Fei Yan Zhu v. Attorney General United States , 744 F.3d 268 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-2207
_____________
FEI YAN ZHU,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-023-608)
Immigration Judge: Honorable Henry S. Dogin
____________
Argued January 7, 2014
Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.
(Opinion Filed: March 4, 2014)
Theodore N. Cox, Esq. [ARGUED]
325 Broadway
Suite 201
New York, NY 10007
Counsel for Petitioner
Eric H. Holder, Jr., Esq.
Stuart F. Delery, Esq.
Thomas W. Hussey, Esq.
Blair O’Connor, Esq.
Glen T. Jaeger, Esq.
Rachel L. Browning, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________
OPINION
________________
SHWARTZ, Circuit Judge.
Fei Yan Zhu, a native and citizen of the People’s
Republic of China, petitions for review of an order of the
Board of Immigration Appeals (“BIA”) denying her motion
to reopen her removal proceedings pursuant to 8 C.F.R. §
1003.2. Because the BIA’s opinion did not reflect
meaningful consideration of much of the evidence that Zhu
submitted in support of her motion, we will grant the petition
2
for review, vacate the order denying the motion to reopen,
and remand to the BIA for further proceedings. 1
I.
Zhu is from Changmen Village, Guantou Town,
Lianjiang County, Fujian Province, China. She entered the
United States in 1999 without proper documentation. During
her interview with the Immigration and Naturalization
Service (“INS”), she stated that she feared persecution
because of her opposition to China’s population control
policies. The INS determined that she met the credible fear
standard, and she was paroled into the United States for a
hearing before an immigration judge (“IJ”) to determine her
eligibility for asylum.
On February 15, 2000, Zhu appeared before the IJ,
conceded her removability, and filed an application for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”), based on a claim that
she had been and/or would be persecuted for having resisted
population control measures. At the hearing, Zhu testified
that she had a heated exchange with birth control officials and
that they tried to force her to wear an intrauterine device
1
We note at the outset that the record in the instant
case is very similar to that considered by the Court of Appeals
for the Seventh Circuit in Ni v. Holder, 715 F.3d 620 (7th Cir.
2013), and the BIA appears to have used almost identical
language in its decisions in both cases. The Seventh Circuit
found “the BIA failed meaningfully to address documents
bolstering [the] assertion that conditions in China have
changed for the worse.” Id. at 622.
3
when they learned she and her boyfriend were living together.
The IJ found Zhu’s testimony lacked credibility, denied her
application, and ordered her removed to China. The BIA
affirmed the IJ’s decision without an opinion.
In 2002, Zhu filed a timely motion to reopen, alleging
that since the time of the IJ’s decision she had married and
given birth to a son, and that she would be forcibly sterilized
if she returned to China. The BIA denied the motion, noting
that Zhu only had one child, which was not in violation of
Chinese population control policies, and that she had not
shown that “a Chinese national becomes automatically
subject to punitive birth control measures if she has returned
with a child or children born outside China.” Appendix
(“App.”) 2 1213.
In 2008, Zhu filed a second motion to reopen, alleging
that she had given birth to two more children and that
conditions had changed in China because the Chinese
government now counted children born overseas when
considering violations of its population control policies. She
submitted, among other things, a notice from the Family
Planning Office of Lianjiang County to Zhu’s parents,
indicating that Zhu must submit to sterilization upon her
return to China, and a letter from her mother, noting that the
officials had learned that Zhu had children. The BIA denied
the motion because Zhu’s documentation showed no material
change in country conditions, but rather reflected
“incremental increases in the enforcement of family planning
policies in China that have been in existence for
approximately 30 years.” App. 1146.
2
All cites to the appendix are to volumes II and III.
