Qiu Chen v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0527n.06
No. 08-4188
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
QIU HUA CHEN, )
Aug 18, 2010
LEONARD GREEN, Clerk
)
Petitioner, )
)
v. ) On Petition for Review of a Final
) Order of the Board of Immigration
ERIC H. HOLDER, JR., ) Appeals
)
Respondent. )
Before: BOGGS, MOORE, and GIBSON, Circuit Judges.*
BOGGS, Circuit Judge. Qiu Hua Chen, a native of China’s Fujian Province, petitions this
court for review of a decision of the Board of Immigration Appeals (“BIA”) denying her motion to
reopen her removal proceedings to apply for asylum based on changed country conditions. Chen’s
motion alleged that, following the denial of her original asylum application, Chinese officials had
intensified their enforcement of coercive family-planning regulations. Chen’s motion also alleged
that, because she had given birth to two children in the United States, she would be forcibly sterilized
if she were returned to China. Holding that she had failed to demonstrate materially changed country
conditions, the BIA denied Chen’s motion. As an alternative basis for its decision, the BIA held that
Chen was unable to make a prima facie showing of eligibility for asylum given the absence of
*
The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
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Qiu Hua Chen v. Eric H. Holder, Jr.
persuasive evidence that foreign-born children are counted for purposes of China’s one-child policy.
Because we find that the BIA did not abuse its discretion, we deny Chen’s petition for review.
I
On February 26, 2000, Chen arrived in Los Angeles, California. She was carrying neither
a passport nor valid immigration documents. Several weeks after her arrival, the government
initiated removal proceedings against Chen, charging her with removability under 8 U.S.C. §
1182(a)(7)(A)(i)(I). Appearing before an Immigration Judge (“IJ”), Chen conceded that she was
removable as charged and applied for asylum, withholding of removal, and protection under the
United Nations Convention Against Torture (“CAT”). Chen’s application for relief stated that she
had been arrested for accusing a local government official of embezzling earthquake relief funds.
Chen was subsequently released from custody pending a hearing on her eligibility for relief.
A four-year period of delay ensued, during which Chen married Shan Xiong Wang, another Chinese
national,1 and gave birth to the couple’s first son, Ivan. By mid-2003, Chen had become pregnant
with the couple’s second son, Calvin.
Chen’s asylum hearing was finally held on March 25, 2004. At the hearing, Chen contended
that, if she were returned to China, she would be subject to persecution for her actions in relation to
the alleged embezzlement scandal in her village. Chen also argued that she would be forcibly
1
Wang was also the subject of removal proceedings, and he was eventually ordered removed.
Like Chen, he applied for various forms of relief, but his applications were denied. He subsequently
moved to reopen his removal proceedings, and his motion was granted. However, he was again
denied relief. Wang then petitioned this court for review, but that petition was denied in an
unpublished order. See Shan Xiong Wang v. Holder, No. 08-4181 (6th Cir. Nov. 12, 2009).
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sterilized upon her return, as she was then pregnant a second time in violation of China’s one-child
policy. The IJ rejected Chen’s claims and denied her applications for relief, ordering her removed
to China. Chen appealed, and the BIA affirmed the IJ’s decision on August 15, 2005. Chen
nonetheless remained in the United States with her family.
On April 22, 2008, more than two years after the BIA affirmed the IJ’s order of removal,
Chen filed a motion with the BIA to reopen her removal proceedings so that she could reapply for
asylum. Under 8 U.S.C. § 1229a(c)(7)(C)(i), a motion to reopen removal proceedings must be filed
within ninety days of a final administrative order. However, the ninety-day time limit does not apply
to a motion if the purpose of the motion is to apply for asylum on the basis of changed country
conditions arising in the country of nationality. 8 U.S.C. § 1229a(c)(7)(C)(ii). Chen claimed that
she qualified under this exception. She asserted that the purpose of her motion was to apply for
asylum on the basis of her fear that, if she were returned to China, she would be forcibly sterilized
or otherwise persecuted for violating China’s one-child policy by giving birth to two children. She
further asserted that country conditions in China had changed since the date on which her asylum
application was rejected, arguing that Chinese officials had recently intensified enforcement of
coercive family-planning policies.
