In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2242
JI C HENG N I, a/k/a JI Z HENG N IA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A077-354-460
S UBMITTED D ECEMBER 3, 2012 —D ECIDED A PRIL 26, 2013
Before W OOD and H AMILTON, Circuit Judges, and
D ARROW, District Judge.
The parties have waived oral argument in the case and
thus the appeal is submitted on the briefs and record. See F ED .
R. A PP . P. 34(a)(2)(C).
The Honorable Sara Darrow, Judge of the United States
(continued...)
2 No. 12-2242
W OOD , Circuit Judge. Ji Cheng Ni came to the United
States in 2001 from his home in Fujian Province, China.
An Immigration Judge ordered him removed in 2003,
and his subsequent appeals were unsuccessful. See Ni v.
Gonzales, 134 F. App’x 977 (7th Cir. 2005). Despite that
order, Ni managed to remain in the United States, and
he has since started a family. In 2011, following the birth
of his second child, Ni moved to reopen his removal
proceedings, arguing that he will personally face forced
sterilization under China’s “one-child policy” if he
returns to Fujian Province. Such direct harm constitutes
a form of persecution based on “political opinion”
for which asylum may be granted. See
8 U.S.C.
§ 1101(a)(42)(B); Lin v. U.S. Dep't of Justice,
494 F.3d 296
(2d Cir. 2007). The Board of Immigration Appeals (BIA
or Board) denied Ni’s motion, holding that “his evi-
dence [was] not sufficient to establish a change in cir-
cumstances or country conditions,” as generally is
required when an applicant files a motion to reopen
removal proceedings more than 90 days after the entry
of a final administrative order.
The courts of appeals have received scores of strikingly
similar petitions for review involving Fujian Province
in recent years, and we have regularly upheld the
BIA’s refusal to grant relief in such proceedings. Routine
can be numbing, however, and it can lead to errors.
(...continued)
District Court for the Central District of Illinois, sitting by
designation.
No. 12-2242 3
Here, in evaluating Ni’s motion to reopen, the BIA
failed meaningfully to address documents bolstering
Ni’s assertion that conditions in China have changed
for the worse. Ni’s evidence indicates that family
planning officials in and around his hometown recently
launched a crackdown on those who flout the “one-child
policy.” This oversight is particularly worrisome in light of
the BIA’s frequent admonitions that such locality-
specific evidence of coercive enforcement measures is
necessary for asylum claims predicated on China’s popu-
lation control policies. Because the BIA failed “to
announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and
thought and not merely reacted,” see Iglesias v. Mukasey,
540 F.3d 528, 531 (7th Cir. 2008), we grant Ni’s petition
for review.
I
A motion to reopen is “an ‘important safeguard’ in-
tended ‘to ensure a proper and lawful disposition’ of
immigration proceedings.” Kucana v. Holder,
130 S. Ct.
827, 834 (2010) (quoting Dada v. Mukasey,
554 U.S. 1, 18
(2008)). Subject to certain exceptions, an alien may file
only one such motion, and he must do so within 90 days
of the date of entry of a final administrative order of
removal. 8 U.S.C. § 1229a(c)(7). These time and numerical
limitations present no bar, however, to a motion to
reopen that is “based on changed country conditions
arising in the country . . . to which removal has been
ordered.” § 1229a(c)(7)(C)(ii). The movant must present
4 No. 12-2242
“evidence [that] is material and was not available and
would not have been discovered or presented at the
previous proceeding” to establish such a change. Id.
Because the Board has broad discretion in such
matters, we employ a deferential standard of review.
Kucana,
130 S. Ct. at 834. The BIA abuses its discretion if
“it has made its decision without rational explanation,
departs from established policies without explanation,
or rests on an impermissible basis such as invidious
discrimination.” Jiang v. Holder,
639 F.3d 751, 754 (7th
Cir. 2010). Its determination must be “supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” Youkhana v. Gonzales,
460 F.3d 927, 931 (7th Cir. 2006).
In assessing motions to reopen involving enforcement
of China’s population policies, the BIA has emphasized
that it assesses each application on a “case-by-case”
basis. In re S-Y-G-,
24 I. & N. Dec. 247, 251 (BIA 2007). An
applicant may successfully reopen his asylum case
by showing “that (1) a relevant change in country condi-
tions occurred, (2) the applicant has violated family
planning policy as established in that alien’s local
province, municipality, or other relevant area, and
(3) the violation would be punished in a way that
would give rise to a well-founded fear of persecution.”