4
On January 14, 2013, Zhu filed a third motion to
reopen, this time with voluminous documentation that she
asserts demonstrates a “material change” in China’s
enforcement of its population control policies in her home
region. See App. 11-1143. These documents purportedly
come from the U.S. government, Chinese government
websites, Chinese governmental entities or officials, and
international media outlets. She contends that these
documents show that the United States Department of State’s
May 2007 “China: Profile of Asylum Claims and Country
Conditions” (the “2007 Profile”), which the BIA had
previously relied upon concerning treatment of those who
violate the population control policies, does not reflect current
conditions in China. Among other things, Zhu asserts that
these documents show that foreign-born children now count
for family planning purposes and new programs have been
implemented in her home province that more strictly enforce
population controls. Zhu also provided an affidavit from an
expert opining about the authenticity of four documents
purporting to embody population control enforcement
measures from Changle City, which is approximately thirty
kilometers from Zhu’s hometown of Guantou. On March 28,
2013, the BIA denied Zhu’s motion to reopen, concluding
that she had failed to establish a material change in country
conditions and had not demonstrated a prima facie case for
CAT relief. Zhu thereafter filed a petition for review.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.2 to
review Zhu’s motion to reopen, and we have jurisdiction to
review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1).
We review the denial of a motion to reopen for an abuse of
5
discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)
Thus, the BIA’s ultimate decision is entitled to “broad
deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d
Cir. 2003) (internal quotation marks omitted), and “will not
be disturbed unless [it is] found to be arbitrary, irrational, or
contrary to law.” Guo, 386 F.3d at 562 (internal quotation
marks and citation omitted). 3 Similarly, we review the BIA’s
evidentiary rulings deferentially. See Cheng v. Att’y Gen.,
623 F.3d 175, 182 (3d Cir. 2010).
III.
With limited exceptions, a motion to reopen must be
filed within ninety days of the date of entry of a final
administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain
relief based on an untimely motion to reopen, Zhu had to
provide material evidence of changed conditions in China that
could not have been discovered or presented during the
previous proceeding. See 8 C.F.R. § 1003.2(c)(3)(ii). Here,
the BIA denied Zhu’s motion to reopen her removal
proceedings because it found: (1) “[h]er evidence is not
sufficient to establish a material change in circumstances or
country conditions ‘arising in the country of nationality’ so as
to create an exception to the time and number limitations for
filing another late motion to reopen to apply for asylum,” and
3
We review the BIA’s factual findings under the
substantial evidence standard, which means that they are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary. 8 U.S.C. §
1252(b)(4)(B); Abdille v. Ashcroft, 242 F.3d 477, 483–84 (3d
Cir. 2001).
6
(2) she “has not demonstrated a prima facie case for
protection under [CAT].” 4 App. 6.
To determine if the BIA abused its discretion in
finding that Zhu did not present evidence to establish a
material change in country conditions, we must determine if
the BIA meaningfully considered the evidence and arguments
Zhu presented. Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d
Cir. 2008). This does not mean that the BIA is required to
expressly parse each point or discuss each piece of evidence
presented, id. at 268, but “it may not ignore evidence
favorable to the alien.” Huang v. Att’y Gen., 620 F.3d 372,
388 (3d. Cir. 2010). To fulfill this requirement, the BIA must
provide an indication that it considered such evidence, and if
the evidence is rejected, an explanation as to why it was
rejected.
In this case, Zhu presented more than 85 documents,
spanning over 1,000 pages. With little explanation, the BIA
concluded that: (1) Zhu failed to authenticate documents from
China; (2) documents from places other than Zhu’s
hometown or county do not establish she is likely to be
persecuted; (3) her expert’s opinion concerning the
authenticity of four foreign documents was speculative; (4)
evidence from components of the United States government
did not show Zhu would be subjected to sterilization; and (5)
she did not show that the 2007 Profile is now inaccurate or
unreliable. We will examine the BIA’s treatment of each
category of evidence.
4
On appeal, Zhu does not challenge the BIA’s finding
that she did not show prima facie eligibility for CAT relief.
7
A. Foreign Government Documents
1. Authentication Generally
We first address the authentication of documents from
foreign sources. Pursuant to 8 C.F.R. § 1287.6, 5 official
foreign records must be “evidenced by an official
publication” or “certified by an officer in the Foreign Service
of the United States, stationed in the foreign country where
the record is kept.” Attempting to comply with this
provision, Zhu’s attorney sent each Chinese government
document to the Consulate General of the United States in
Guangzhou, China, and the Fujian Provincial Foreign Affairs
Office, asking for assistance in authenticating the documents,
but he received no replies.
Although failure to authenticate pursuant to 8 C.F.R.
§ 1287.6 does not result in automatic exclusion, Liu v.
