Tiansheng Zou v. Eric Holder, Jr. , 517 F. App'x 385 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0248n.06
No. 12-3444
FILED
UNITED STATES COURT OF APPEALS Mar 11, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
TIANSHENG ZOU, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
ERIC H. HOLDER, JR., Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
BEFORE: BOGGS, GIBBONS, and COOK, Circuit Judges.
PER CURIAM. Tiansheng Zou petitions this court for review of an order of the Board of
Immigration Appeals (BIA) denying his motion to reopen his removal proceedings. We deny the
petition.
Zou, a native and citizen of China, entered the United States without inspection in 1995. Zou
married his United States citizen wife in 2002; they have three children, all born in the United States.
In 2007, Zou filed an application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT), asserting that, if he returned to China, he would be forced to
undergo sterilization because of his violation of China’s family-planning policy, which allows each
couple to have no more than one child.
The Department of Homeland Security subsequently served Zou with a notice to appear,
charging him with removability under Section 212(a)(6)(A)(i) of the Immigration and Nationality
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Zou v. Holder
Act, 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or
paroled. Zou appeared before an immigration judge (IJ), admitted the factual allegations contained
in the notice to appear, and conceded removability as charged. In addition to his asylum application,
Zou filed an application for cancellation of removal, asserting that his removal would result in
exceptional and extremely unusual hardship to his United States citizen wife and children. At the
merits hearing on August 19, 2010, Zou’s wife testified that she and their children would not return
to China with Zou. Following the hearing, the IJ issued a written decision denying Zou’s
applications for relief and ordering his removal to China.
Zou appealed only the IJ’s denial of his application for cancellation of removal.1 The BIA
dismissed the appeal, concluding that Zou failed to establish that his wife and children would face
exceptional and extremely unusual hardship. Zou filed a petition for review with this court, but
voluntarily dismissed the petition.
Zou filed a timely motion to reopen his removal proceedings for consideration of his
application for asylum, withholding of removal, and protection under the CAT. Zou, who now
asserted that his wife and three children would return to China with him, based his motion on “new
and previously unavailable” evidence regarding China’s enhanced enforcement of the population-
control policy and an official policy change regarding the treatment of couples who return to China
with children born abroad. Zou submitted several hundred pages of documents in support of his
motion. In denying Zou’s motion, the BIA pointed out that most of the submitted documents were
1
The BIA noted that Zou did not “meaningfully dispute” the IJ’s determination on his other
grounds for relief and thus deemed them waived. Zou did not challenge that determination.
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neither new nor previously unavailable, several documents were incomplete, the documents from
China were not authenticated pursuant to 8 C.F.R. § 1287.6, and the documents from towns and
cities other than Zou’s hometown were inapplicable. The BIA concluded that the evidence
submitted by Zou failed to establish that he would suffer mistreatment amounting to persecution or
torture in China based on the birth of his children in the United States.
This timely petition for review followed. We review the BIA’s denial of a motion to reopen
for abuse of discretion. Acquaah v. Holder, 589 F.3d 332, 334 (6th Cir. 2009). Because the BIA
has broad discretion to grant or deny a motion to reopen, a party who seeks reopening “bears a heavy
burden.” Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (internal quotation marks omitted).
The BIA may not grant a motion to reopen unless the “evidence sought to be offered is
material and was not available and could not have been discovered or presented at the former
hearing.” 8 C.F.R. § 1003.2(c)(1). As the BIA correctly pointed out, most of the documents
submitted by Zou in support of his motion to reopen were neither new nor previously unavailable;
the vast majority of the documents pre-date the August 2010 hearing.
Zou argues that a psychologist’s report and his wife’s statement buttressing that report
constituted new and previously unavailable evidence of his individualized fear of harm that the BIA
rejected without a rational explanation. The BIA identified those documents and did not specifically
reject them in denying Zou’s motion. “While the BIA should demonstrate that it has considered the
evidence that a petitioner presents, the BIA is not required to parse or refute on the record every
individual argument or document offered by the petitioner.” Stserba v. Holder, 646 F.3d 964, 978
(6th Cir. 2011) (internal quotation marks omitted).