In support of her motion, Chen offered a plethora of documents, a number of which had been
brought to the BIA’s attention in previous cases. Among the previously submitted documents were
a 2003 Changle City Administrative Opinion and a 2003 Fujian Province Administrative Decision
(the “Administrative Decisions”), which the BIA had analyzed in at least two prior precedential
decisions. See In re S-Y-G-, 24 I. & N. Dec. 247, 256 (BIA 2007) (finding the Administrative
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Decisions insufficient to demonstrate that Chinese nationals giving birth to children abroad are
subject to forcible sterilization); In re J-W-S-, 24 I. & N. Dec. 185, 192 (BIA 2007) (noting that the
Administrative Decisions do not address the subject of forcible sterilization). In addition to the
Administrative Decisions, Chen submitted a document entitled Q&A for Fuzhou City Family-
Planning Information Handbook (the “Q&A Handbook”) and the affidavit of Dr. John Shields Aird
(the “Aird affidavit”). The Q&A Handbook and the Aird affidavit, like the Administrative
Decisions, had been addressed in precedential opinions. See In re S-Y-G-, 24 I. & N. Dec. at 256
(observing that the Q&A Handbook does not indicate, on its face, that forcible sterilization is
required after the birth of a second child); In re C-C-, 23 I. & N. Dec. 899, 901 (BIA 2006) (deeming
the Aird affidavit relatively unpersuasive with respect to the current country conditions in China).
Chen’s motion also relied on a number of documents that the BIA had not addressed in
precedential decisions. Included in Chen’s novel offerings were several newspaper articles, which
discussed alleged episodes involving the use of force against Chinese citizens found to be in
violation of the one-child policy. Chen also submitted letters from friends and family members in
China recounting fines, arrests, abortions, and forcible sterilizations inflicted on them for having,
or attempting to have, more than one child. Additionally, Chen proffered an unsigned, black-and-
white copy of a letter purportedly from the Village Committee of ChuanShi (“the Village Committee
letter”). The Village Committee letter indicated that Chen and her husband would be specific targets
for forced sterilization upon their return to China.
Despite this evidence, the BIA denied Chen’s motion to reopen as untimely, holding that she
had failed to establish materially changed country conditions. The BIA’s decision noted that “the
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majority of [the] documents [submitted with Chen’s motion] have already been considered by this
Board . . . and fail to show a material change in the family planning policy of Fujian Province in
China.” The BIA also concluded that Chen’s anecdotal evidence was of little probative value:
[W]e do not find the respondent’s personal affidavit or the photocopies of the letters
purportedly sent to her by her mother-in-law, cousins, and other relatives in China,
amount to evidence of changed country conditions or circumstances in China. . . .
Anecdotal accounts of isolated events do not necessarily indicate, without more, that
any one person is at potential risk of harm. . . . Furthermore, the anecdotal
information contained in many of these documents concern[s] individuals who may
or may not possess characteristics which are superficially similar to this respondent,
and does not meet the heavy evidentiary burden required for motions to reopen.
Finally, the BIA declared the Village Committee letter to be “inadequate.” Observing first that the
Village Committee letter was of dubious authenticity, the BIA went on to note that “there is [no]
indication of the authority of the Village Committee Birth Planning Office to make or enforce such
statements.” Consequently, the BIA rejected the evidence. As an additional ground for denying
Chen’s motion, the BIA held that she had failed to establish a reasonable likelihood that her second
application for asylum would succeed on the merits. The BIA based its conclusion on a 2007 report
compiled by the U.S. Department of State entitled China: Profile of Asylum Claims and Country
Conditions (“2007 State Department Profile”). Taking administrative notice of the report’s contents
pursuant to 8 C.F.R. § 1003.1(d)(3)(iv), the BIA quoted the report as saying: “U.S. officials in China
are not aware of the alleged 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 is born abroad.”