Ashcroft, 372 F.3d 529, 532 (3d Cir. 2004), an unsuccessful
effort to obtain such a certification does not excuse the
proponent of the document from providing other grounds on
which the BIA could find that a document is what it purports
to be. Indeed, we have held that when an asylum seeker fails
to comply with the certification procedure set forth in 8
C.F.R. § 1287.6 because of a “lack of cooperation from
government officials in the country of alleged persecution,”
that individual may “attempt to prove the authenticity . . .
5
The language of this regulation is identical to 8
C.F.R. § 287.6. The only meaningful distinction is that 8
C.F.R. § 287.6 applies to proceedings before an IJ, whereas 8
C.F.R. § 1287.6 applies to proceedings before the BIA.
8
through other means.” 6 Lin v. Att’y Gen., 700 F.3d 683, 686-
87 (3d Cir. 2012) (citing Liu, 372 F.3d at 533). Proponents of
evidence have an obligation to lay a foundation from which a
factfinder can conclude the evidence is what it purports to be
and that it is trustworthy. The BIA concluded that Zhu had
not “established the authenticity of her foreign documents in
another manner.” App. 5. Other than its analysis of the
expert’s opinion concerning a handful of local documents,
the decision treats most of the foreign documents Zhu
submitted similarly, regardless of their alleged source, and
does not address whether other efforts were made to
authenticate the documents and, if so, why they failed. 7
Although the Federal Rules of Evidence do not apply
to immigration proceedings, Ezeagwuna, 325 F.3d at 405,
evidence is admissible if it is probative and its use is
fundamentally fair so as not to deprive the alien of due
process. See, e.g., Lin v. U.S. Dep’t of Justice, 459 F.3d 255,
268 (2d Cir. 2006). Exclusion of evidence is exceptional.
INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984).
Nonetheless, the BIA can reject evidence that it finds to be
untrustworthy or irrelevant and can accept evidence that has
significant indicia of reliability.
6
We have adopted this holding because “asylum
applicants [cannot] always reasonably be expected to have an
authenticated document from an alleged persecutor.” Liu, 372
F.3d at 532.
7
The BIA did consider Zhu’s proffered expert opinion
as to the authenticity of four local government documents.
But other than the expert opinion, the BIA’s opinion does not
reflect consideration of other means by which Zhu’s foreign
documents may be authenticated.
9
These significant indicia of reliability may be shown
in various ways. For example, proponents could turn to the
Federal Rules of Evidence, even though they are not binding,
for guidance. Here, some of the documents Zhu presented
appear to come from Chinese government websites (indicated
by “.gov.cn” domain names). App. 307-33. The Court of
Appeals for the Seventh Circuit, considering the same
documents and relying on Fed. R. Evid. 902, held that
documents from Chinese government websites are
“presumptively authentic if government sponsorship can be
verified by visiting the website itself.” Chen v. Holder, 715
F.3d 207, 212 (7th Cir. 2013). This is one example of how
the Federal Rules of Evidence may provide an avenue to
authenticate documents. 8
In addition, proponents may provide other grounds
upon which the BIA could find the documents authentic. For
instance, the proponent could provide information concerning
how the document was obtained, identify the source of the
information contained in the document, or show that there are
8
The BIA itself has recognized that “[t]he [Rules],
while not binding, may provide helpful guidance in
immigration proceedings because the fact that specific
evidence would be admissible under the Federal Rules ‘lends
strong support to the conclusion that admission of the
evidence comports with due process.’” Matter of D-R-, 25 I.
& N. Dec. 445, 458 n.9 (BIA 2011) (quoting Felzcerek v.
INS, 75 F.3d 112, 116 (2d Cir. 1996)); see also Vatyan v.
Mukasey, 508 F.3d 1179, 1182-84 (9th Cir. 2007) (holding
that foreign government records may be authenticated
through 8 C.F.R. § 1287.6 or any recognized procedure,
including the Federal Rules of Evidence).