Id. Should the BIA find that no relevant change has oc-
curred, it must provide a “reasoned explanation for
its finding that [a petitioner] ha[s] not provided evi-
dence of changed conditions.” Gebreeyesus v. Gonzales,
482 F.3d 952, 955 (7th Cir. 2007). Importantly for present
No. 12-2242 5
purposes, we cannot accept “an agency’s inadequately
justified decision ‘by substituting what [we] consider[]
to be a more adequate or proper basis’ for the deci-
sion.” Borovsky v. Holder,
612 F.3d 917, 921 (7th Cir.
2010) (quoting SEC v. Chenery Corp.,
332 U.S. 194,
196 (1947)).
II
Ni arrived at Los Angeles International Airport on
August 13, 2001, and promptly sought asylum. He
initially claimed that he fled Fujian Province after
Chinese authorities shuttered his bookstore in response
to his sale of Falun Gong materials, but an Immigration
Judge (IJ) denied relief on that basis in 2003 and
ordered him removed. The BIA summarily affirmed the
IJ’s opinion on June 8, 2004, and this court denied Ni’s
petition for review on June 20, 2005. Ni, 134 F. App’x
at 980.
At that point, rather than depart, Ni remained in
New York City. In 2006, he married Feng Mei Yang, also
a native and citizen of China, and they now have two
children. On July 5, 2011, a month after the birth of
his second child, Ni moved to reopen his removal pro-
ceedings. He asserted that under China’s strict family
planning policy, the government permits couples to
have only one child, and that he would be forced to
undergo sterilization should he be removed to Fujian
Province. If proven, this would make Ni eligible for
asylum on “political opinion” grounds, since a person
who can demonstrate a “well founded fear that he or
6 No. 12-2242
she will be forced to undergo such a procedure [abortion
or sterilization] or [be] subject to persecution for such
failure, refusal, or resistance shall be deemed to have a
well founded fear of persecution on account of political
opinion.”
8 U.S.C. § 1101(a)(42)(B).
Ni’s motion to reopen came seven years after the
BIA’s final order of removal in 2004, well beyond the
ordinary 90-day time limit. In order to obtain reopening,
Ni had to make a threshold showing of “changed coun-
try conditions” in China. 8 U.S.C. § 1229a(c)(7)(C)(ii).
Because the birth of Ni’s two children in the United
States is “merely a change in personal circumstances”
rather than a change in “country conditions,” Xiao Jun
Liang v. Holder,
626 F.3d 983, 988 (7th Cir. 2010) (internal
quotation marks and citations omitted), most of Ni’s
motion focused on establishing an increase in forced
sterilizations and abortions in Fujian Province in recent
years.
Ni’s effort to make such a showing had to take into
account the U.S. Department of State’s 2007 Country
Profile of Asylum Claims and Country Conditions (2007
Country Profile), which states that “U.S. officials in China
are not aware of [an] 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,” and
that “central government policy prohibits the use of
physical coercion to compel persons to submit to
abortion or sterilization.” Nevertheless, portions of the
2007 Country Profile suggest that abuses may occur at
the local level. In the past, the BIA has found this report
No. 12-2242 7
to be “highly probative and reliable evidence of country
conditions in Fujian Province” and has relied on it to
deny asylum requests by similarly situated applicants.
See In re H-L-H- & Z-Y-Z-,
25 I. & N. Dec. 209 (BIA 2010).
Ni had two responses to the 2007 Country Profile: he
challenged its methodology and findings; and he argued
that its relatively sanguine assessment established only
a baseline of “country conditions in China as they existed
on or before May 2007.” Since then, Ni contends, condi-
tions have worsened. In support of this claim, Ni sub-
mitted nearly 900 pages of indexed documents, in-
cluding a scholarly critique of the 2007 Country Profile by
Dr. Flora Sapio; the 2009 and 2010 Annual Reports of the
Congressional-Executive Commission on China (CECC
Reports); various research articles and media reports;
and, perhaps most importantly, dozens of directives
and communiqués to and from local family planning
officials throughout Fujian Province. We discuss these
documents in greater depth below, but in general
they support the proposition that enforcement of China’s
family planning policy has become more stringent since
2007 in Fujian Province, and that coerced sterilization
and abortions are becoming more common.
