Xiu Bin Zhu v. Attorney General of the United States ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3702
XIU BIN ZHU;
JING ZHAO LIANG,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
(Agency Nos. A75-995-757 and A75-995-758)
Submitted Under Third Circuit LAR 34.1(a)
March 11, 2010
Before: BARRY, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion Filed: March 29, 2010)
OPINION
BARRY, Circuit Judge
Xiu Bin Zhu and her husband Jing Zhao Liang seek review of a decision rendered
by the Board of Immigration Appeals (“BIA”) denying their motion to reopen. We will
deny the petition.
I. Background
Zhu and Liang (collectively, “Petitioners”) are citizens of the People’s Republic of
China. They entered the United States as undocumented aliens in the mid-1990s and
were charged as removable in February 2000 for entering without inspection. They
conceded removability and applied for withholding of removal, asylum, and relief under
the Convention Against Torture (“CAT”), claiming past persecution and fear of future
persecution based on China’s family planning policies, and based on Petitioners’ practice
of Falun Gong.1
Before the Immigration Judge (“IJ”), Zhu claimed that she fled China after
escaping from a hospital where authorities forcibly aborted her third pregnancy and told
her that she would be sterilized. The IJ found her testimony to be “all over the place” and
bearing only a vague resemblance to her written application, with which it was
inconsistent in important ways. The IJ made an adverse credibility determination and
denied Petitioners’ application. The BIA affirmed in December 2002.
1
Falun Gong is a:
spiritual movement . . . [popular] because of its purported health benefits
. . . . Since January 2002, the mere belief in Falun Gong, even without any
public manifestation of its tenets, has been sufficient grounds for
practitioners to receive punishments ranging from loss of employment to
imprisonment.
Lin v. Att’y Gen. of U.S., 543 F.3d 114, 117 n.3 (3d Cir. 2008).
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In March 2008—more than five years after the BIA had last considered their
case—Petitioners filed a motion to reopen and for a stay of removal. The BIA denied the
motion as untimely and rejected Petitioners’ argument that their tardiness should be
excused because of changed country conditions.
In support of their motion, Petitioners presented what they claimed was an official
government notice (“Notice”). The Notice, purportedly issued by the Village Committee
of Longtai in China, demands that Petitioners return to China to face sterilization and
punishment for having had three children and practicing Falun Gong. Petitioners also
submitted affidavits from Zhu and her mother-in-law—Mei Ying Chen, who lives in
China—describing their belief that Zhu will face sterilization and Petitioners together will
face punishment if they return to China. Finally, Petitioners submitted the State
Department’s May 2007 Country Reports on China.
In September 2008, Petitioners filed this petition for review of the BIA’s decision
denying the motion to reopen, together with a motion for a stay of removal. We
previously denied the stay of removal.
II. Analysis
We have jurisdiction to review the decision of the BIA under 8 U.S.C. § 1252. In
order to succeed in their untimely motion to reopen, Petitioners must show that country
conditions in China have changed since their case was closed in 2002. 8 C.F.R. §
1003.2(c)(3)(ii). An application to reopen can be denied if a petitioner does not make out
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a prima face case for relief. Zheng v. Att'y Gen. of U.S., 549 F.3d 260, 265 (3d Cir.
2008). We review the denial of a motion to reopen for an abuse of discretion, Guo v.
Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004), and will reject the BIA’s factual findings only
if a “reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. §
1252(b)(4)(B).
Petitioners argue that the Notice and Chen’s affidavit prove that conditions have
changed in China, at least in Petitioners’ village. In light of the fact that the Notice was
not authenticated and that the IJ had made an adverse credibility determination as to Zhu
which the BIA had affirmed, the BIA was not unreasonable in expecting Zhu to
authenticate the Notice and did not abuse its discretion in refusing to consider it in its
unauthenticated form.2 See Zheng v. Gonzales, 500 F.3d 143 (2d Cir. 2007). Chen’s
affidavit adds nothing but her unsupported opinion. The BIA correctly concluded that the
evidence did not demonstrate that country conditions or circumstances have worsened in
China with respect to Petitioners’ “current family planning claim.” Moreover, the BIA
correctly noted that the birth of Zhu’s third child in the United States, and Petitioners’
adoption of Falun Gong, both reflect a change in their personal circumstances, not a
change in country conditions for purposes of § 1003.2(c)(3)(ii). See Liu v. Att’y Gen. of
2
While we have held that failure to authenticate under 8 C.F.R. § 287.6 does not
warrant per se exclusion of documentary evidence, and a petitioner is permitted to prove
authenticity in another manner, Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004), the
Notice was not authenticated in any manner.
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U.S., 555 F.3d 145, 150-51 (3d Cir. 2009).
Petitioners also argue that the BIA improperly made findings of fact and that it
should have remanded the matter to the IJ for fact-findings. This argument is unavailing
because we have long recognized that a motion to reopen may require the BIA to make
findings of fact. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002).
The BIA did not abuse its discretion in denying Petitioners’ untimely motion to
reopen.
IV. Conclusion
We will deny the petition for review.
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