Qin Wen Zheng v. Gonzales

05-5741-ag
Qin Wen Zheng v. Gonzales
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2006
4 (Submitted: March 21, 2007 Decided: August 31, 2007)
5 Docket No. 05-5741-ag
6
7 -------------------------------------
8 QIN WEN ZHENG,
9 Petitioner,
10 - v -
11 ALBERTO R. GONZALES,
12 Attorney General of the United States
13 Respondent.
14 -------------------------------------
15 Before: SACK, PARKER, and HALL, Circuit Judges.
16 Petition for review of a decision by the Board of
17 Immigration Appeals denying the petitioner's motion to reopen his
18 asylum proceedings. The Board did not abuse its discretion in
19 determining that the petitioner failed to demonstrate changed
20 country conditions.
21 Petition denied.
22 Michael Brown, New York, NY, for
23 Petitioner.
24 Margaret A. Hickey, Assistant United
25 States Attorney for the Northern
26 District of Illinois (Patrick J.
27 Fitzgerald, United States Attorney,
28 Craig Oswald, Assistant United States
29 Attorney, on the brief), Chicago, IL,
30 for Respondent.
1 SACK, Circuit Judge:
2 Qin Wen Zheng, a Chinese citizen from Changle City in
3 the Fujian Province of China, petitions for review of a decision
4 by the Board of Immigration Appeals ("BIA") denying his second
5 motion to reopen proceedings in his case as untimely and
6 numerically barred under 8 C.F.R. § 1003.2(c)(2). In re Qin Wen
7 Zheng, No. A 77 224 430 (B.I.A. Oct. 18, 2005); see also 8 C.F.R.
8 § 1003.2(c)(3)(ii) (allowing for one motion to reopen filed
9 within ninety days of the final agency decision). Zheng contends
10 that the BIA wrongly determined that he failed to demonstrate
11 changed country conditions in China that might exempt the motion
12 from those bars. As particularly relevant here, Zheng argues
13 that the BIA erred in rejecting for lack of authentication a
14 purported notice from a municipal government in China threatening
15 him with "severe[] punish[ment]" if he did not abandon his
16 application for asylum and return to China forthwith.
17 BACKGROUND
18 Zheng arrived in the United States in July 1998. He
19 applied for asylum, withholding of removal, and relief under the
20 Convention Against Torture1 ("CAT") based on the alleged forced
21 sterilization of his wife under the Chinese family-planning
22 policy. At a hearing before Immigration Judge ("IJ") Adam
1
United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. See
also 8 C.F.R. § 208.16(c) (implementing regulations).
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1 Opaciuch, Zheng conceded removability. He testified and
2 submitted documentary evidence in support of his claims. On June
3 23, 2000, the IJ denied Zheng's requests for relief, determining
4 based on inconsistencies between his testimony and his prior
5 statements and other documentary evidence that Zheng's testimony
6 was not credible and that he therefore failed to meet his burdens
7 of proof. In re Qin Wen Zheng, No. A 77 224 430 (Immig. Ct. N.Y.
8 City June 23, 2000). Zheng appealed to the BIA, which affirmed
9 the IJ's decision, without opinion, on November 21, 2002. In re
10 Qin Wen Zheng, No. A 77 224 430 (B.I.A. Nov. 21, 2002). Zheng
11 did not petition this Court for review of that decision.
12 In October 2003, Zheng filed a motion to reopen his
13 removal proceedings. He again argued the merits of his asylum
14 claim and submitted, inter alia, affidavits from, and photographs
15 of, his wife and children in China. On April 19, 2005, the BIA
16 denied the motion, finding that Zheng had filed the motion beyond
17 the ninety-day time limit and had failed to establish changed
18 circumstances that would permit a late filing. In re Qin Wen
19 Zheng, No. A 77 224 430 (B.I.A. Apr. 19, 2005). Again, Zheng
20 refrained from petitioning this Court for review.