The BIA gave short shrift to Ni’s presentation. After
cataloging the voluminous evidence Ni submitted, it
offered a one and one-half page explanation of why
these materials failed to persuade it of “changed condi-
tions” in China. Most of this discussion focused on why
the Board found the 2007 Country Profile reliable, and
why it found Dr. Sapio’s critique unpersuasive. The
8 No. 12-2242
Board did not directly address Ni’s contention that con-
ditions had deteriorated since the issuance of the
2007 Country Profile, though it very briefly touched upon
the 2009 and 2010 CECC Reports and the collection of
government directives that Ni submitted. Neither set of
materials, it concluded, was “sufficient to demonstrate
that the respondent will be subjected to sterilization”
or “suffer mistreatment amounting to persecution” upon
return to China. Because Ni had “exceed[ed] the time
limit for motions to reopen” and failed “to establish a
change in circumstance or country conditions ‘arising
in the country of nationality’ so as to create an exception
to the time and number limitations for filing a late
motion to reopen,” the BIA denied Ni’s motion to reopen.
III
Particularly when an alien submits nearly 1,000 pages
of evidence, the BIA need not “expressly parse or refute
on the record each individual argument or piece of evi-
dence offered by the petitioner.” Shao v. Mukasey,
546
F.3d 138, 169 (2d Cir. 2008); see also Iglesias,
540 F.3d at
531 (“[T]he BIA does not have to write an exegesis on
every contention, [though] it must consider the issues
raised . . . .”). But that does not mean that the Board can
simply disregard relevant evidence. Here, it appears that
the Board failed to notice that Ni presented precisely the
sort of evidence it has demanded for a successful motion to
reopen. We give examples below.
Initially, we confirm that the Board was entitled to
reject Dr. Sapio’s critique of the 2007 Country Profile.
No. 12-2242 9
The BIA’s opinion reveals that it considered Dr. Sapio’s
arguments, identified several weaknesses, and ultimately
found that her “critique of the 2007 U.S. State Depart-
ment Profile on China [was insufficient to] persuade
[the Board] that the Profile is unreliable.” Though State
Department reports are not “Holy Writ,” Galina v. INS,
213
F.3d 955, 959 (7th Cir. 2000), they are “entitled to defer-
ence,” Zheng v. Gonzales,
409 F.3d 804, 811 (7th Cir. 2005).
Such reports “are accorded special weight, because they
are based on the collective expertise and experience of the
Department of State, which has diplomatic and
consular representatives throughout the world.” In re
H–L–H–, 25 I. & N. Dec. at 213 (internal quotation marks
and citations omitted). We note that the BIA’s rejection of
Dr. Sapio’s critique has been discussed in at least nineteen
appellate cases from six circuits—many involving the same
lawyers who represent Ni here—and not once has a court
of appeals found the BIA’s rejection of Dr. Sapio’s report to
constitute an abuse of discretion. See, e.g., Zheng v.
Holder,
701 F.3d 237, 241-42 (7th Cir. 2012); Hang Chen
v. Holder,
675 F.3d 100, 108 (1st Cir. 2012); Xiu Jin Yu v.
Attorney Gen. of U.S., 429 F. App’x 158, 161 (3d Cir. 2011).
But it is one thing to accept the Board’s evaluation of
Dr. Sapio’s contribution, and another to say that its treat-
ment of the 2007 Country Profile as a whole was unob-
jectionable. The Board did not indicate, for example,
what “conclusions” and “highly probative evidence”
from the 2007 Country Profile it actually was crediting.
This is a troubling omission, since the gravamen of Ni’s
motion to reopen is that the relevant changes in Fujian
Province postdate the May 2007 publication of the State
10 No. 12-2242
Department’s report. In its brief, the government urges
that the BIA “reasonably found persuasive and relied
on” the following pieces of the Profile:
! “Central government policy prohibits the use of
physical coercion to compel persons to submit
to sterilization or abortion.”
! “U.S. diplomats in China have heard reports that
local officials occasionally employ illegal means,
such as forcibly performing abortions or steriliza-
tions . . . but only . . . from Provinces other than
Fujian.”
! “Consulate General officials visiting Fujian . . . did
not find any cases of physical force employed
in connection with abortion or sterilization.”
