oct. 10, 2008). In particular, the BIA
19
focused on J-W-S-’s review of three documents submitted as
evidence in that case: (1) affidavits by Aird;4 (2) the State
Department’s Country Report for 2006; and (3) a report by the
State Department entitled “China: Profile of Asylum Claims
and Country Conditions,” dated May 2007. Id. The BIA quoted
J-W-S-’s discussion of those reports, and observed that in J-W-
S- the BIA “concluded, based on the 2007 Profile, that children
born overseas are not counted for birth planning purposes when
the parents return to China.” Id. The BIA further quoted J-W-
S- in stating that “if a returnee who has had a second child while
outside of China is penalized at all upon return, the sanctions
would be fines or other economic penalties.” Id. (internal
quotation marks omitted).
In our analysis we initially note that although the birth of
Zheng’s three children after the denial of his asylum application
obviously is a significant factor in this case as the possibility
that he might suffer persecution arises from it, the BIA’s
characterization of Zheng’s motion to reopen as being based on
those births rather than changed circumstances in China is
inaccurate. Indeed, in Zheng’s brief to the BIA in support of the
motion, he argued that “[t]hese proceedings should be reopened
as the evidence in support of [the] motion was unavailable at the
time of the original hearing, and the evidence documents
conditions in China which have arisen since that date.” Id. at
12. Therefore we will discuss whether the BIA abused its
4
We have rejected Aird’s position, see Yu v. Attorney
General, 513 F.3d 346, 348-49 (3d Cir. 2008), as has the BIA,
see In re C-C, 23 I. & N. Dec. 899, 901 (BIA 2006).
20
discretion in concluding that Zheng failed to meet his burden to
demonstrate changed circumstances in China.
In Li v. Attorney General, 488 F.3d 1371 (11th Cir.
2007), the Court of Appeals for the Eleventh Circuit reviewed
the BIA’s denial of a motion to reopen an asylum case. The
petitioner had submitted several of the documents that Zheng
and Chen have submitted in these cases. In particular, the
petitioner in Li offered as evidence the State Department’s
Country Reports for 2004 and 2005, the 2005 Commission
Report, and Aird’s testimony to Congress in 2002. Id. at 1373.
The petitioner in Li also submitted her affidavit and that of her
mother, the State Department’s Country Report for 2003, the
Consular Information Sheet for 2005, and two unidentified
newspaper articles from 2005. Id.
In reviewing the BIA’s denial of the motion to reopen the
court in Li discussed various statements contained in the
affidavits describing examples of forcible sterilization from the
petitioner’s hometown. See id. at 1375. The court observed that
the petitioner’s “other evidence corroborated her anecdotal
evidence of a change in policy in her province and substantiated
her fear that local officials in Fujian have the incentives and
discretion to sterilize women with more than one child.” Id. In
particular, the court referred to statements contained in the State
Department’s 2005 Country Report. The court concluded that
“Li’s evidence of a recent campaign of forced sterilization in her
home village, evidence consistent with the conclusion of recent
government reports, clearly satisfied the criteria for a motion to
reopen her removal proceedings.” Id. Contrary to the BIA’s
findings in Li as well as in Zheng’s case, the court stated that
21
“the [C]onsular [I]nformation [S]heet established that, for some
purposes at least, the Chinese government considers foreign-
born children of Chinese nationals equivalent to children born
in China.” 5 Id. at 1376.
We recognize that, as the Court of Appeals for the
Second Circuit explained in Wang v. BIA, 437 F.3d 270 (2d Cir.
2006), there is an inherent tension in the criteria setting forth the
standards for the review of BIA decisions that lack detailed
discussion:
On the one hand, the BIA abuses its discretion if
it fails completely to address evidence of changed
country circumstances offered by a petitioner. . .
. The BIA should demonstrate that it has
considered such evidence, even if only to dismiss
it. In so doing, the BIA should provide us with
more than cursory, summary or conclusory
statements, so that we are able to discern its
reasons for declining to afford relief to a
petitioner.
5
Although Zheng submitted the Consular Information Sheet
for 2003 rather than 2005, the 2003 version contains statements
to the same effect. See App. at 90 (“If one or both parents of a
child are PRC nationals who have not permanently settled in
another country, then China regards the child as a PRC national
and does not recognize any other citizenship the child may
acquire at birth, including U.S. citizenship.”).
