Yan Zhao v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAN RONG ZHAO, No. 11-73321
Petitioner,
Agency No.
v. A098-566-652
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 6, 2013—Pasadena, California
Filed September 6, 2013
Before: Sidney R. Thomas, Barry G. Silverman,
and Raymond C. Fisher Circuit Judges.
Opinion by Judge Thomas
2 ZHAO V. HOLDER
SUMMARY*
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ decision denying a motion to reopen
filed by a Chinese citizen who asserted a fear of persecution
because she is unmarried and gave birth to two children in the
United States in violation of China’s family planning policy.
The panel held that because the Board held petitioner to
an incorrect legal standard and failed to properly consider
much of her relevant evidence, it abused its discretion in
denying her motion to reopen.
COUNSEL
Theodore N. Cox (argued), New York, New York, for
Petitioner.
Theodore C. Hirt (argued), Senior Litigation Counsel, and
Linda S. Wernery, Assistant Director, Office of Immigration
Litigation; Stuart F. Delery, Acting Assistant Attorney
General, Civil Division, Washington, D.C., for Respondent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ZHAO V. HOLDER 3
OPINION
THOMAS, Circuit Judge:
Yan Rong Zhao petitions for review of the denial of her
motion to reopen on the basis that she is unmarried and has
two children in violation of China’s family planning policy,
and she fears persecution if she is returned to China. Because
the Board of Immigration Appeals (“BIA”) held Zhao to an
incorrect legal standard and failed to properly consider much
of her relevant evidence, it abused its discretion in denying
her motion to reopen. We grant the petition for review.
I
Yan Rong Zhao is from Duhu Town, Taishan City,
Guangdong Province and entered the United States in 2005
when she was four months pregnant with her first son, Ricky.
She entered the United States to flee an abusive relationship,
and claimed that she feared persecution in China because she
was pregnant and unmarried, a violation of China’s family
planning policy.
The Immigration Judge (“IJ”) denied Zhao’s applications
for asylum, withholding of removal, and benefits under the
Convention Against Torture, holding that Zhao does not have
a well-founded fear of persecution and “has not met her
burden of proof to present specific facts sufficient to
demonstrate her eligibility for asylum.” The IJ did not
identify any parts of Zhao’s testimony as not credible.
Zhao appealed to the BIA, and while that appeal was
pending, Zhao gave birth to her second son, Benjamin, and
filed a motion to remand that included affidavits from Zhao
4 ZHAO V. HOLDER
and her brother and a copy of the notice that Zhao’s brother
was given by the Duhu Town Family Planning Office.1 The
affidavit from Zhao’s brother states that family planning
officials also told him that Zhao “has already severely
violated the family planning policy” and that “[i]f she returns
to China, she is mandated to undergo a sterilization surgery.”
The BIA “conclude[d] that the respondent failed to
establish a prima facie case that her situation satisfies the
three-prong test from Matter of J-H-S-” because “she failed
to submit evidence sufficiently supporting a level of coercive
enforcement giving rise to a reasonable possibility of
1
The “Notice to Yan Rong Zhao Regarding the Family Planning
Policy,” dated October 26, 2009, includes the seal of the Duhu Town
Family Planning Office and “is the response to Yan Rong Zhao’s inquiry
of the specifics contained in the regulations of the family planning policy
law in China.” The Notice explained:
In accordance with the regulations set forth in Article
24 Guangdong Provincial Family Planning Rules and
Regulations, after giving birth to one child, a citizen
will be placed in the category to wear an IUD. A
citizen should undergo a sterilization operation after
having had two children. You are currently in the
United States. But you are still a Chinese citizen and
should be placed in the category to undergo
sterilization. You will be excluded from the category
to undergo sterilization if you are a U.S. citizen. If you
don’t meet the above criteria, you must report to the
town family planning office within one week upon your
return to China and undergo a sterilization operation, or
you will be held responsible for the consequences
herein arisen.
ZHAO V. HOLDER 5
persecution.”2 The BIA “den[ied] the respondent’s motion to
remand because she failed to show that she is prima facie
eligible for the relief she seeks.”
Zhao filed a motion to reopen on March 30, 2011 and the
BIA denied that motion. The BIA held that Zhao’s motion
was the second motion she had filed, and was therefore
numerically barred, but that the numerical bar would not
apply if Zhao could show that her motion to reopen is based
on changed country conditions in China. But it held that
Zhao’s evidence “does not establish that there has been a
material change in conditions in China since the time of her
hearing before the Immigration Judge on January 3, 2008.”