10
consistencies between the information contained in the
otherwise unauthenticated document and authenticated
documents. A proponent could also offer an expert to testify
about these topics and others, such as the use of government
seals or the presence of official signatures with which the
expert is familiar. The proponent could also offer forensic
testing results or evidence from the United States Department
of State concerning foreign documents. Cf. Liu, 372 F.3d at534-35 & n.9 (reminding the BIA that it may “choose to order
forensic testing of the original [document] . . ., take additional
testimony, [and] seek guidance from State Department
reports”). We emphasize that the burden to make this
showing of authenticity as well as relevance rests with the
proponent of the document. The BIA is not required to
conduct an independent examination of a document where the
proponent has provided no basis from which it could find the
document is authentic or decipher its relevance. Thus, if a
proponent fails to make such a showing, then it is within the
BIA’s discretion to decline to rely on such evidence. If such
a showing is made, then the BIA must consider the evidence.
See Zheng, 549 F.3d at 266.
2. Documents from Guantou Town and Lianjiang
County
Turning to Zhu’s evidence, we will first examine the
BIA’s treatment of documents from Zhu’s hometown and
county, which the BIA either ignored, rejected, or discounted.
These documents purport to describe recent population
campaigns to meet quotas for sterilizations and abortions. 9
9
For example, Zhu submitted the following evidence
that was unavailable at the time of her last motion to reopen:
11
The Court of Appeals for the Seventh Circuit reviewed many
of the same documents and noted that if the documents are
genuine, “they constitute strong evidence that harrowing
practices are common in” her hometown and county. Ni, 715
F.3d at 628. The BIA did not specifically discuss these
a post-September 1, 2008 document purportedly issued by the
People’s Government of Guantou Town as family planning
publicity material, titled “The Campaign of ‘Bringing the
New Custom of Marriage and Child-bearing into Thousands
of Households’ in Guantou Town,” which states that
“[w]omen with one child are required to perform an IUD
insertion; women with two or more children are required to
perform the sterilization . . . [r]emedial measures should be
taken for unauthorized pregnancies (such as abortion or
induced labor abortion),” App. 729-30; a June 11, 2009
document allegedly issued by the People’s Government of
Guantou Town to every village, titled “Notification with
regard to the Issues on Stepping Up the Work of the Hundred-
Day Battle on Population and Family Planning,” which
instructs officials to “complete the missions of required
abortion, induced labor abortion, sterilization, and collection
of social maintenance fees,” App. 701; and a December 24,
2010 document supposedly issued by the Lian Jiang County
Population and Family Planning Leadership Group to various
township family planning leadership groups, titled
“Announcement on Launching Countywide Massive Family
Planning Clean-Up Work,” which instructs them to form
“task force[s]” to “enter into the homes” of people who
“return to their hometown for the holidays” and conduct a
“2011 New Year and Spring Festival massive cleanup
campaign on ‘double check-ups,’ ‘four surgeries’ and social
child support fee collections,” App. 687.
12
documents, so we do not know if it discounted them because
they lacked authenticity or relevance, or for some other
reason. Thus, we are unable to evaluate whether the BIA
appropriately exercised its discretion.
Because the documents from Zhu’s hometown and
county that she presented, if authentic, may be probative and
other avenues may be available to authenticate them, and
because we are unable to discern why the BIA discounted
them, we will remand to the BIA for it to consider whether
Zhu has made a showing of authenticity and relevance
concerning those documents. If the BIA determines that such
a showing has been made, then it may give whatever weight it
deems appropriate to that evidence in light of all of the other
evidence presented. Liu, 372 F.3d at 534 n.9 (“[T]he BIA
may proceed on remand as it does with respect to any
evidentiary question, evaluating issues of materiality,
relevance, probity, and the general requirements of due
process.”).
3. Documents from Fujian Province
We next examine the documents from neighboring
areas within Zhu’s home province, Fujian. Zhu offered
documents that appear to come from Fujian’s government
website and other province level sources, 10 as well as internal
10
For example, Zhu submitted a print-out purportedly
from a Fujian government website page dated May 6, 2008,
titled “Answer to Robert Lin’s Inquiry: ‘Family Planning
Policy with Respect to People Returning to China from
Overseas,’” which gives an answer from Fujian’s Population
and Procreation Planning Committee, stating that the
13
government documents from other towns and counties within
Fujian, 11 that purport to describe population control campaign
sterilization policy applies to parents of two overseas-born
children returning to Fujian. App. 307-08.