22
On the other hand, we do not hold . . . that where
the BIA has given reasoned consideration to the
petition, and made adequate findings, it must
expressly parse or refute on the record each
individual argument or piece of evidence offered
by the petitioner. . . . While the BIA must
consider such evidence, it may do so in summary
fashion without a reviewing court presuming that
it has abused its discretion.
Id. at 275 (internal citations and quotation marks omitted).
Notwithstanding this tension “[immigration judges] and the BIA
have a duty to explicitly consider any country conditions
evidence submitted by an applicant that materially bears on his
claim,” and “[a] similar, if not greater, duty arises in the context
of motions to reopen based on changed country conditions.”
Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006) (internal
quotation marks omitted); see also Yang v. Gonzales, 427 F.3d
1117, 1122 (8th Cir. 2005) (“If an agency makes a finding of
fact without mentioning or analyzing significant evidence, its
decision should be reconsidered.”) (internal quotation marks
omitted).
In Zheng’s case the BIA did little more than quote
passages from its earlier decision in J-W-S- without identifying
– let alone discussing – the various statements contained in the
record before it that Zheng submitted in support of his motion
to reopen. Indeed, the BIA did not mention Zheng’s affidavit,
the Changle City letter, the Consular Information Sheet from
2003, the Commission Report for 2005, the Fujian Regulation
from 2002, Wu’s testimony to Congress from 2004, or the two
23
newspaper articles. Moreover, these documents were not
discussed in J-W-S-, the case on which the BIA almost
exclusively relied. See J-W-S-, 24 I & N Dec. at 189-94. Given
the BIA’s failure to discuss most of the evidentiary record in
Zheng’s case, as well as the conclusions that the Court of
Appeals for the Eleventh Circuit reached in Li concerning at
least some of the documents in this case, we will vacate the
BIA’s denial of Zheng’s second motion to reopen his case and
remand the matter to the BIA for further proceedings.6
6
We note that the court in Wang affirmed the BIA’s denial of
the petitioner’s motion to reopen the case, even though the
BIA’s decision was not more detailed than the analysis of the
BIA in Zheng’s case. See 437 F.3d at 275. Zheng, however,
submitted documents that were not submitted in Wang, as well
as a personal affidavit, and, that given the more extensive record
in this case, we find the BIA’s cursory discussion of the record
to be an abuse of discretion.
We also note that after the parties filed their briefs on this
petition the Court of Appeals for the Seventh Circuit decided
Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008), a case that Zheng
has brought to our attention in a letter pursuant to Fed. R. App.
P. 28(j). Lin discussed the 2006 Country Report for China
issued in 2007. That report, however, is not part of the record
in Zheng’s case. Undoubtedly Lin could be helpful to Zheng
and he might bring that case to the BIA’s attention on the
remand and seek to supplement the record on the remand to
include the 2006 Country Report. On the other hand, we are
aware that the BIA discussed J-W-S- in its decision on Zheng’s
24
2. Equitable tolling
Zheng contends that the time limitations on filing a
second motion to reopen should be equitably tolled in his case
because his attorney did not inform him of the hearing date on
his asylum application and it was that failure that led to the
dismissal of the application on March 10, 1997. Furthermore,
the appeal that the same attorney filed from the denial of the
application to the BIA was untimely, a shortcoming that led the
BIA to deny the appeal on December 18, 1997. It might be
thought that inasmuch as we are remanding this case to the BIA
without regard for tolling of the limitations period that Zheng’s
equitable tolling contention is moot. We are satisfied, however,
that the tolling question is not moot because if Zheng prevails on
the tolling point he ultimately might obtain a reopening and be
granted asylum without showing changed circumstances in
China in accordance with 8 C.F.R. § 1003.2(c)(1), (3)(ii).
Therefore we consider the equitable tolling argument on the
merits.
The BIA rejected the equitable tolling contention because
it held that Zheng’s lack of diligence in pursuing his asylum
claim demonstrated that tolling was not justified. See Mahmood
v. Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005). We agree
with the BIA. In this regard we point out that Zheng
acknowledges that he found out in September 1997 that his
motion and the 2006 Country Report was in evidence in J-W-S-,
so that it is possible that the BIA will give the 2006 Country
Report little weight.
