Jin Chen v. Eric Holder, Jr. , 547 F. App'x 541 ( 2013 )

Case: 13-60102 Document: 00512446510 Page: 1 Date Filed: 11/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2013
No. 13-60102
Summary Calendar Lyle W. Cayce
Clerk
JIN YAU CHEN,
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. A077 740 694
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Jin Yau Chen, a native and citizen of China, was ordered deported in 2000,
and his applications for asylum, withholding, and protection under the
Convention Against Torture (CAT) were denied. Over 10 years later, Chen
returned to the United States and filed a motion to reopen with the Board of
Immigration Appeals (BIA), accompanied by an application for asylum,
withholding, and relief under the CAT, claiming that reopening removal
proceedings was warranted because he had converted to Christianity while
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 13-60102
living in China and had allegedly suffered persecution in China on account of his
religion. He asserted that if he returned to China, he would be arrested and
sentenced to imprisonment.
The Board denied Chen’s motion to reopen. The Board determined that
Chen’s motion to reopen was untimely and did not qualify for the exception to
the time limit to apply for asylum based on changed country conditions. The
Board found that Chen’s evidence submitted in support of his claim was
“unpersuasive.” Specifically, the Board noted that the proffered evidence from
China was not authenticated as required by regulations, or in any other manner,
citing 8 C.F.R. § 287.6; Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA
2010); rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.
2012); and Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007)). Further, the Board
found that it was unclear from the translated notice purportedly from the
Jianguang Villagers’ Committee as to who generated the notice and, “without
further indicia of reliability,” the Board found that it was unable to determine
that this document carried Chen’s burden of proof for reopening. The Board
noted that Chen’s employment termination notice was unsigned and
unauthenticated, and that the letter from his friend who claimed to be an
eyewitness to Chen’s arrest was unsworn and was not subject to
cross-examination. Addressing Chen’s claim that he feared returning to China
because the Chinese government was still looking for him, the Board stated that,
in light of the earlier adverse credibility finding by the Immigration Judge (IJ),
coupled with the lack of reliable evidence submitted with the motion to reopen,
it found no reason to except Chen from the timeliness regulations set forth in
8 C.F.R. § 1003.2(c).
In his petition for review, Chen argues that the BIA abused its discretion
in denying his motion to reopen because he submitted a prima facie case of past
persecution in China and a well-founded fear of future persecution. He contends
that the BIA abused its discretion in denying his motion to reopen on the ground
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No. 13-60102
that he failed to carry his burden of proof because his documentary evidence was
not authenticated. He states that he is willing to testify before the IJ concerning
how and where he received the documents to prove they are genuine. He argues
that it is unfair to deny his motion based on failure to authenticate documents
because it is very difficult to get the Chinese government to cooperate in
authenticating documents.
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.” Chen does not dispute that the
village certificate and his other documents were not authenticated as required
by the regulation or in any other manner as found by the Board. He seeks to
establish the reliability of the document by means of his testimony and other
testimony and affidavits which he would present at a hearing before the IJ.
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Chen could have provided this information in affidavits accompanying his
motion to reopen. See Chen v. Attorney General of U.S., 676 F.3d 112, 117 (3d
Cir. 2011) (holding that the IJ and BIA properly discounted the village
committee notice as unauthenticated, noting that the proper means of
authentication would be an affidavit from the person by whom the document was
obtained).
The BIA did not abuse its discretion in denying Chen’s motion to reopen.
See Gen Lin v. Attorney General U.S., 700 F.3d 683, 686-88 (3d. Cir 2012)
(holding that the BIA did not abuse its discretion in denying a motion to reopen
on the ground that alien failed to properly authenticate documents he submitted
to support his claim that he would be arrested if he returned to China because
of his religious practices); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA
2010) (holding that unsigned and unauthenticated letter from a village
committee was entitled to minimal weight); rev’d on other grounds by Hui Lin
Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
Chen argues that the BIA denied him due process in failing to remand his
case to the IJ for reception of evidence and testimony. Chen cannot establish a
due process violation because the decision whether to grant a motion to reopen
is purely discretionary, and “the denial of discretionary relief does not rise to the
level of a constitutional violation even if the moving party had been eligible for
it.” Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006) (internal
quotation marks, citations, and brackets omitted).
PETITION FOR REVIEW DENIED.
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