On the strength of that statement, the BIA concluded that Chen could not establish a “realistic
likelihood of being forced to undergo sterilization upon return to China.”
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On September 18, 2008, Chen timely petitioned this court for review of the BIA’s denial of
her motion to reopen.
II
“The BIA has ‘broad discretion’ to grant or deny a motion to reopen.” Bi Feng Liu v. Holder,
560 F.3d 485, 489 (6th Cir. 2009) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).
Consequently, we review such decisions for abuse of discretion. Ibid. An abuse of discretion occurs
if the BIA’s denial of a motion to reopen “was made without rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis such as invidious
discrimination against a particular race or group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.
2005) (quoting Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982)).
Normally, “the Board’s denial of relief may be affirmed only on the basis articulated in the
decision and this Court may not assume that the Board considered factors that it failed to mention
in its opinion.” Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004). However, “an error does
not require a remand if the remand would be pointless because it is clear that the agency would
adhere to its prior decision in the absence of error.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 338 (2d Cir. 2006); see also Yang Lin v. Holder, 320 F. App’x 428, 437 (6th Cir. 2009) (“[I]t
is unnecessary to remand in cases . . . where we can predict with confidence that the agency would
reach the same result absent [the alleged] error.”).
In reviewing the BIA’s factual conclusions, we employ a substantial-evidence standard. Guo
Qiang Hu v. Holder, 318 F. App’x 348, 350 (6th Cir. 2009) (“We review the BIA’s factual findings
under the substantial evidence standard.” (citing Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir.
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2007))). Under this standard, we consider factual findings to be “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Guo Ping Wu v. Holder, 339 F. App’x
596, 599 (6th Cir. 2009) (citations and internal quotation marks omitted); see 8 U.S.C. § 1252(b)(4).
III
Chen’s first argument is that the BIA abused its discretion in deciding that her motion to
reopen was untimely in light of her failure to demonstrate materially changed country circumstances.
Under 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii), the BIA may reject as untimely any motion to reopen
brought more than ninety days after the entry of a final administrative order unless that motion is
brought to apply for asylum on the basis of changed country conditions. See Liu, 560 F.3d at 490.
To qualify for this exception, the movant must submit material evidence of changed circumstances
that was not available at the previous hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii). “Further, the evidence
must show that the change in country conditions has caused an individualized threat of harm to the
applicant.” Niyibizi v. Mukasey, 300 F. App’x 371, 374 (6th Cir. 2008); see also Harchenko v. INS,
379 F.3d 405, 410 (6th Cir. 2004) (holding that an applicant “must offer reasonably specific
information showing a real threat of individual persecution”).
In this case, the BIA concluded that Chen’s motion—which had been brought more than two
years after the filing window had closed—was untimely, finding that Chen had failed to demonstrate
that country conditions had changed materially. Chen attacks the BIA’s decision on numerous
grounds. Specifically, Chen argues that the BIA abused its discretion by: failing to address a number
of documents appended to her motion to reopen; rejecting the Village Committee letter; “generically
relying” on precedent to dismiss previously rejected documents; and concluding that parents of
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foreign-born children are not subject to persecution upon returning to China. These arguments prove
unsuccessful.
A
Chen’s first argument is that the BIA abused its discretion by reaching its decision without
expressly analyzing various background documents that she submitted with her motion to reopen.
Specifically, Chen faults the BIA for failing to address several newspaper articles, which detail
alleged acts of brutality committed against Chinese families for attempting to have more than one
child. See Petitioner’s Br. at 19. Chen contends that the articles demonstrate a material change in
country conditions, namely, heightened enforcement of the one-child policy. According to Chen,
the BIA was therefore obliged to acknowledge and discuss the articles in arriving at its conclusion.
However, Chen overlooks our holding in Yan Xia Zhang v. Mukasey, 543 F.3d 851 (6th Cir.