25
attorney had not advised him of the hearing date on his asylum
application and also discovered at that time that his failure to
appear at the hearing led the immigration judge to deny his
application for asylum. Then the BIA denied his appeal from
the dismissal of his asylum claim because it was untimely on
December 18, 1997. Yet Zheng did not file his original motion
to reopen until June 17, 2002, a delay that demonstrates that he
was not diligent in pursuing his asylum claim. His lack of
diligence cannot be gainsaid because he had known for over
four years when he first sought to reopen the proceedings that
his asylum application had been denied by reason of his failure
to appear for his hearing.
Furthermore, when he filed his first motion to reopen he
did not assert that his attorney at the time of the asylum
application had been ineffective, even though he was being
represented by an attorney who had not represented him when
he filed his unsuccessful asylum application. Rather, he based
his motion solely on his claim that “there ha[d] been a
significant change in circumstances” predicated on the birth of
his three children after the immigration judge denied his asylum
application on March 10, 1997. App. at 177. Moreover, his
attorney on his first motion to reopen, on information and belief
asserted, contrary to what actually had happened, that Zheng had
appeared at the hearing on March 10, 1997, and that his appeal
to the BIA was timely. The totality of the circumstances makes
it clear that Zheng was not diligent in pursuing his asylum
application and we accordingly reject his equitable tolling
contention. We do not understand how we could come to any
other result, for the history of his case demonstrates that the type
of exceptional circumstances justifying equitable tolling are not
26
present here. See Hedges v. United States, 404 F.3d 744, 751
(3d Cir. 2005).
B. Chen
The BIA also denied Chen’s motion to reopen his case.
Although the BIA began by characterizing Chen’s claim as one
based on changed personal circumstances rather than changed
circumstances in China, it nevertheless discussed the latter
question. According to the BIA:
[T]he evidence reflects conditions substantially
similar to those that existed at the time of his
hearing, with the government officially
prohibiting the use of force to compel persons to
submit to abortion or sterilization, despite some
reports of coercion by local authorities, and
generally attempting to enforce compliance with
the one-child policy through the use of economic
incentives and sanctions and other administrative
measures. The recent evidence submitted
generally confirms a continuation of problems
that previously existed.
Like our recent decision in [J-W-S-], [Chen] has
not provided sufficient evidence that any
sanctions [he] may experience if he returns to
China would rise to the level of persecution. The
mere existence of a policy under the local
regulations of sterilization if a couple has two
children does not demonstrate that such policy
27
would be enforced in Fujian Province by physical
coercion, and there is no current evidence that
couples returning with two United States citizen
children would be sterilized. The policies existed
at the time of [Chen’s] hearing, and reports of
some recent instances of coercion are no different
from such reports at the time of the hearing
below. [Chen’s] reliance on 2006 statements
from the National Population and Family
Planning Committee and the Fujian [P]rovince do
not show that Fujian Province will forcibly
sterilize [Chen] in violation of official policy if he
is returned to China. Thus, we do not find that the
evidence presented by [Chen] reflects a material
‘change’ such that the time limitation does not
apply to the present motion.
App. at 3 (internal citations omitted).
The above passage represents the BIA’s entire discussion
of the question whether Chen satisfied his burden to
demonstrate changed circumstances in China. As in Zheng’s
case, the BIA failed to refer to most of the documents that Chen
submitted in support of his motion, whether explicitly or by
citation to an earlier decision,7 including his affidavit, the letter
7
In the relevant part of the BIA’s decision, it discussed J-W-
S- and Matter of C-C-, 23 I & N Dec. 899 (2006). App. at 3.
We note that in a situation like the present one, where the
evidentiary record contains documents that were not at issue in
28
from his mother, the Consular Information Sheet from 2003, the
Commission Report for 2005, Wu’s testimony to Congress from
2004, the Fujian Regulation dated July 26, 2002, and the two
newspaper articles from 2005.