11
For example, Zhu submitted the following evidence
that was unavailable at the time of her last motion to reopen:
a May 7, 2009 document allegedly issued by the Chang Le
City Population and Family Planning Leadership Group,
titled “Announcement on Diligently Implementing the
Population and Family Planning Work in May, June and
July,” which instructs officials to “[s]upervise the
actualization of double check-ups, IUD installation,
sterilization and social child support fee collections” and
[s]peed up the sterilization process,” while explaining that
“[a]ll illegal extra pregnancies should be inducted or
terminated.” App. 401-03; a December 2, 2009 document
purportedly issued by the Family Planning Leading Group of
Tantou Town, titled “Notice of Strengthening of Family
Planning Work of Tantou Town,” which, in accordance with
“the spirit of ‘Population and Family Planning Regulations of
Fujian Province,’” confirms that “Chinese women whom
have given birth to two children in a foreign country . . .
[r]egardless of whether their children have foreign nationality
. . . are required to return to China and undergo sterilization
operation . . . [u]nless they change their nationalities,” App.
608; and a December 31, 2009 document supposedly issued
by the Leading Team of Population and Family Planning of
Chang Le City, titled “Notification with Regard to Serious
Implementation of Population and Family Planning Program
in October, November and December,” which instructs the
leading teams of various townships to “organize village
household cadres to prepare for an urgency effort on targets
14
details and policies. The BIA found documents outside Zhu’s
hometown and county inapplicable to Zhu, and hence
irrelevant. The BIA’s treatment of this evidence is
inconsistent with its past decisions wherein it allowed a
petitioner to establish eligibility for relief based upon
evidence that the births of her children “violated family
planning policies in that alien’s local province, municipality,
or other locally-defined area.” In re J-H-S-, 24 I. & N. Dec.
196, 197-98 (BIA 2007); cf. Shao v. Mukasey, 546 F.3d 138,
142 (2d Cir. 2008) (noting the BIA acknowledges the local
nature of family planning enforcement in China). Moreover,
the BIA inexplicably found the information in these
documents to be of no value yet found information in U.S.
country reports describing activities in areas outside of Zhu’s
home region, as described below, worthy of consideration.
Because the BIA did not explain why it did not consider
Zhu’s evidence from other areas within her home province of
Fujian—some of which are within 30 kilometers of her
hometown—and which may corroborate her claim, we will
remand for the BIA to consider whether the documents from
Zhu’s province are authentic and relevant, and, if they are,
why they do not warrant reopening the proceedings. 12
who have failed to carry out long-term contraceptive
measures,” “strictly fulfill any proposed sterilization duty,”
and “[s]trengthen critical remedial measures” by
“implementation of induced labor operation.” App. 852.
12
This directive is not tantamount to requiring that the
BIA grant the motion to reopen. Rather, it is a directive to
explain if the proponent has shown that the documents are
relevant and authentic and, if so, whether they support the
motion to reopen.
15
We will, however, not disturb the decision to reject the
expert opinion that Zhu offered to authenticate four
documents purportedly from the Chang Le City Population
and Family Planning Leadership Group, Chinese Communist
Party Chang Le City Shou Zhan Township Committee, and
the Shou Zhan Township Population and Family Planning
Leadership Group. Zhu’s expert, Dr. Flora Sapio, 13 opined
that the documents were authentic based on their language,
style, format, and internal coherence. She identified two of
the documents as notices, and concluded, based on their
bureaucratic language and the persons to whom they are
addressed, that one is from an organ of the state and one is
from the party committee of Shouzhan Township in Fujian
Province. She then explained that the other two documents
are likely internal memoranda that administrative law
enforcement officials used or possibly distributed to residents,
given their simple language and terse tone. The BIA
discounted Dr. Sapio’s expert opinion because it found it
“speculates as to the credibility of the authors and the
circumstances under which the documents were created.”
App. 6.
As stated earlier, we review the BIA’s evidentiary
ruling deferentially. Cheng, 623 F.3d at 182. Under this
13
Dr. Sapio received her doctorate in History and
Civilization of the Far East, and describes herself as a
Chinese law scholar. She has published articles about
corruption and economic crimes in China. She explained
that, as part of her research on “legal lawlessness,” App. 468,
she examines Chinese legal and political documents, and the
first operation she normally performs on any document
source is assessing whether or not it is genuine.