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According to Zou, the BIA abused its discretion in rejecting documents from China as not
authentic. The BIA merely observed that those documents were not authenticated pursuant to 8
C.F.R. § 1287.6 and noted that Zou submitted evidence of his attorney’s attempts to have some of
them authenticated. There is no indication that the BIA excluded those documents from its
consideration for lack of authentication.
Zou also contends that the BIA abused its discretion in rejecting documents from towns and
cities other than his hometown, Ying Qian Town, Changle City. Given that implementation of the
family-planning policy varies from one area of China to another, see Congressional-Executive
Commission on China 2010 Annual Report at 6 (A.R. 149); Shao v. Mukasey, 546 F.3d 138, 170 (2d
Cir. 2008), the BIA did not abuse its discretion in determining that Zou failed to establish that the
documents and regulations from other towns and cities were applicable to him. Zou argues that the
BIA ignored relevant evidence from his hometown, but there is no indication that the BIA
disregarded such evidence. See Stserba, 646 F.3d at 978.
“[A] motion to reopen should not be granted unless the petitioner makes a prima facie
showing that the statutory requirements for the underlying relief have been met.” Yousif v. INS, 794
F.2d 236, 241 (6th Cir. 1986). Zou contends that the BIA applied the wrong standard, requiring a
conclusive rather than prima facie showing. The BIA concluded that the evidence was “inadequate
to demonstrate a realistic chance that [Zou] can establish his eligibility for relief from removal or
protection under the Convention Against Torture based on the family planning policy in China.”
Other circuits have defined a prima facie case in the context of a motion to reopen as “a realistic
chance that the petitioner can at a later time establish that asylum should be granted.” Jian Lian Guo
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v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004); see Smith v. Holder, 627 F.3d 427, 437 (1st Cir.
2010); Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). The BIA did not apply a heightened
standard.
The BIA did not abuse its discretion in concluding that Zou failed to demonstrate a realistic
chance of establishing eligibility for the relief sought. Zou failed to submit any new and previously
unavailable evidence addressing the specific issue of whether parents who return to China with
children born abroad are required to undergo sterilization. The 2007 State Department Country
Profile for China states:
Some asylum seekers also claim the existence of an official Chinese government
policy mandating sterilization of one partner if a couple has given birth to two
children, at least one of whom was born abroad, if the child or children return to
China. U.S. officials in China are not aware of the alleged official policy, at the
national or provincial levels, mandating the sterilization of one partner of couples
that have given birth to two children, at least one of whom was born abroad.
(A.R. 261). See also Huang v. Mukasey, 523 F.3d 640, 653 (6th Cir. 2008) (“The finding that
children born outside of China are not counted for purposes of China’s population-control policy
continues to be accepted by the BIA, as well as by other courts of appeals.”). We have
acknowledged that State Department reports “are generally the best source of information on
conditions in foreign nations.” Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004) (internal
quotation marks omitted). In support of his motion to reopen, Zou submitted a report by Dr. Flora
Sapio of the Centre of Advanced Studies on Contemporary China criticizing the 2007 Country
Profile. As the BIA noted, Dr. Sapio conceded in her report: “There is no univocal consensus on
whether forced abortions and sterilizations are still used to implement the family planning policy.
Widely different opinions exist. All of them rest on the available evidence, which is neither
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conclusive nor comprehensive.” (A.R. 198). Dr. Sapio’s report does not provide any evidence of
the forcible sterilization of parents who return to China with children born abroad, merely discussing
whether such children are counted against the number of children allowed under the family-planning
policy. See Lin v. Holder, 485 F. App’x 68, 70 (6th Cir. 2012) (stating that Dr. Sapio’s report “failed
to set forth evidence demonstrating that individuals [who have children born abroad] had been
persecuted in China or that there was a reasonable likelihood that Lin would be subjected to
persecution”). Zou also failed to present any evidence that economic sanctions for violating the
family-planning policy would amount to persecution in his case. See Pan v. Holder, 381 F. App’x
572, 576 (6th Cir. 2010).
Because the BIA did not abuse its discretion in denying Zou’s motion to reopen, we deny the
petition for review.
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