! “[I]n interviews with visa applicants from Fujian,
representing a wide cross-section of society, Con-
sulate General officers have found that many
violators of the one-child policy paid fines but
found no evidence of forced abortion or property
confiscation.”
Ni’s motion to reopen accepted that this was the case
in 2007, explaining that “[t]he Board has repeatedly
emphasized its perception [based on the 2007 Country
Profile] of the Chinese government’s enforcement of the
population control policy on or before May 2007 as
‘lax.’ ” For present purposes, we accept this under-
standing of the Profile.
The crux of Ni’s argument, however, is that conditions in
Fujian Province, and specifically in and around Ni’s
No. 12-2242 11
small hometown of Guantou Town (population 5,790, see
http://www.tiptopglobe.com/city?n=Guantou&p=5790#lat=
26.15544&lon=119.60815&zoom=7, last visited April 23,
2013) have since worsened. See Liang,
626 F.3d at 989
(“[U]nless [petitioner] could show that China’s enforce-
ment of the policy had become more stringent in her
province since her last hearing, she could not prevail.”).
To support his contention, Ni pointed to reports issued
in 2009 and 2010 by the Congressional-Executive Com-
mission on China. These more recent reports, he argues,
offer a darker assessment of conditions in China than
the 2007 Country Profile. The reports were not buried in
Ni’s filings: he discusses them at length in the body of
the motion to reopen, and they appear as the first two
exhibits in his lengthy appendix of “Background Docu-
ments in Support of Motion to Reopen.” The 2009 CECC
Report (published October 10, 2009), for example, stated
that “the use of coercive measures” to enforce birth
control policies is now “commonplace”; that “in the past
year, authorities in various localities forced women to
undergo abortions, and in some cases, reportedly
beat violators of population planning regulations”; and
that “local authorities continue to mandate surgical
sterilization and the use of contraception as a means
to enforce birth quotas.” In some areas of Fujian
Province, the Report specified, “authorities . . . employed
abortion as an official policy instrument.” Fujian
Province is also listed as an area where “population
planning officials are authorized to take ‘remedial mea-
sures’ to deal with ‘out-of-plan’ pregnancies.” According
to the Report’s authors, the term “remedial measures”
12 No. 12-2242
(bujiu cuoshi) is often used as a euphemism for “com-
pulsory abortion.” The 2010 CECC Report (published
October 10, 2010) offers a similarly bleak assessment.
Its key findings include the observation that “Chinese
authorities continued [in 2010] to implement popula-
tion planning policies that interfere with and control
the reproductive lives of women [including] forced steril-
ization [and] forced abortions,” and that, at least with
respect to migrant workers, forced abortions were be-
coming more common. Early in the year, the Report
also observed, “authorities across a wide range of
Chinese localities launched population planning enforce-
ment campaigns—often dubbed ‘spring family planning
service activities’ (chunji jisheng fuwu xingdong)—that
employed coercive measures to terminate ‘out-of-plan’
pregnancies.” These coercive measures included forced
sterilizations and abortions.
The BIA did not ignore these Reports altogether, but
it brushed over them lightly with the following comment:
The evidence indicates that social compensation fees,
job loss or demotion, loss of promotion opportunity,
expulsion from the party, destruction of property,
and other administrative punishments are used to
enforce the family planning policy. [Citing 2009 and
2010 Congressional-Executive Commission Reports.]
The evidence reflects that China regards a child of
Chinese nationals who have not permanently settled
in another country as a Chinese national, but it is
not sufficient to demonstrate that the respondent
will be subjected to sterilization. [Citing Liang
No. 12-2242 13
v. Holder,
626 F.3d 983 (7th Cir. 2010); In re S-Y-G-,
24
I. & N. Dec. 247 (BIA 2007)].
The opinion contains no further mention of the CECC
Reports.
This response tells us almost nothing. It indicates that
the BIA did credit the CECC Reports, at least in part.
Why the BIA found the Reports’ discussion of certain
“administrative punishments” and coercive tactics to
be persuasive, but found the Reports’ discussion of
forced sterilizations and abortions in Fujian Province not
to be persuasive, however, remains a mystery. Though
these same Reports have featured in previous asylum
cases arising out of Fujian Province, the two cases cited
by the BIA (Liang and S-Y-G-) make no mention of the
Congressional-Executive Commission. We have no idea
what bearing the Board thought that those cases have
on Ni’s evidence. This underscores a final, overarching
problem: the BIA appears to have misapprehended
the purpose of this evidence. Ni’s argument was not
that the CECC Reports constitute irrefutable proof that
he “will be subjected to sterilization,” but rather that
they evince a steady worsening of conditions serious
enough to warrant reopening his case.
