Xiu Xia Zheng v. Holder

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1325
XIU XIA ZHENG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.
Michael Brown on brief for petitioner.
Jacob A. Bashyrov, Trial Attorney, United States Department of
Justice, Office of Immigration Litigation, Stuart F. Delery, Acting
Assistant Attorney General, Civil Division, and Francis W. Fraser,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.
February 11, 2013
Per curiam. Petitioner Xiu Xia Zheng seeks judicial
review of a decision by the Board of Immigration Appeals ("BIA")
denying her late-filed motion to reopen proceedings on her
application for political asylum. We hold that the BIA did not
abuse its discretion in holding that Zheng's untimely motion to
reopen, filed some seven years after denial of her asylum petition,
did not meet the exception to the 90-day filing requirement for
changed country conditions material to the claims for asylum.
Zheng left her home in China on September 7, 2000, and
journeyed to Detroit, Michigan, where she attempted to enter the
United States on someone else's passport. The Immigration and
Naturalization Service ("INS") detained Zheng at the airport and
then placed her in removal proceedings on the ground that she was
an arriving alien not in possession of a valid entry document. See
8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006). The INS paroled Zheng into
the United States under the custody of her father, who lived in
Boston, Massachusetts, and then transferred her case to that
jurisdiction.
Zheng admitted the INS's allegations and conceded her
removability. She then submitted an application for political
asylum. See id. § 1158. Zheng claimed that she feared persecution
if she returned to China due to her membership in the Roman
Catholic Church, which operates underground in China in defiance of
an official government prohibition. According to Zheng, she was
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kicked out of her school in China due to her religious beliefs, and
later was threatened and interrogated by the police after she had
her picture taken with a Catholic Archbishop. Zheng also applied
for withholding of removal and for protection under the United
Nations Convention Against Torture. See id. § 1231(b)(3)(A).
On September 18, 2002, in an oral decision, the
Immigration Judge ("IJ") found that Zheng had failed to meet her
burden of establishing a well-founded fear of future persecution in
China based on her religion, and so denied her application for
asylum. He emphasized that the rest of her family in China
practiced Roman Catholicism and attended church services without
any trouble from the government. The IJ also found that Zheng had
failed to establish her eligibility for withholding of removal or
protection under the Convention Against Torture. Zheng appealed
the IJ's decision to the BIA, which dismissed her appeal on May 13,
2004. Zheng subsequently filed a timely motion for reconsideration
with the BIA, which was also denied.1 Zheng, however, did not
leave the country, despite a final order of removal.
Seven years later, on August 25, 2011, Zheng, still in
the United States, filed a motion with the BIA to reopen her
removal proceedings based in part on a claimed change in country
1
The record does not indicate, nor does Zheng claim, that she
petitioned for review of the BIA's decision to this Court.
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conditions in China that was material to her asylum application.2
Ordinarily, Zheng would have to file a motion to reopen removal
proceedings within 90 days of the final order of removal. See id.
§ 1229a(c)(7)(C)(i). That time period had long since passed in
this case, since the previous proceedings concluded in May 2004.
However, there is no time limit on filing a motion to
reopen asylum proceedings if the motion "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." Id.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii) (2012). Zheng
carried the burden of demonstrating that her motion to reopen
should be granted. See INS v. Abudu, 485 U.S. 94, 110-11 (1988).
Her new evidence had to be material, which means it "would likely
change the result in the case," In re Coelho, 20 I. & N. Dec. 464,
473 (B.I.A. 1992), and also, "at a bare minimum, establish a prima
facie case sufficient to ground a claim of eligibility for the
2
Zheng also claimed that her personal circumstances had
changed, because she had married a lawful permanent resident of the
United States and given birth to two children in this country. She
further asserted that she was eligible for adjustment of status
based on an approved petition for an alien relative, I-130, filed
on her behalf by her husband. The BIA denied both claims, and its
decisions on those points are not at issue in this petition for
review.
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underlying substantive relief," Raza v. Gonzales, 484 F.3d 125, 128
(1st Cir. 2007).
Zheng's motion to reopen contained a sworn affidavit from
herself, an unsworn letter from her mother in China, a written
notice given to her mother by the Xiguan Village Committee in
Fujian Province, China, and several articles on recent country
conditions in China. According to Zheng, in March 2011 she mailed
a package containing religious materials to her relatives in China,
which included pictures showing her participation in Roman Catholic
activities and a letter criticizing the Chinese government's
restrictions on religion and human rights and stating that she had
applied unsuccessfully for asylum in the United States. Allegedly,
Chinese customs officials intercepted the package and local
officials went to her mother's house to tell her that Zheng was
"participating in the counter-revolution[ary] church activities in
America." According to Zheng, the officials gave her mother a
written notice from the Village Committee ordering her to instruct
Zheng to cease applying for asylum in the United States, to stop
her "reactionary conduct of inciting Chinese Catholics to become
resentful towards the Chinese government's current policy on
religion," and to "immediately return to China to accept stringent
punishment from the government." The notice warned that if Zheng
did not return voluntarily to China to accept punishment, once she
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was caught she "not only would be stringently punished, but would
also be imprisoned."