In fact, the BIA’s discussion in Chen’s case amounts to
a series of conclusory statements, and fails to offer even a
cursory review of the record. For example, the BIA stated that
“[Chen] has not provided sufficient evidence that any sanctions
[he] may experience if he returns to China would rise to the
level of persecution.” Id. Even though the BIA may have been
correct in its summary conclusion, there is no escape from the
reality that it did not explain why the evidence that Chen
submitted was not sufficient.
Moreover, although the BIA concluded that “[t]he mere
existence of a policy under the local regulations of sterilization
if a couple has two children does not demonstrate that such
policy would be enforced in Fujian Province by physical
coercion,” and that “there is no current evidence that couples
returning with two United States citizen children would be
sterilized,” id., the BIA did not discuss Chen’s affidavit (which
an earlier decision, mere reference to that earlier decision is
insufficient to warrant adopting its conclusions. Rather, the BIA
must assess any evidence that bears on the questions of fact
which it must decide. See Yang, 427 F.3d at 1122 (“If an
agency makes a finding of fact without mentioning or analyzing
significant evidence, its decision should be reconsidered.”)
(internal quotation marks omitted).
29
described instances of forced sterilization), the State
Department’s 2005 Country Report (which the court in Li
concluded was “consistent” with claims of forced sterilization),
or the Consular Information Sheet from 2003 (which contained
statements showing that, for some purposes at least, the Chinese
government considers foreign-born children of Chinese
nationals equivalent to children born in China). Given the
BIA’s failure to discuss most of the evidentiary record in Chen’s
case, and for reasons parallel to those we discussed in analyzing
Zheng’s case, we will vacate the BIA’s denial of Chen’s motion
to reopen the case and remand to the BIA for further
proceedings.8
8
Respondent has filed a letter pursuant to Fed. R. App. P.
28(j) in Chen’s case in which he cites Shao v. Mukasey, No. 07-
2689, F.3d , 2008 WL 4531577 (2d Cir. Oct. 10, 2008),
upholding the BIA’s conclusion in that case that the petitioner
had not provided sufficient evidence that any harm the petitioner
would face if he returned to China would rise to the level of
persecution. Respondent regards Shao as being based on
evidence identical or substantially similar to the evidence Chen
submitted. Certainly, on the remand respondent may bring this
case to the BIA’s attention, and the BIA in its discussion of the
evidence in Chen’s case is free to consider Shao, but
respondent’s citation of that case does not overcome the
deficiency in the BIA’s decision in this case. By the same token
Chen may bring Lin v. Mukasey and the 2006 Country Report
that we discuss above to the BIA’s attention on the remand.
Respondent in the same letter indicates that “[s]everal
30
V. CONCLUSION
We think it is important to point out that both Zheng and
Chen are from Fujian Province and thus quite naturally their
cases focus on conditions in that province. We understand that
conditions with respect to limitations on the birth of children are
not uniform in China and thus the facts in this case may not be
representative of the situation throughout that country. We also
reiterate that in reaching our conclusion that we will remand
these cases to the BIA, we do so exclusively by reason of
procedural shortcomings that we find existed in the BIA
proceedings, and thus we do not imply that the BIA reached an
incorrect result predicated on the records before it in either case.
In short, the abuse of discretion relates to how the BIA reached
its result and not the result itself. Indeed, we are well aware that
respondent contends that the documents the petitioners
presented should not lead to the reopening of their proceedings.
Certainly, if the BIA agrees with this contention it is free to say
so on the remands as we do not reject respondent’s contentions
on this point. In view of our conclusions we will vacate the
circuit courts of appeals have recently deferred to the [BIA’s],
reasonable determination . . . that an alien may file a successive
asylum application after being ordered removed only if he does
so through the filing of a motion to reopen in which he
establishes a material change in conditions in the county of
removal.” We agree with this unremarkable statement, which
merely restates the requirements of 8 C.F.R. § 1003.2(c)(3)(ii),
and, as we make clear, the BIA might conclude on the remand
that petitioners did not satisfy this standard.
31
order of July 16, 2007, in Zheng’s case and the order of June 29,
2007, in Chen’s case and will remand the cases to the BIA for
further proceedings consistent with this opinion. In particular,
the BIA should reconsider the appeal in both petitioners’ cases
and make a more complete analysis of the evidence they have
submitted.
32