The BIA also held that even if the numerical bar did not
apply, Zhao had not met the other requirements for
reopening. She “presented insufficient evidence to meet her
burden of establishing that the new evidence she seeks to
offer makes her prima facie eligible for asylum.” The Board
assigned “minimal weight” to the Duhu Town Family
Planning Office Notice provided by Zhao’s brother because
“that document was not an original document, was
unauthenticated, and did not specify the penalty for failing to
undergo sterilization.” The BIA also explained that Zhao had
not produced evidence establishing that she would be
considered to be in violation of the law, and she has not
“establish[ed] that birth control officials in Duhu town would
subject her to treatment rising to the level of persecution.”
2
A few days after Zhao filed her motion to remand, the BIA issued its
first decision without having considered the motion to remand. Because
of this, the BIA eventually vacated its 2009 decision and issued a new
decision on December 30, 2010.
6 ZHAO V. HOLDER
We review the denial of a motion to reopen for abuse of
discretion, so “[t]he decision of the BIA should be left
undisturbed unless it is ‘arbitrary, irrational, or contrary to
law.’” Chang Hua He v. Gonzales, 501 F.3d 1128, 1131 (9th
Cir. 2007) (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th
Cir. 2002)). “We cannot affirm the BIA or IJ on a ground
upon which it did not rely.” Ali v. Holder, 637 F.3d 1025,
1029 (9th Cir. 2011).
II
The BIA erred in holding that Zhao’s motion to reopen
was numerically barred. Generally, “an alien may file only
one motion to reopen removal proceedings (whether before
the Board or the Immigration Judge) and that motion must be
filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceedings
sought to be reopened.” 8 C.F.R. § 1003.2(c)(2); see 8 U.S.C.
§ 1229a(c)(7). There are exceptions to the numerical and
timeliness requirements if the respondent can establish
“changed country conditions arising in . . . 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.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
As the government properly concedes, Zhao’s first motion
to remand was filed before a final administrative decision in
her case, so it does not implicate 8 C.F.R. § 1003.2(c)(2).
Therefore, Zhao is not required to meet the “changed country
conditions” standard in 8 U.S.C. § 1229a(c)(7)(C)(ii).
ZHAO V. HOLDER 7
III
Because Zhao’s motion to reopen was not numerically
barred, Zhao need only prove that the “evidence sought to be
offered is material and was not available and could not have
been discovered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(c)(1). Zhao must also establish prima facie
eligibility for the relief sought. Mendez-Gutierrez v.
Ashcroft, 340 F.3d 865, 869–70 (9th Cir. 2003); Ordonez v.
INS, 345 F.3d 777, 785 (9th Cir. 2003). The BIA erred in its
consideration of the evidence submitted by Zhao.
A
In asylum cases involving China’s family planning policy,
the BIA reviews “the details of local family planning policies,
proof that the alien violated such policies, and evidence that
local enforcement efforts against the violation will rise to the
level of persecution,” In re J-H-S-, 24 I. & N. Dec. 196, 201
(BIA 2007), and looks to the “alien’s local province,
municipality, or other locally-defined area,” id. at 198. The
Second Circuit has approved this formulation. Shao v.
Mukasey, 546 F.3d 138, 174 (2d Cir. 2008). In applying this
standard, the BIA has focused on the governmental area
appropriate to the case, often relying solely on province-level
proof. See J-H-S-, 24 I. & N. Dec. at 202 (Fujian Province);
In re C-C-, 23 I. & N. Dec. 899, 901 (BIA 2006) (Zhejiang
Province). In other words, to establish prima facie eligibility
for relief in a motion to reopen, evidence from the local
province, municipality, or other locally defined area may be
sufficient to show a well-founded fear of persecution;
respondents are not required to present evidence from their
town or city. A respondent could, for example, provide
evidence of the provincial policy, or could show strict
8 ZHAO V. HOLDER
enforcement of that policy in his or her city or town. This
standard “recognizes the serious difficulty with which asylum
applicants are faced in their attempts to prove persecution”
and precisely how their situation would be viewed and the
consequences they would face if returned to their home
country. Cordon-Garcia v. INS, 204 F.3d 985, 993 (9th Cir.
2000).