On February 23, 2012, the BIA denied Zheng's motion to
reopen. It found that her motion was untimely because Zheng's
evidence was not material to her case, so that Zheng had not
carried her burden of showing the changed country circumstances
exception applied. Specifically, the BIA found that Zheng's
documentary evidence was merely speculative as to what will happen
to her in China, and that it did not demonstrate that her possible
treatment in China, including arrest, would amount to persecution.
It noted that the letter from Zheng's mother was unsworn and that
the written notice from the Village Committee was unauthenticated.
The BIA concluded that this evidence was not sufficient to meet
Zheng's burden to show that the result of her application for
asylum would likely change if the proceedings were reopened. The
BIA also found that Zheng's background evidence showed no more than
that the Chinese government continued to take repressive actions
against Roman Catholics, and did not show that conditions for Roman
Catholics in China had materially worsened since her previous
hearing in 2002.
Zheng now petitions for review of the BIA's denial of her
motion to reopen. We review the BIA's decision on this matter for
abuse of discretion, see 8 C.F.R. § 1003.2(a); INS v. Doherty, 502
U.S. 314, 323-24 (1992); Tandayu v. Mukasey, 521 F.3d 97, 100 (1st
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Cir. 2008), which means we will uphold its decision "unless the
complaining party can show that the BIA committed an error of law
or exercised its judgment in an arbitrary, capricious, or
irrational way," Tandayu, 521 F.3d at 100 (quoting Raza, 484 F.3d
at 127) (internal quotation marks omitted). Our review is "highly
deferential, focusing on the rationality of the decision to deny
reconsideration and reopening, not on the merits per se, of the
underlying claim." Abdullah v. Gonzales, 461 F.3d 92, 99 (1st Cir.
2006).
We reject Zheng's claim that the BIA erred by discounting
the evidentiary value of the notice from the Xiguan Village
Committee because it was unauthenticated. Federal regulations
provide that government documents from China may be authenticated
"by an official publication thereof, or by a copy attested by an
officer so authorized." 8 C.F.R. § 1287.6(b); see Jiang v.
Gonzales, 474 F.3d 25, 29 n.4 (1st Cir. 2007). Zheng argues that
the BIA may not exclude documentary evidence solely because it has
not been authenticated pursuant to § 1287.6.
We have acknowledged that § 1287.6 "offers only a method
-- not the exclusive method -- for authenticating a record in an
asylum case," and that noncompliance with § 1287.6 "is not an
absolute bar to the admissibility of a foreign document in an
asylum hearing." Jiang, 474 F.3d at 29. But when the BIA
considers a motion to reopen proceedings, it has the discretion to
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afford less evidentiary weight to unauthenticated government
documents from China, see Le Bin Zhu v. Holder, 622 F.3d 87, 92
(1st Cir. 2010); see also Jiang, 474 F.3d at 29 (same rule for
IJs), and here the BIA did not exclude the Village Committee notice
but simply found it less persuasive. Given Zheng's position, it
likely would have been quite difficult for her to obtain a
notarized copy of the notice in accordance with § 1287.6, but our
cases make clear that alternative authentication methods would have
been acceptable. "[A]uthentication requires nothing more than
proof that a document or thing is what it purports to be and, even
though the Federal Rules of Evidence spell out various options, the
rules also stress that these options are not exclusive and the
central condition can be proved in any way that makes sense in the
circumstances." Yongo v. INS, 355 F.3d 27, 30-31 (1st Cir. 2004)
(citing Fed. R. Evid. 901-902). For instance, in this case, Zheng
could have proved that the notice was what she said it was by
submitting evidence that the "Fujian Province Changle City Wuhang
Town Xiguan Village Committee" actually existed and had law
enforcement responsibilities or by comparing the seal on her notice
to the seals on other notices issued by the Committee. But Zheng
made no such alternate attempt to authenticate the notice, and
§ 1287.6 includes no exceptions to the authentication requirement.
The BIA's role in determining whether the petitioner's evidence is
material pursuant to 8 U.S.C. § 1229a(c)(7)(C)(ii) is, in effect,
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to evaluate whether the evidence presented would change the results
of the case if it were reopened. Because determining the
authenticity of and weight to be given to the documents is within
this analysis, it is also within the BIA's discretion when it
considers a motion to reopen. We cannot say this was an abuse of
discretion.