Six months before the BIA ruled on Ni’s motion to
reopen, this court noted in a non-precedential order
that “[t]he Board’s failure to address the [CECC] reports
is troubling: CECC reports are official publications that
should be afforded weight, and the Board ought to have
explained how it reconciles the CECC reports with its
view that China’s family-planning policy is enforced
14 No. 12-2242
through administrative means.” Qiao Ling Lin v. Holder,
441 F. App’x 390, 394 (7th Cir. 2011). Though we
have previously indicated that these reports, taken
alone, may not be sufficient to demonstrate “changed
country conditions,” see id.; see also Ping Zheng v. Holder,
701 F.3d 237 (7th Cir. 2012), they were far from the
only evidence Ni presented. The Board’s ongoing refusal
to respond meaningfully to such evidence is difficult
to understand.
The BIA offered a similarly perfunctory response to
dozens of official government publications Ni sub-
mitted that appear to corroborate his claim of a recent
crackdown by family planning officials in Fujian Prov-
ince. To give but a few examples, Ni presented a June 11,
2009, document issued by the People’s Government of
Guantou Town that details a “Hundred-Day Battle on
population and family planning,” during which officials
should “complete the missions of required abortion,
induced labor abortion, sterilization, and collection of
social maintenance fees.” This grim missive provides
for rewards and penalties based on progress toward
family planning goals. A March 16, 2008, Guantou Town
directive entitled “Notification with regard to Tightening
of this year’s Implementation of Birth Control Measures”
instructs officials to “step up your efforts on population
and family planning . . . . [W]omen with two or more
children are required to perform the sterilization.” A May
10, 2007, Guantou Township Committee document refer-
ences another “One-Hundred Day Campaign” during
which a Special Operation Command was established to
“search and arrest the rule breaker. If women is [sic]
No. 12-2242 15
confirmed to be pregnant without permit, send them to
the County Hospital. Implement critical remedial mea-
sure.” Ni offered several more documents from Guantou
Town containing similar statements.
Ni also submitted documents from authorities in
Lianjiang County, in which Guantou Town is located. A
December 24, 2010, announcement celebrating the
“Launching [of] Countywide Massive Family Planning
Clean-up Work” details a new campaign to “stop the
extra births beyond the quota” through strict adherence
to “four surgeries” and “double check-ups” targets.
Officials are instructed to enter homes and “take
every measure possible to raise the materialization
rate” for “four surgeries.” Officials who do not meet
goals will face “great severities” and will be assessed
as “not qualified for the jobs for that year and will also
be disciplined in other ways.” Ni also submitted num-
erous additional documents from neighboring Fuzhou
and Changle City, as well as from other parts of Fujian
Province. All of these materials bolster his assertion of
a material change in country conditions.
The Board offered a similarly brief and desultory re-
sponse to this evidence:
The respondent is from Guantou Town, Fuzhou
City, and he has not shown that the documents
and regulations from other towns and cities are ap-
plicable to him. The evidence that there have been
reports of incidents of coercion to meet birth targets
in some areas of China, contrary to the national
policy, is not sufficient to establish that the re-
16 No. 12-2242
spondent will suffer mistreatment amounting to
persecution based on the birth of his children in
the United States. See Chen v. Gonzales,
489 F.3d 861,
862 (7th Cir. 2007) (affidavits relating personal ex-
periences or tales about sterilizations in Fujian fol-
lowing the birth of children in China would not estab-
lish that a person in the respondent’s position faces
a material risk that this would happen to her based
on the birth of her children in the United States).
Beyond these two sentences, the BIA offered no substan-
tive commentary on Ni’s proffered government docu-
ments.