2008). In Zhang, we held that the BIA is not required to offer an exegesis on every piece of evidence
in the record. Id. at 854 (“We do not require the Board’s opinion to mention every piece of evidence
before it or every logical element of a motion.”). Rather, “the [BIA] need only analyze and explain
the basis on which it decide[s] against [a movant].” Ibid. This means that, when a critical element
of the petitioner’s claim fails, the BIA “owe[s] no duty to rehearse” the evidence pertaining to other
aspects of the motion. Id. at 855; see also Feng Gui Lin v. Holder, 588 F.3d 981, 987 (9th Cir. 2009)
(“[A]lthough the BIA must consider a petitioner’s evidence of changed country conditions, it need
not expressly refute on the record every single piece of evidence.”).
Here, the BIA’s decision was based on Chen’s failure to show that children born abroad are
counted for purposes of China’s family-planning policy. In rejecting the bulk of Chen’s evidence,
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the BIA noted that “the majority of th[e] documents ha[d] already been considered . . . and addressed
in [the BIA’s] precedent decisions, and fail[ed] to show a material change in the family planning
policy of Fujian Province in China.” To support its point, the BIA cited In re S-Y-G-, 24 I. & N.
Dec. 247 (BIA 2007); In re J-W-S-, 24 I. & N. Dec. 185 (BIA 2007); and In re C-C-, 23 I. & N. Dec.
899 (BIA 2006). Each of those decisions held that “the evidence [of record] . . . fail[ed] to establish
that any sanctions imposed on parents of foreign-born children would rise to the level of
persecution.” In re J-W-S-, 24 I. & N. Dec. at 194; see In re S-Y-G-, 24 I. & N. Dec. at 255-56; In
re C-C-, 23 I. & N. Dec. at 903-04. Thus, by citing the aforementioned decisions, the BIA indicated
that its holding was predicated on Chen’s inability to establish that returnees faced persecution on
account of foreign-born offspring.2
Given the basis of the BIA’s holding, there was no need for the BIA to address the
background articles submitted with Chen’s motion. As Chen admits, the articles were offered for
a single purpose: to prove a recent surge in violence as a means of enforcing China’s restrictions on
reproduction. However, the articles do not speak to the issue of whether parents of children born
abroad are subjected to forcible sterilization. As a result, the articles do not undermine the
foundation of the BIA’s decision. To put it another way, even if the BIA had found that the articles
2
This conclusion is also buttressed by the BIA’s discussion of Chen’s failure to make out a
prima facie showing of eligibility for asylum. Noting that Chen did not have a reasonable likelihood
of success on the merits of her asylum claim, the BIA observed that “there was no persuasive
evidence that returnees who have children born in the United States face a realistic likelihood of
being forced to undergo sterilization upon return to China.” It is therefore plain that the BIA’s
principal focus in rejecting Chen’s motion to reopen was the lack of evidence regarding the
applicability of China’s one-child policy to Chinese nationals with children born outside the country.
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were accurate and evidenced an upsurge in the practice of forcible sterilization, the BIA’s ultimate
conclusion would have been the same—parents with foreign-born children are not subject to
persecution for violation of China’s family-planning regulations. Thus, “[t]o remand here because
the [BIA] did not needlessly discuss documents on points of fact not material to its decision would
frustrate [the] policy of finality in immigration proceedings without any benefit.” Zhang, 543 F.3d
at 855. Accordingly, we find that the BIA was under no obligation to analyze the articles expressly
in this case. See ibid. (holding that the BIA owes no duty to rehearse evidence not directly germane
to its decision “for sake of completeness”).3
B
Chen’s next argument is that the BIA abused its discretion by rejecting the putative Village
Committee letter, which identified her as a specific target for forcible sterilization. She argues that,
because the BIA reopened her husband’s removal proceedings on the basis of a similar letter, the
BIA’s refusal to credit the letter in her case constituted an inconsistent (and therefore improper)
application of agency standards. See Petitioner’s Br. at 27. She also argues that the BIA erred in
3
In addition to arguing that the BIA should have addressed the newspaper articles, Chen
contends that the BIA’s summary dismissal of the photocopied letters from her friends and family
members in China was an abuse of discretion. However, her contention with respect to the letters
is also foreclosed in light of Zhang. The letters, like the newspaper articles, simply provide evidence
of “increased enforcement of the [one-child] policy in [her] local area of China.” Petitioner’s Br.
at 25. The letters do not furnish proof of the fact that Chinese citizens with multiple foreign-born
children are subject to forcible sterilization. The BIA was therefore entitled to dismiss the letters
summarily. Additionally, to the extent that Chen claims the BIA abused its discretion in failing to
address or analyze any other documents that describe general enforcement practices, we find that
Zhang renders such claims meritless.