21 In August 2005, Zheng filed a second motion to reopen,
22 claiming that he was newly eligible for relief based on changed
23 country conditions in China. He submitted a variety of documents
24 in support of his motion, including various country reports from
25 the United States Department of State, the governments of the
26 United Kingdom and Canada, and Amnesty International; a newspaper
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1 article; an internet printout of a Chinese law addressing the
2 entry and exit of citizens to and from China; and a copy of a
3 decision by the United States Court of Appeals for the Ninth
4 Circuit. He also submitted a notice allegedly sent to his wife
5 from officials of his local village that, he contends,
6 demonstrates that conditions had materially changed there.
7 The Village Notice
8 The notice that Zheng submitted was in Chinese
9 accompanied by an English translation. Entitled "Notice" (we
10 refer to it hereinafter as such), it is dated June 26, 2005, and
11 its letterhead in the submitted English translation reads "Long
12 Tian Villager Commission, Guhuai Town, Changle City, Fujian
13 Province, China." It also appears to have a stamp on the lower
14 right quadrant which is translated to read "Long Tian Villager
15 Commission, Guhuai Town, Changle City." As translated, the
16 Notice reads in its entirety:
17 The government is currently investigating those
18 people who had left the country illegally and
19 applied for asylum in overseas. Their behaviors
20 has damaged our countries' international image.
21 From the report we received, we found out that
22 your husband, Zheng Qin Wen is among those people.
23 He not only violated the family planning policy in
24 China, but also illegally left China and went to
25 the United States wherein he did something
26 detrimental to our country's dignity. It is
27 hereby ordered that you must persuade your husband
28 Zheng Qin Wen immediately stopping his asylum
29 application in overseas, coming back to China and
30 surrendering himself to the government to obtain a
31 lenient treatment. Otherwise, he will be severely
32 punished if he is arrested.
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1 The Notice was supported solely, and only to some extent, by an
2 affidavit from Zheng's wife. Also translated from Chinese to
3 English,2 the affidavit rehearses the underlying assertions of
4 Zheng's asylum application. The affidavit also attempts to
5 provide further context to the local government's crackdown
6 against Chinese citizens who apply for asylum elsewhere, and
7 generally reiterates the message and substance of the Notice. It
8 does not include any reference to the Notice.
9 The BIA Opinion
10 The BIA was unpersuaded by Zheng's submission. See In
11 re Qin Wen Zheng, No. A 77 224 430 (B.I.A. Oct. 18, 2005) (per
12 curiam). "Much of the evidence now presented, including the
13 wife's affidavit and background material," it said, "was not
14 previously unavailable or is not new. . . . The new country
15 reports have not been highlighted. . . ." Id. The BIA
16 continued: "[T]he purported notice from the respondent's home
17 town has not been authenticated, a fact which is relevant in the
18 context of this case in light of the [IJ's] adverse credibility
19 finding." Id. The agency denied Zheng's motion to reopen on the
20 grounds that his evidentiary submissions failed to demonstrate
21 changed country conditions, which could have excepted the motion
22 from the time and numerical bars that otherwise apply.
23 Zheng petitions for review.
2
Although the text of the "Translation Certificate" refers
to Lawrence He as the translator, the document is signed by Allen
Chan.
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1 DISCUSSION
2 I. Standard and Scope of Review
3 Zheng's petition to this Court, filed on October 26,
4 2005, is timely only as it pertains to the BIA's denial of his
5 second motion to reopen on October 18, 2005. See 8 U.S.C.
6 § 1252(b)(1) (requiring a petition for review to be filed no
7 later than thirty days after the date of the order to be
8 challenged). We therefore may review no more than that denial.
9 See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam)
10 (noting that we are precluded from reviewing the underlying
11 merits of an asylum claim on a motion to reopen).
12 It is undisputed that both the time and numerical bars
13 pertaining to motions to reopen apply here. See 8 U.S.C.
14 § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).3 Zheng argues,
3
The applicable portion of section 1229a provides:
(7) Motions to reopen.