This too is an inadequate response. If these docu-
ments are genuine—and this remains an important
“if”—they constitute strong evidence that harrowing
practices are common in the part of Fujian Province
(indeed, the very town) from which Ni hails. The BIA
faulted Ni for “not show[ing] that the documents and
regulations from other towns and cities are applicable
to him” and for relying on evidence from other areas
in China, but it ignored Ni’s evidence that directly ad-
dressed enforcement practices in Guantou Town,
Lianjiang County, and Fuzhou City.1 (We note that the
1
According to the State Department’s 2007 Country Profile,
Guantou is a town in Lianjiang County, just north of Fuzhou
City. Fuzhou City and Changle City are adjacent municipalities
to the south and southeast, distinct from Lianjiang County.
The BIA’s statement that Ni is from “Guantou Town, Fuzhou
City,” is thus somewhat confusing, since the record indicates
(continued...)
No. 12-2242 17
BIA appears to have recycled the “other towns and
cities” language from previous “one-child policy” cases
involving petitioners who, unlike Ni, failed to present
evidence from their hometowns. See, e.g., Hang Chen,
675
F.3d at 105 (“The BIA also stated that Chen had not shown
that other towns or cities’ regulations regarding family
planning would apply to him.”)). Assuming that the Board
actually examined Ni’s documents, we are left with
nothing to indicate how the information contained within
them affected its analysis. Nor, again, does the cited
authority offer any insight: the petitioner in Chen presented
no government documents in support of her motion to
reopen. Even so, this court remanded because we
worried that a newly discovered pamphlet from
Changle City undermined the BIA’s conclusion “that
Fujian no longer uses force in its family-planning pro-
gram.”
489 F.3d at 863.
The government offers three theories for why the
BIA might reasonably have discounted Ni’s docu-
ments from China: (1) the documents were not
properly authenticated pursuant to
8 C.F.R. § 1287.6;
1
(...continued)
that Guantou Town is not part of Fuzhou City proper. The
BIA’s formulation suggests, however, that its later allusion to
evidence from “other towns and cities” means “towns and
cities outside the greater Fuzhou region.” If so, this com-
pounds the BIA’s error, since the vast majority of documents
Ni presented were, in fact, from government bodies in
the general area (i.e., Fuzhou City, Changle City, and Lianjiang
County).
18 No. 12-2242
(2) Ni had a prior adverse credibility finding during
his earlier, unsuccessful asylum proceedings; and (3) the
State Department’s 2007 Country Profile identified wide-
spread fabrication and fraud in documents from Fujian
Province. We address them in turn.
It does not appear that lack of authentication was the
reason why the BIA discounted Ni’s documents from
Guantou Town, Lianjiang County, and Fuzhou City;
rather, it seems that it simply overlooked them. It is
true that early in its opinion, the BIA noted that Ni’s
“documents from China have not been authenticated
pursuant to
8 C.F.R. § 1287.6,” but in the same sentence,
the BIA also explained that Ni “offer[ed] evidence that
his attorney sought to have some of them authenti-
cated.” The Board said nothing about how this lack of
authentication (or Ni’s efforts to comply with Section
1287.6) factored into its weighing of the documents’
evidentiary value, if at all, nor did it offer any other
assessment of the documents’ authenticity. In other
cases from China, courts have noted that the BIA does
not treat failure to authenticate under Section 1287.6 as
“an automatic rule of exclusion.” Liu v. Ashcroft,
372
F.3d 529, 533 (3d Cir. 2004); see also Shtaro v. Gonzales,
435 F.3d 711, 717 (7th Cir. 2006) (failure to authenticate
evidence “does not amount to presumptive proof of
falsity”). This is a sensible approach, since “it may not
be possible for an applicant filing a motion to reopen
to obtain from a foreign government valid and proper
authentication of a document [that] purports to
threaten persecution.” Qin Wen Zheng v. Gonzales,
500
F.3d 143, 149 (2d Cir. 2007).
No. 12-2242 19
Moreover, the BIA apparently accepted that Ni’s docu-
ments from “other towns and cities” did constitute evi-
dence of “coercion to meet birth targets in some [other]
areas of China.” The government can point to nothing
in the record that explains why the BIA would credit
these (similarly unauthenticated) government docu-
ments, but not the more directly relevant evidence
from Guantou Town and Lianjiang County. At best, it is
unclear how or if the BIA weighed Ni’s government
documents—evidence that goes to the heart of his
asylum claim—and “[w]e cannot affirm the BIA if the
basis for its decision is unclear.” Kadia v. Holder,
557
F.3d 464, 468 (7th Cir. 2009) (citing Chenery Corp.,
332 U.S.
at 196 (“If the administrative action is to be tested by
the basis upon which it purports to rest, that basis must
be set forth with such clarity as to be understandable.”)).
