Yun Gao v. Mukasey ( 2007 )

06-4746-ag
Yun Gao v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2007
Argued: November 14, 2007 Decided: November 19, 2007
Docket No. 06-4746-ag
____________________
ZHI YUN GAO,
Petitioner,
—v.—
MICHAEL B. MUKASEY,*
Respondent.
____________________
Before:
KATZMANN and WESLEY
Circuit Judges.**
Petition for review of an order of the Bureau of Immigration Appeals (BIA) dated September
22, 2006 denying motion to reopen as untimely. We conclude that the BIA did not adequately
consider petitioner’s evidence of changed country conditions. The petition for review is granted, the
BIA’s order is vacated and the case is remanded.
____________________
CHARLES CHRISTOPHE (Aleksander Milch, of counsel)
Christophe & Associates, P.C., New York, New York, for
Petitioner.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2) Attorney General Michael B.
Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales.
**
The Honorable Thomas J. Meskill, who was a member of this panel, died prior to oral
argument and the appeal is being decided by the remaining two members of the panel, who are in
agreement. See 2d Cir. Interim R. 0.14(b).
Paul E. Naman, Assistant United States Attorney for
Matthew D. Orwig, United States Attorney for the Eastern
District of Texas, Beaumont, Texas, for Respondent.
____________________
PER CURIAM :
The petitioner Zhi Yun Gao seeks review of a September 22, 2006 order of the Board of
Immigration Appeals (BIA) denying his motion to reopen. Gao is a native and citizen of China
who was born in Changle City in the Fujian Province. He and his wife had a son in China in
1993. In 1998, Gao entered the United States. He filed an application for asylum and
withholding of removal, which the immigration judge denied on May 10, 1999. In 2001, Gao
and his wife had a second son in New York. The BIA dismissed his pro se appeal on August 12,
2002.
On June 5, 2006, Gao filed a motion to reopen his removal proceedings with the BIA
alleging that conditions in China had changed such that if he were returned to the Fujian
Province with a second U.S.-born child, either he or his wife would be forced to undergo
sterilization under a coercive population control policy. In support of this motion, Gao submitted
two documents that he argues are comparable to documents that this Court found material in
Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006): (1) a family planning leaflet from Tin
Jian Town in Fujian Province and (2) the October 2005 State Department report, “China: Profile
of Asylum Claims and Country Conditions.” The leaflet, entitled “Teaching of the Basic
Knowledge of Population and the Family Planning,” is in a question and answer format and is
dated “In Year 1999.” Question 9 reads:
Under the regulation of our province, what contraceptive measure needs to be
-2-
taken after giving birth to one child and what measure needs to be taken after
giving birth to two children or more?
A: One child, IUD insertion; two children, sterilization.
The 2005 State Department report notes that, in general, Chinese citizens who give birth to
children in the United States are not afforded any special treatment under the family planning
laws upon their return to China. It appears that neither of these documents was available at the
time of Gao’s hearing before the IJ.
The BIA denied Gao’s motion to reopen on September 22, 2006, finding that it was
untimely and that Gao did not qualify for an exception to the timeliness requirement because he
had not shown changed circumstances arising in his country of nationality under 8 C.F.R. §
1003.2(c)(3)(ii). The BIA did not specifically address the documents Gao submitted to show
changed country conditions, merely stating: “In addition, none of the background information
submitted with the motion specifically mentions respondent by name.”
We review the denial of a motion to reopen for abuse of discretion. Kaur v. Bd. of
Immigration Appeals, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). While the BIA need not
“expressly parse or refute on the record each individual argument or piece of evidence offered by
the petitioner” as long as it “has given reasoned consideration to the petition, and made adequate
findings,” Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir. 2006) (internal
quotation marks omitted), we have repeatedly stated that “[d]espite the agency's discretion . . .
‘IJs and the BIA have a duty to explicitly consider any country conditions evidence submitted by
an applicant that materially bears on his claim’ and that ‘a similar, if not greater, duty arises in
the context of motions to reopen based on changed country conditions.’” Fong Chen v.
Gonzales, 490 F.3d 180, 182 (2d Cir. 2007) (per curiam) (quoting Shou Yung Guo, 463 F.3d at
-3-
115).
In Shou Yung Guo, the petitioner (who had two children, the second born in the United
States before the order of removal) submitted with her motion to reopen (1) a pair of decisions
from the Changle City and Fujian Province Family-Planning Administrations stating that Chinese
nationals who engaged in reproductive behavior overseas would be subject to enforcement of
family planning policies upon returning to China and (2) a family planning question-and-answer
style document from Changle City stating that the provincial regulations mandated insertion of
an intrauterine device upon the birth of the first child and sterilization upon the birth of the
second child. 463 F.3d at 112-13. Finding these documents “unquestionably” material, we
remanded to the BIA to consider whether they were sufficient to show a change in policy in the
Fujian Province sanctioning forced sterilization of parents who have a second child born in the
United States. Id. at 115.
The documents that Gao submitted in support of his motion to reopen are strikingly
similar to the documents in Shou Yung Guo and, as in that case, the BIA’s decision does not
indicate that the BIA paid any attention to the documents at all. We find that the BIA abused its
discretion in failing to consider the documents. Contrary to the BIA’s suggestion, a document
need not specifically name the petitioner in order to merit attention. Accordingly we remand to
the BIA to consider whether Gao’s evidence supports a finding of changed country conditions.
We note that in the time since this appeal was initiated, the BIA decided Shou Yung Guo
on remand. In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007). The BIA found that the documents in
that case were insufficient, in the face of a 2007 State Department report, to show that country
conditions in China had changed materially to subject parents of U.S.-born children to forcible
-4-
sterilization. Id. at 255, 257-58. The BIA’s decision on remand does not change our conclusion
in this case. Although quite similar, the documents here are different from the Shou Yung Guo
documents; moreover the 2007 State Department report is not in the record. Accordingly, the
proper course is to remand to the BIA to consider whether the evidence offered by Gao is
sufficient to establish changed country conditions.
In light of our disposition, we need not reach Gao’s other arguments.
The petition for review is GRANTED, the BIA’s order is VACATED and the case is
REMANDED to the BIA for further proceedings consistent with this opinion.
-5-