16
deferential standard, we cannot say that the BIA abused its
discretion in discounting the expert’s opinion. Other than
saying that she received the documents from Zhu’s counsel,
Dr. Sapio does not provide any information concerning how
or from whom the documents were obtained. Moreover,
while Dr. Sapio explained why the presence or absence of
serial numbers, the paper size, headings, interlinear spaces,
margins, main body of text, official seals, filing information,
and classification level suggest that they are authentic
documents from government entities, she provided no
statements that show she is familiar with official seals or
serial numbers used by the purported sources of these
documents such that a factfinder could determine that the
document comes from the entity associated with the seal.
Thus, the BIA had no information upon which to determine
the source of these four documents other than the linguistic
analysis on which Dr. Sapio asked the BIA to rely. Unlike
other evidence it inexplicably discounted, the BIA explained
why it rejected reliance on the expert’s opinion. This
explanation showed that the BIA considered the documents
and the opinion and found that it lacked a basis on which to
conclude that the documents came from the entities listed on
them. For these reasons, we will not disturb the BIA’s
decision not to rely upon Dr. Sapio’s expert opinion. 14
B. U.S. Government Documents
14
As the Seventh Circuit noted, the BIA’s rejection of
Dr. Sapio’s expert opinion has been discussed in at least
nineteen appellate cases from six circuits, and not once has a
court of appeals found the BIA’s rejection of the expert report
to constitute an abuse of discretion. See Ni, 715 F.3d at 625.
17
Finally, we examine the BIA’s treatment of documents
from components of the U.S. government. In this case, there
is no indication that the BIA misunderstood its authority to
consider such documents, but it appears it did not give full
consideration to their contents. The BIA found that the 2009
and 2010 Annual Reports of the Congressional-Executive
Commission on China (“CECC”), 15 the 2007 Profile, and
State Department reports from 1994, 1995, 1998, 2004, and
2005 16 indicated 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 [China’s] family planning
policy.” App. 5. The BIA then concluded that this evidence
“is not sufficient to demonstrate that the respondent will be
15
The CECC is a body created by Congress with the
legislative mandate to monitor human rights and the
development of the rule of law in China. It is composed of
nine Senators, nine Members of the House of
Representatives, and five senior Administration officials
appointed by the President. See http://www.cecc.gov/about.
The CECC reports “are pertinent official publications of the
federal government.” Chen, 715 F.3d at 209.
16
These other State Department reports are titled:
“China – Country Conditions and Comments on Asylum
Application,” dated December 20, 1994, App. 1125-44;
“China – Country Conditions and Comments on Asylum
Application,” dated December 11, 1995, App. 1051-74;
“China: Profile of Asylum Claims and Country Conditions,”
dated April 14, 1998, App. 1076-89; “China: Profile of
Asylum Claims and Country Conditions,” dated June 2004,
App. 1091-99; and “China: Profile of Asylum Claims and
Country Conditions,” dated October 2005, App. 1101-10.
18
subjected to sterilization.” Id. 17 While the BIA recited a
number of social and economic actions that China takes to
enforce its population control policies, it seemingly ignored
statements in the 2009 and 2010 CECC Reports concerning
“forced abortions” and “coerced abortions and
18
sterilizations.” App. 111, 140, 142-43. Like our sister
circuit, who criticized an identical BIA conclusion 19 about
enforcement methods, we too question “[w]hy the BIA found
the [CECC] Reports’ discussion of certain ‘administrative
punishments’ and coercive tactics to be persuasive, but
17
The BIA also held that Zhu had failed to show that
she would face economic harm amounting to persecution
because she had not offered information to establish her
current financial situation. App. 6 (citing to In re T-Z-, 24 I.
& N. Dec. 163 (BIA 2007) (no showing of economic
sanctions amounting to persecution where the record contains
scant information concerning the applicant’s financial
situation)). On appeal, Zhu does reference the fines she
would face if forced to return to China, but she does not
challenge the BIA’s ruling that failure to provide evidence of
her financial situation dooms that argument.
18
Also curious is the BIA’s reliance on evidence of the
enforcement methods described in the documents from 1994
to 2004, particularly where the BIA is only allowed to grant a
motion to reopen if presented with new or previously
unavailable evidence. 8 C.F.R. § 1003.2(c)(3)(ii).