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relying on the fact that the Village Letter was an unauthenticated copy of an unsigned document.
Neither of these arguments withstands scrutiny.
1
Although Chen correctly notes that the BIA reopened her husband’s removal proceedings on
the basis of a Village Committee letter similar to the one she submitted, the BIA eventually rejected
her husband’s letter, holding that it was “inadequate evidence” because it “[was] a black and white
copy, [did] not contain an original signature, and contain[ed] no authenticating information.” In re
Shan Xiong Wang, No. A073-208-683, at 3 (BIA Sept. 4, 2008) (unpublished decision). Given the
BIA’s eventual rejection of the Village Committee letter in her husband’s case, any claim that the
BIA has been inconsistent in its approach to the letter is without force. Furthermore, we are
convinced that remand for reevaluation of the letter in light of her husband’s proceedings would be
futile, rendering remand unnecessary. See Yang Lin, 320 F. App’x at 437.
2
As to the BIA’s decision to reject the Village Committee letter on authenticity grounds, we
note that several courts have indicated that it is an abuse of discretion for the BIA to reject an
allegedly official document simply because it has not been authenticated pursuant to 8 C.F.R. §
287.6. See, e.g., Gui Cun Liu v. Ashcroft, 372 F.3d 529, 532 (3d Cir. 2004) (“[A]sylum applicants
cannot always reasonably be expected to have an authenticated document from an alleged
persecutor.”); Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 405 (2d Cir. 2005) (“We . . . find
that the IJ erred by rejecting the notarial birth certificate based on Cao’s failure to authenticate it
pursuant to ‘regulation.’”). However, the BIA may properly reject a document that has not been
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authenticated in accordance with regulations if there are no convincing indications of the document’s
authenticity. See Fang Zheng v. Att’y Gen. of the U.S., 359 F. App’x 339, 342 (3d Cir. 2009)
(holding that the BIA may exclude documentary evidence that has not been “authenticate[d] in any
manner”); Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008) (“[W]hile we have rejected any
requirement that corroborative documents strictly comply with the BIA’s authentication regulations,
we afford IJs considerable flexibility in determining the authenticity of such documents from the
totality of the evidence[.]”).
In the present case, we cannot say that the BIA abused its discretion in excluding the Village
Committee letter on authenticity grounds. While the BIA did observe that the letter had not been
authenticated in accordance with 8 C.F.R. § 287.6, that was not the sole basis for the BIA’s decision
to deem the letter inadequate. In addition, the BIA noted that the letter “[was] a black and white
copy, [did] not contain an original signature, and contain[ed] no authenticating information.” These
observations alone likely would have been sufficient justification for the BIA’s decision, see Ping
Wang v. Holder, 352 F. App’x 556, 557 (2d Cir. 2009) (holding that the BIA acted reasonably in
according little or no weight to a black-and-white copy of a document that bore no original signature
and had no other authenticating information), but the BIA also observed that, according to a State
Department report, “there [was no] indication [that] the Village Committee Birth Planning Office
[had the authority] to make or enforce such statements.” 4 In light of this evidence—which points
4
Chen contends that the State Department report does not conclusively show that the Village
Committee letter was fake, as the report merely states that the Village Committee was without
authority to write the letter. According to Chen, the Committee’s supposed lack of authority does
not foreclose the possibility that the Committee wrote the letter. However, the fact that the
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toward a finding that the Village Committee letter was spurious—we cannot say that the BIA’s
decision was an abuse of discretion.