(A) In general. An alien may file one motion to
reopen proceedings under this section . . . .
. . . .
(C) Deadline.
(i) In general. Except as provided in this
subparagraph, the motion to reopen shall be
filed within 90 days of the date of entry of
a final administrative order of removal.
(ii) Asylum. There is no time limit on the
filing of a motion to reopen if the basis of
the motion is to apply for relief under
sections 208 or 241(b)(3) [8 USCS §§ 1158 or
1251(b)(3)] and 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
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1 however, that he has demonstrated the existence of materially
2 changed conditions in China affecting the possibility of his
3 persecution there should he be forced to return, which would
4 satisfy one of four possible exceptions to those limitations.
5 See 8 C.F.R. § 1003.2(c)(3)(ii) ("[T]ime and numerical
6 limitations . . . shall not apply to a motion to reopen
7 proceedings . . . based on changed circumstances arising in the
8 country of nationality or in the country to which deportation has
9 been ordered, if such evidence is material and was not available
10 and could not have been discovered or presented at the previous
11 hearing.").
12 "A motion to reopen proceedings [must] state the new
13 facts that will be proven at a hearing to be held if the motion
14 is granted and shall be supported by affidavits or other
15 evidentiary material." 8 C.F.R. § 1003.2(c)(1). Such a motion
16 "[may] not be granted unless it appears to the [BIA] that
17 evidence sought to be offered is material and was not available
18 and could not have been discovered or presented at the former
19 hearing." Id.20 "We review the decision to deny a motion to reopen
21 removal proceedings for abuse of discretion." Bhanot v.
22 Chertoff, 474 F.3d 71, 73 (2d Cir. 2007) (per curiam). The BIA
23 abuses its discretion if its decision "provides no rational
have been discovered or presented at the
previous proceeding.
8 U.S.C. § 1229a(c)(7)(A), (C).
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1 explanation, inexplicably departs from established policies, is
2 devoid of any reasoning, or contains only summary or conclusory
3 statements." Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.
4 2006) (internal quotation marks and citation omitted).
5 II. The Notice
6 The propriety of the BIA's decision to deny Zheng's
7 second motion to reopen depends on its conclusion that Zheng had
8 not established a change in country conditions, which in turn was
9 based in part on the BIA's refusal to credit the Notice. The BIA
10 noted that the Notice lacked authentication, which, "in light of
11 the [IJ's] adverse credibility finding," prompted the BIA to
12 reject the document's authenticity. Citing no authority, Zheng
13 argues that "the Board committed a legal error in giving no
14 weight to the merit of the evidence[,] instead focusing on the
15 admissibility of the evidence." Pet. Br. at 7.
16 We conclude that the BIA, in relying on the adverse
17 credibility determination made by the IJ following Zheng's asylum
18 hearing, reasonably rejected the authenticity of the Notice. In
19 Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007), we found that the
20 doctrine of falsus in uno, falsus in omnibus supported a general
21 adverse credibility finding based on a determination that the
22 petitioner had submitted a fraudulent document. Id. at 170. In
23 reaching that conclusion, we noted that "a single false document
24 or a single instance of false testimony may (if attributable to
25 the petitioner) infect the balance of the alien's uncorroborated
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1 or unauthenticated evidence." Id. Similarly, in Borovikova v.
2 U.S. Dep't of Justice, 435 F.3d 151 (2d Cir. 2006), we decided
3 that the conclusion that a document was fraudulent supported a
4 general finding of adverse credibility sufficient to reject an
5 asylum application. Id. at 157-58. The BIA's use here of the
6 IJ's unchallenged conclusion that Zheng was not credible in
7 support of its refusal to credit the authenticity of the Notice
8 was similarly appropriate.
