Fei Wang v. Jefferson Sessions , 693 F. App'x 665 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEI WANG; JUAN ZHEN YE, No. 14-70463
Petitioners, Agency Nos. A098-177-751
A098-177-752
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2017**
Seattle, Washington
Before: MURPHY,*** McKEOWN, and NGUYEN, Circuit Judges.
Petitioners Fei Wang and Juan Zhen Ye petition for review of the decision
denying their motion to reopen their removal proceedings. Petitioners argue that if
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
removed to China, they will be subject to persecution, including forced
sterilization, for violating China’s one-child family planning policy and for their
Protestant Christian religious beliefs. We grant in part, deny in part, and remand.
Because the parties are familiar with the facts and history of the case, we need not
recount them here.
1. The Board of Immigration Appeals (BIA) abused its discretion when it
failed to adequately consider Petitioners’ persecution claim. See, e.g., Agonafer v.
Sessions, No. 13-73122, 2017 WL 2698257, at *6 (9th Cir. June 23, 2017) (“While
the BIA ‘does not have to write an exegesis on every contention,’ it is required to
‘consider the issues raised, and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not merely reacted.’”
(quoting Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004))). Petitioners
submitted a plethora of documents with their motion, including Chinese
government documents and the 2009 and 2010 Annual Reports of the
Congressional–Executive Commission on China (CECC). The BIA neither
considered the Chinese government documents nor adequately addressed the
CECC reports. Both of these omissions warrant remand.
The BIA did not adequately consider the authenticity of the Chinese
government documents. This circuit has held that a “petitioner may resort to any
recognized procedure for authenticati[ng] documents[.]” Vatyan v. Mukasey, 508
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F.3d 1179, 1183 (9th Cir. 2007). Here, Petitioners sought to authenticate the
Chinese government documents by: (1) attempting to comply with 8 C.F.R.
§ 1287.6; (2) pointing to document seals and letterheads; (3) providing an expert
report by Dr. Flora Sapio; and (4) explaining that some documents were obtained
from official government websites. Because the BIA did not address these efforts,
we remand so that the agency may more thoroughly examine the foreign
government documents and evaluate their authenticity.
The BIA also failed to adequately consider the information in the 2009 and
2010 CECC reports. The BIA briefly cited the reports in its decision but did not
explain why it had deemed the troubling information in the reports as insufficient
to establish a prima facie case for relief. See, e.g., Yan Rong Zhao v. Holder, 728
F.3d 1144, 1150 (9th Cir. 2013) (faulting the BIA for failing to address the 2010
CECC report). We remand so that the BIA may more thoroughly examine, inter
alia, the CECC reports and explain the rationale behind its decision.
In addition, the BIA erred by failing to follow its own precedent. The BIA’s
decision indicates that Petitioners’ evidence of coercive family planning policies in
“other areas of China” was insufficient to establish changed conditions in Fujian
Province. BIA precedent, however, makes clear that an alien may establish prima
facie eligibility for relief in a motion to reopen using evidence from the “local
province, municipality, or other locally-defined area.” In re J–H–S–, 24 I. & N.
3
Dec. 196, 197-98 (BIA 2007). Therefore, the BIA erred to the extent that it failed
to credit evidence from Fujian Province.
2. The BIA did not abuse its discretion by rejecting Petitioners’ religious
persecution claim. The BIA adequately explained its determination that conditions
for Protestants in 2012 were not materially different than in 2007. After
thoroughly reviewing the record, we conclude that the BIA did not abuse its
discretion in finding no material change in the treatment of Protestants in China.
PETITION FOR REVIEW GRANTED in part; DENIED in part; and
REMANDED.
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