The crux of Zheng's challenge is to the BIA's conclusion
that she failed to establish that she would be subject to treatment
severe enough to constitute "persecution" if she returned to China,
and thus that the evidence she brought forth to establish changed
circumstances was not material. Zheng argues that her mother's
letter and the notice from the Village Committee, with its language
that Zheng "not only would be stringently punished, but would also
be imprisoned", together demonstrate that she faces the threat of
arrest and imprisonment, and that this threat rises to the level of
"persecution" under the asylum statute. Id. § 1101(a)(42)(A).
While neither Zheng's brief nor the record indicates what
"stringent punishment" means in this context, it could mean
punishment that is severe, strict, and rigorous. See Merriam
Webster's Collegiate Dictionary 1165 (10th ed. 1993). But Zheng
gave the BIA nothing to indicate where along the continuum this
would lie, much less its relationship to persecution.
The BIA defines persecution as "a threat to the life or
freedom of, or the infliction of suffering or harm upon, those who
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differ in a way regarded as offensive." In re Acosta, 19 I. & N.
Dec. 211, 222 (B.I.A. 1985). To count as "persecution" within the
meaning of the asylum statute, an experience "must rise above
unpleasantness, harassment, and even basic suffering." Nelson v.
INS, 232 F.3d 258, 263 (1st Cir. 2000). In general, brief periods
of detention, without accompanying physical abuse, have not been
found to constitute "persecution." See Li Fang Chen v. Filip, 308
F. App'x 502, 503 (2d Cir. 2009); Ping Zheng v. Gonzales, 189 F.
App'x 564, 567-68 (7th Cir. 2006); see also Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (collecting cases). In this circuit,
we have held that detention lasting seven days, on its own, does
not rise to the level of persecution, Jiang v. Gonzales, 156 F.
App'x 336, 341 (1st Cir. 2005), and our sister circuits have
concluded that much longer periods of time, even when accompanied
by some physical abuse, do not qualify as persecution under the
asylum statute. See, e.g., Jian Yong Yang v. Att'y Gen. of the
United States, 442 F. App'x 668, 671 (3d Cir. 2011) (19 days of
detention and one-minute beating); Ly v. Holder, 421 F. App'x 575,
576-77 (6th Cir. 2011) (thirty days of detention in "grueling"
conditions); Luxun Chen v. Att'y Gen. of the United States, 393 F.
App'x 959, 960 (3d Cir. 2010) (three days of detention during which
detainee was punched, kicked, and given little to eat); Li Qin Lin
v. Att'y Gen. of the United States, 386 F. App'x 126, 128-29 (3d
Cir. 2010) (eight days of detention with inadequate food and a
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single, ten-minute beating); Xinlu Wang v. Att'y Gen. of the
United States, 338 F. App'x 809, 812 (11th Cir. 2009) (three days
of detention with daily beatings).
Zheng's evidence suggests that she may be arrested and
imprisoned if she returns to China, but it does not indicate how
long her detention would last, nor does it intimate that she would
be subject to any physical abuse. Aside from the Village Committee
notice, Zheng's evidence primarily consisted of "self serving
affidavits from petitioner and her immediate family [which] are of
limited evidentiary value." Zheng v. Mukasey, 546 F.3d 70, 72 (1st
Cir. 2008); see also Le Bin Zhu v. Holder, 622 F.3d 87, 92 (1st
Cir. 2010). The reference to "stringent punishment"3 in the
Village Committee notice is troubling, but in the absence of other
indications that she would be subject to treatment constituting
persecution -- for instance, evidence of previous incidents in
which receipt of similar notices was followed by actual
persecution, or evidence that this language had a given meaning
supporting her claim -- it was not arbitrary for the BIA to find
that Zheng had not met her burden. Zheng's evidence is speculative
as to what punishment she would face upon being returned to China,
and she bears a "heavy burden" of demonstrating that the outcome of
her asylum proceedings are likely to change if they are reopened.
3
From context the "stringent punishment" appears to refer to
less than imprisonment.
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See Abudu, 485 U.S. at 110; Coelho, 20 I. & N. Dec. at 473. Zheng
failed to meet that burden. Again, we cannot say the BIA abused
its discretion.
Alternatively, Zheng alleges that the BIA neglected to
assess specifically whether her evidence was previously
unavailable, and whether the Chinese government's negative reaction
to her letter could amount to a change in country circumstances.
But so long as the BIA "has given reasoned consideration to the
petition, and made adequate findings, we will not require that it
address specifically each claim the petitioner made or each piece
of evidence the petitioner presented." Morales v. INS, 208 F.3d
323, 328 (1st Cir. 2000) (quoting Martinez v. INS, 970 F.2d 973,
976 (1st Cir. 1992) (internal quotation mark omitted). The BIA did
so here.
Finally, we reject Zheng's argument that the BIA should
have granted her motion to reopen proceedings because she has
established prima facie eligibility for asylum. The BIA did not
reach that issue and it need not have done so. See Smith v.
Holder, 627 F.3d 427, 433-34 (1st Cir. 2010).
The petition for relief is denied.
So ordered.
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