9 The BIA's decision to reject the Notice was further
10 buttressed by the inconsistencies between it and the "new country
11 reports" that Zheng submitted in an attempt to demonstrate that
12 country conditions had changed adversely and materially. The
13 2004 Department of State report on China submitted by Zheng
14 states:
15 The Chinese Government accepts the
16 repatriation of citizens who have entered
17 other countries or territories illegally. In
18 the past several years, hundreds of Chinese
19 illegal immigrants have been returned from
20 the United States, and U.S. Embassy officials
21 have been in contact with scores of them. In
22 most cases, returnees are detained long
23 enough for relatives to arrange their travel
24 home. Fines are rare. U.S. officials in
25 China have not confirmed any cases of abuse
26 of persons returned to China from the United
27 States for illegal entry. Persons identified
28 as organizers or enforcers of illegal migrant
29 trafficking are liable to face criminal
30 prosecution in China.
31 China: Profile of Asylum Claims and Country Conditions, U.S.
32 Department of State, Bureau of Democracy, Human Rights and Labor,
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1 at 33 (June 2004).4 Although the BIA is required to consider an
2 applicant's countervailing evidence in addition to State
3 Department reports, see Cao He Lin v. U.S. Dep't of Justice, 428
4 F.3d 391, 403 (2d Cir. 2005), the BIA does not abuse its
5 discretion in crediting the State Department reports in the face
6 of uncorroborated anecdotal evidence to the contrary, Wei Guang
7 Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir. 2006); see also Mu
8 Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir.
9 2005). Apart from the Notice, we have found no evidence in the
10 record indicating that Zheng's act of leaving China to seek
11 asylum in the United States without permission from Chinese
12 authorities would, without more, result in Zheng's persecution.
13 Although Zheng does not mention the case, his argument
14 raises a question akin to one of those we examined in Cao He Lin.
15 There, we addressed the denial by an immigration judge of an
16 application for asylum and concluded that the IJ errs if he or
17 she rejects a document supporting the application solely because
4
The petitioner also submitted a September 1999 report
from the Immigration and Refugee Board of Canada, which examines
the treatment of illegal emigrants who return to Fujian province.
Although the BIA properly disregarded this submission because it
was available to the petitioner at the time of his original
asylum application, the report focuses on the illegal activities
of immigrant smugglers, known as "snakeheads," not the emigrants
themselves. The lone discussion of the role of the Chinese
government centers on its response to the snakeheads' activities,
and its attempt to crackdown on the improper treatment of Chinese
returnees by the snakeheads. The provisions of Chinese law cited
in the document focus primarily on those who facilitate the
illegal exit from and entry into the country, and on any citizens
who obtain immigration documents through illegal means.
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1 it was not properly authenticated under the BIA's regulations.5
2 See Cao He Lin, 428 F.3d at 405. We reasoned that "[b]ecause
3 asylum applicants can not always reasonably be expected to have
4 an authenticated document from an alleged persecutor," id., 428
5 F.3d at 404 (internal citation and quotation marks omitted), the
6 BIA's authentication regulation "is not the exclusive means of
7 authenticating records before an immigration judge," id.; accord
8 Xue Deng Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir. 2007)
9 (noting that the IJ commits error when it "reject[s] . . .
10 documents solely because they were not authenticated in strict
11 conformity with the regulation"); Yong Ting Yan v. Gonzales, 438
12 F.3d 1249, 1256 n.7 (10th Cir. 2006) ("[C]ourts generally do not
13 view the alien's failure to obtain authentication as requiring
14 the rejection of a document." (citing Cao He Lin, 428 F.3d at
15 404)); see also Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001)
16 (noting that "[t]he procedure specified in 8 C.F.R. § 287.617 provides one, but not the exclusive, method" of authentication
18 (internal quotation marks and citation omitted)).
19 As we have discussed, however, the BIA's refusal to
20 credit the Notice in this case did not depend on the lack of
21 official authentication consonant with BIA regulations alone.
22 The BIA's rejection of the Notice's authenticity was based
5
Regulations governing authentication of official records
and public documents in BIA proceedings include the requirement,
generally, that specified foreign documents must be
authenticated, either as official documents or as an attested
copy authorized by both foreign-country officials and the United
States Foreign Service. 8 C.F.R. § 287.6.