C
Chen also argues that the BIA abused its discretion in relying on precedent to conclude,
without additional individualized analysis, that certain documents failed to demonstrate materially
changed country conditions in China. See Petitioner’s Br. at 30. In rejecting the “majority” of
Chen’s documents, the BIA simply noted that the documents “fail[ed] to show a material change in
the family planning policy of Fujian Province in China.” As support for its conclusion, the BIA
cited In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); In re J-W-S-, 24 I. & N. Dec. 185 (BIA 2007);
and In re C-C-, 23 I. & N. Dec. 899 (BIA 2006). Chen contends that the BIA’s summary rejection
of the documents addressed in those cases amounts to reversible error because her situation is
factually distinct, rendering the BIA’s previous analysis inapplicable. See Petitioner’s Br. at 30
(“The BIA fail[ed] to address factors significantly distinguishing [her] claim from that of Matter of
S-Y-G-.”).
However, Chen’s attempts to distinguish her case fail, as her circumstances are not materially
distinct from those confronting the petitioners in the BIA’s precedent decisions. In those decisions,
the BIA held that the certain documents—namely, the Administrative Decisions, the Aird affidavit,
Committee is not authorized to write such letters certainly diminishes the probability that the
Committee actually authored the letter at issue in this case. Furthermore, the BIA’s reluctance to
credit the letter was also based on other factors, such as the lack of an original signature. The
absence of indications that the letter was authentic were enough to limit its probative value. Thus,
we attach no great weight to Chen’s objection.
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and the Q&A Handbook—were insufficient to establish that returnees with foreign-born children
were targeted for persecution, either nationally or locally.5 See In re S-Y-G-, 24 I. & N. Dec. at 255
(concluding that the Administrative Decisions were insufficient to rebut a State Department report
indicating that “children born abroad are ‘not . . . counted’ for birth planning purposes when the
parents return to China”); In re C-C-, 23 I. & N. Dec. at 903 (holding that the Aird affidavit was
insufficient to show that “China’s family planning policy [was applied] to women returning to that
country with children born abroad”). Like the petitioners in In re S-Y-G- and In re C-C-, Chen is a
Chinese national with children born abroad. Therefore, the evidence assessed in the BIA’s precedent
decisions is equally unpersuasive in her case, and the BIA was permitted to dispense with detailed
consideration of any previously rejected documents. See Yang Lin, 320 F. App’x at 437 (holding
that evidence considered in the BIA’s prior decisions “is necessarily inadequate on its own to
establish that American-born children will be counted under the one-child policy, or that the parents
of multiple American-born children have any objective reason to fear they will be persecuted”); Wei
Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (holding that the BIA may summarily dismiss
“evidence, such as the oft-cited Aird affidavit, which [it] is asked to consider time and again”).
D
Chen also appears to argue that, given the evidence on record, the BIA erred in holding that
parents of foreign-born children are not subject to persecution—in the form of either forcible
sterilization or economic sanctions—upon returning to China. However, “[t]he finding that children
5
The Q&A Handbook is actually irrelevant to the ultimate question in this case because it
is silent with respect to China’s treatment of returnees with foreign-born children.
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born outside of China are not counted for purposes of China’s population-control policies continues
to be accepted by the BIA, as well as by other courts of appeals.” Fang Huang v. Mukasey, 523 F.3d
640, 653 (6th Cir. 2008). Furthermore, “we have specifically held that fines levied against couples
returning to China with more children than allowed under applicable family-planning policies do not
rise to [the] level [of persecution].” Guo Qiang Hu v. Holder, 318 F. App’x 348, 353 (6th Cir.
2009). We see nothing in the record that compels us to deviate from these conclusions. Therefore,
in light of the substantial deference owed to the BIA’s determination of country conditions, see id.
at 352, we find that the BIA did not abuse its discretion in concluding that Chen failed to show a
material change in country circumstances.
IV
Chen also argues that the BIA abused its discretion in holding that she failed to make a prima
facie case of eligibility for asylum. However, we need not address this argument, as the BIA
properly denied Chen’s motion based on her failure to show materially changed country conditions.
V
For the foregoing reasons, we DENY Chen’s petition for review.
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