The government’s other post hoc rationales fall short
for similar reasons. At no point did the BIA suggest
that it doubted the provenance of Ni’s documents,
either because it was giving weight to its earlier
adverse opinion of Ni’s credibility or because it credited
the State Department’s warnings about “widespread
fabrication and fraud in documents from Fujian Prov-
ince.” The government’s first theory—that the Board’s
adverse determination of Ni’s credibility during his
religious persecution asylum claim “carries over” to a
later asylum claim based on distinct facts—has been
expressly rejected by this court and others. Gebreeyesus,
482 F.3d at 955; see also Guo v. Ashcroft,
386 F.3d 556,
562 (3d Cir. 2004) (“No one has explained how the IJ’s
adverse credibility findings implicated Guo’s motion to
20 No. 12-2242
reopen on a ground not previously dealt with by the IJ.
Guo’s credibility (or lack thereof) for religious persecu-
tion simply is not relevant to her motion to reopen in
this case, which relied principally on the fact of her
second pregnancy in contravention of China’s one-child
policy.”). And the BIA’s opinion makes no mention of
the State Department’s apparent concern over “wide-
spread fabrication and fraud” in documents that pur-
port to be from Fujian Province. Finally, it is not this
court’s job to conduct an independent assessment of the
authenticity of Chinese official documents. We decline
the government’s invitation to deny the petition on the
theory that Ni’s documents may not be genuine, where
the BIA has made no such determination on its own.
In short, the BIA’s opinion does not demonstrate that
it reviewed and considered all of Ni’s evidence. We
cannot mend “an agency’s inadequately justified deci-
sion ‘by substituting what [we] consider[] to be a more
adequate or proper basis’ for the decision.” Borovsky,
612 F.3d at 921 (quoting Chenery Corp.,
332 U.S. at 196).
Accordingly, we conclude that further proceedings
are necessary before Ni’s petition for review can
properly be assessed.
IV
The government also urges that the BIA correctly
rejected Ni’s motion because he failed to make a prima
facie showing of eligibility for asylum or withholding
of removal. It notes that “when the Board’s decision
is supported by a rational explanation, [courts] have
No. 12-2242 21
found no abuse of discretion when [the BIA] has looked
at a movant’s prima facie case for asylum in evaluating
her motion to reopen.” Moosa v. Holder,
644 F.3d 380,
385 (7th Cir. 2011). Ni counters that the BIA applied
a standard that was too strict, insofar as it demanded
that Ni conclusively prove that he would be sterilized,
rather than show a “reasonable likelihood” that he
could later demonstrate an objectively reasonable fear
of such persecution. See Liang,
626 F.3d at 989.
In this instance, neither side is right, for the simple
reason that there is nothing in the Board’s opinion that
looks like the ruling the government postulates. The
Board did state at several points that individual pieces
of evidence were “not sufficient to establish that Ni
would face persecution.” But it never commented on the
relevant standard for prima facie eligibility for asylum,
nor did it announce that Ni had failed to make such
a showing. The BIA’s decision rests only on Ni’s failure
to meet “the requirements of section 240(c)(7)(C)(ii)
of the Act because his evidence is not sufficient to
establish a change in circumstances or country condi-
tions,” nothing more. We add that we cannot deny the
petition for review based on the assumption that
the Board’s silence about Ni’s prima facie case must
mean something favorable to the government.
In closing, we note that we make no prediction on
the ultimate outcome of Ni’s motion to reopen or his
application for asylum. But he is entitled to have the
expert agency, the BIA, evaluate in a transparent way
the evidence that he has presented. Simply stating that
22 No. 12-2242
a 2007 document defeats a claim, when the alien
has accepted 2007 as a baseline and has introduced vol-
uminous evidence of change in later years, will not
do. The BIA “must consider the issues raised, and an-
nounce its decision in terms sufficient to enable a re-
viewing court to perceive that it has heard and
thought and not merely reacted.” Iglesias,
540 F.3d at
531. That has not yet happened here.
For these reasons, the petition for review is G RANTED ,
and Ni’s case is R EMANDED to the BIA for further pro-
ceedings consistent with this opinion.
4-26-13