19
The BIA in Ni also ignored the portions of the
CECC reports that described abortion and sterilization
activities and used language identical to the language the BIA
used in Zhu’s case in reaching its conclusions about what
could be drawn from these documents. Compare Ni, 715
F.3d at 627 with App. 5.
19
[apparently] found the Reports’ discussion of forced
sterilizations and abortions in Fujian Province not to be
persuasive . . . .” Ni, 715 F.3d at 627. Moreover, the BIA’s
treatment of these reports is inconsistent with its precedent
that requires a comparison of current country conditions with
those that existed at the time of the hearing on the merits of
the petition before the IJ. See In re S-Y-G, 24 I. & N. Dec.
247, 253 (BIA 2007). Because these reports materially bear
on Zhu’s claim and it appears that the BIA only considered
parts of them, and in light of the BIA’s duty to consider
material evidence and explain why it does or does not support
the position of a party, 20 Zheng, 549 F.3d at 268, we will
remand to the BIA for its full consideration of these reports. 21
20
We do note that, despite Zhu’s arguments to the
contrary, the BIA did not err in continuing to place great
weight on the 2007 Profile. See Ambartsoumian v. Ashcroft,
388 F.3d 85, 89 (3d Cir. 2004) (holding that “State
Department reports may constitute ‘substantial evidence’ for
the purposes of reviewing immigration decisions”); Lal v.
INS, 255 F.3d 998, 1023 (9th Cir. 2001) (describing State
Department country reports as the “most appropriate and
perhaps best resource” on country conditions (internal
quotation marks omitted)). The BIA explained that the
evidence Zhu presented did not “support [Zhu’s] claim that
the 2007 Profile is heavily reliant upon information provided
by the Chinese government,” because it found that “State
Department reports . . . cite multiple sources of information.”
App. 5. That said, on remand, the BIA should provide an
explanation for rejecting Zhu’s assertion that more recent
CECC reports show an increase in the use of “coercive
measures” to enforce the population control policies and thus,
from her perspective, suggest that the 2007 Profile is out-of-
20
In short, like the Seventh Circuit, we conclude that the
BIA’s treatment of the U.S. Government and foreign
government evidence was “perfunctory,” Ni, 715 F.3d at 627,
and, as a result, 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.” Id. at 631
(internal quotation marks and citation omitted); see also Chen
v. Holder, --- F.3d ---, No. 12-2279, 2014 WL 448444, at *7
(4th Cir. Feb. 5, 2014) (remanding because the IJ and BIA
failed to reconcile or explain why the 2009 CECC Report is
“less persuasive” than the 2007 Profile); Zheng, 549 F.3d at
266 (holding that “the BIA must actually consider the
evidence and argument that a party presents” (internal
quotation marks and citation omitted)); Guo v. Gonzales, 463
F.3d 109, 115 (2d Cir. 2006) (holding that the BIA has “a
duty to explicitly consider any country conditions evidence
submitted by an applicant that materially bears on his claim,”
and a “similar, if not greater, duty arises in the context of
motions to reopen based on changed country conditions”
(internal quotation marks and citations omitted)); Yang v.
Gonzales, 427 F.3d 1117, 1122 (8th Cir. 2005) (“If an agency
makes a finding of fact without mentioning or analyzing
significant evidence, its decision should be reconsidered.”
(internal quotation marks and citation omitted)).
date. If the BIA is providing greater weight to State
Department reports over reports from other United States
government entities, then it should explain why it is doing so.
21
This is not to suggest that the CECC reports alone
are necessarily sufficient to demonstrate a material change in
country conditions. Ni, 715 F.3d at 627.
21
IV.
Because the BIA did not meaningfully address many
of the documents Zhu presented, we will remand to the BIA
for a more thorough review and explanation as to whether
Zhu’s evidence is authentic and, if so, whether it establishes a
material change in country conditions. We are not suggesting
that the evidence is authentic or sufficient. Rather, we will
remand for the BIA to meaningfully review the evidence,
which may yield a different result or a further explanation for
the BIA’s decision. 22
For all of these reasons, we will grant the petition for
review, vacate the order denying the motion to reopen, and
remand the case to the BIA for further proceedings consistent
with this opinion.
22
As a result, we will not address the BIA’s
conclusion that the evidence was insufficient to establish a
material change in country conditions.
22