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1 substantially on legitimate concerns about Zheng's credibility
2 and contrary evidence in the record. That removes this case from
3 the teaching of Cao He Lin.6
4 We do not reach the question of whether the BIA might
5 err if it required strict compliance with 8 C.F.R. § 287.6 for
6 foreign documents submitted in support of motions to reopen. We
7 recognize that it may not be possible for an applicant filing a
8 motion to reopen to obtain from a foreign government valid and
9 proper authentication of a document such as the Notice, which
10 purports to threaten persecution of an individual seeking asylum
11 elsewhere, even if the evidence supporting its authenticity were
6
We note further that the context of the immigration
proceeding was crucially different in Cao He Lin, which addressed
a petition for review of the denial of an asylum application. An
applicant for asylum may meet his burden of proof based entirely
on his testimony alone; corroborating documents are not required.
See 8 C.F.R. § 1208.13(a) ("The testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof
without corroboration."). Corroborating evidence is required in
an asylum proceeding only "where it would reasonably be
expected." Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000). A
motion to reopen based on changed country conditions, by
contrast, depends solely on a showing of previously unavailable,
material documentary evidence in support of the underlying
proceeding. The Board may consider only the documents submitted
to establish that conditions have indeed changed critically since
the applicant's departure from his home country. The concerns
motivating the Cao He Lin panel are largely absent. The
petitioner need not have -- indeed could not have -- brought the
required documents with him given the requirement that the
evidence must have been previously unavailable, see Wei Guang
Wang, 437 F.3d at 274 (concluding that evidence obtained before
the petitioner left China could not support the BIA's grant of a
motion to reopen because such proof could not amount to "evidence
that 'is material and was not available and could not have been
discovered or presented at the previous hearing'" (quoting 8
C.F.R. § 1003.2(c)(3)(ii)), but the petitioner nevertheless must
present credible, documentary evidence in order for the BIA to
grant the motion.
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1 credible.7 We decide only that in this case the BIA did not abuse
2 its discretion in declining to consider a document --
3 questionable on its face, supported only by a spouse's affidavit,8
4 and not authenticated pursuant to regulation -- that attempts to
5 establish the sweeping proposition that subsequent to the date of
6 the petitioner's entry into the country and application for
7 asylum, country conditions had undergone a material adverse
8 change sufficient to affect his petition for asylum.
9 B. Other Evidence
10 The petitioner's other evidence, and arguments in
11 support thereof, are also unavailing. The BIA acted within its
12 discretion in determining that many of the documents submitted to
13 it were previously available and that the country reports alone
14 did not demonstrate changed country conditions. Zheng failed to
7
Conversely, we have found that a foreign government's
statement that a document is not authentic may be of limited
probative value. In Zhen Nan Lin v. U.S. Dep't of Justice, 459
F.3d 255, 269-70 (2d Cir. 2006) (finding unreliable a United
States Consular Report that relied entirely "on the opinions of
Chinese government officials who appear to have powerful
incentives to be less than candid on the subject of their
government's persecution of political dissidents" because
"[w]here . . . the document at issue, if authentic, is evidence
that a foreign government violated human rights, that
government's 'opinion' as to the document's authenticity is
obviously suspect and therefore of questionable probative
value").
8
To the extent that the wife's affidavit was submitted in
an effort to authenticate the Notice -- which is not clear from
the text of the affidavit, as it does not mention the Notice --
it fails to do so. In addition to the fact that it includes no
mention of the Notice, such as how, when and where the wife
received it, the affidavit merely reiterates the underlying
asylum arguments and the substance of the Notice.
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1 explain why any of the documents, which were dated from September
2 1999 to February 2004, could not have been submitted earlier.
3 CONCLUSION
4 The BIA did not abuse its discretion in denying the
5 motion to reopen. The petition is denied. Our review having
6 been completed, the petitioner's request for a stay of removal is
7 also denied.
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