Neither the BIA nor this court has previously required
municipal-level proof when the petitioner presents province-
level proof. Here, however, the BIA departed from that
standard. In examining whether Zhao had established prima
facie relief for eligibility, the BIA explained that “the
respondent’s evidence does not establish that birth control
officials in Duhu Town would subject her to treatment rising
to the level of persecution.” The government agrees that
Zhao’s failure was in not providing “sufficient, reliable
evidence from her locality – Duhu Town in Guangdong
Province – to establish prima facie eligibility for asylum
based on a well-founded fear of persecution based on her
alleged violation of the Town’s family planning policies.”
An agency’s decision is arbitrary and capricious if the
agency fails to follow its own precedent or fails to give a
sufficient explanation for failing to do so. Atchison, Topeka
& Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800,
807-08 (1973). Here, rather than apply its standard of
accepting evidence from an “alien’s local province,
municipality, or other locally-defined area,” J-H-S-, 24 I. &
N. Dec. at 198, the agency restricted the standard of proof to
the municipality without explanation. Absent some reasoned
explanation appropriate to the particular circumstances, the
BIA simply cannot shift its proof requirements. To do so is
to subject petitioners to an administrative shell game.
ZHAO V. HOLDER 9
Therefore, under the circumstances presented by this case, it
was contrary to law and an abuse of discretion for the BIA to
require Zhao to provide Duhu Town-specific evidence of
local policy and enforcement. See Chang Hua He, 501 F.3d
at 1131.
B
The BIA not only required evidence that was specific to
Duhu Town, but it also seemed to require one piece of
comprehensive evidence. For example, the BIA explained
that several of Zhao’s documents “do not specify the
exceptions to the one child limit and do not discuss how
children born abroad are handled.” The BIA also assigned
“minimal weight” to the document from Duhu Town in part
because it “did not specify the penalty for failing to undergo
sterilization.” This rationale again subjects petitioners to a
shell game in which it is unclear how a petitioner could ever
produce evidence that would be sufficient to meet the burden
required for a motion to reopen.3
The BIA and government imply that Zhao must point to
one piece of evidence that conclusively proves that she would
be subject to persecution if she is returned to China: this
single piece of evidence would presumably have to show that
(1) there is a family planning policy in Duhu Town that (2)
specifically counts U.S. citizen children (3) born to unwed
mothers (4) in the United States, (5) penalizes violations of
3
This “heads I win, tails you lose” interpretation is similarly illustrated
by the fact that the BIA had previously rejected some of Zhao’s evidence
because it was “apparently prepared for the purpose of litigation and is
from an interested witness,” Zhao’s brother, but now requires evidence
that “relates to individuals in [Zhao’s] precise situation.”
10 ZHAO V. HOLDER
the family planning policy with forced sterilization, and that
(6) if Zhao refuses sterilization, the penalty for refusing
involves physical force or coercion that rises to the level of
persecution.
The government has identified no authority requiring one
conclusive piece of evidence, and we decline to impose such
a requirement. Instead, “[a] motion to reopen must state the
new facts to be proved and must be supported by affidavits or
other evidentiary material.” Ordonez, 345 F.3d at 785(quoting In re S-V-, 22 I. & N. Dec. 1306, 1307 (BIA 2000),
overruled on other grounds by Zheng v. Ashcroft, 332 F.3d
1186, 1194–96 (9th Cir. 2003)). The BIA erred by faulting
individual pieces of evidence for lacking elements necessary
to show prima facie eligibility for relief. Instead, the BIA
should have looked at the evidence as a whole to determine
whether Zhao had satisfied her burden.
Though the BIA does not have to address every piece of
evidence, it is required to consider the evidence “‘in its
entirety’ . . . and where its failure to do so could have affected
its decision, remand is appropriate.” Singh v. Gonzales,
494 F.3d 1170, 1172 (9th Cir. 2007) (quoting Mohammed v.
Gonzales, 400 F.3d 785, 793 (9th Cir. 2005)). “While the
Board has broad discretion in ruling on a motion to reopen, it
must show proper consideration of all factors, both favorable
and unfavorable, in determining whether to grant a motion to
reopen.” Toufighi v. Mukasey, 538 F.3d 988, 993 (9th Cir.
2007).
Zhao marshaled significant evidence in support of her
motion, some of which was improperly rejected by the BIA.
For example, the BIA assigned only “minimal weight” to the
notice from the Duhu Town Family Planning Office because
ZHAO V. HOLDER 11
“that document was not an original document, was
unauthenticated, and did not specify the penalty for failing to
undergo sterilization.”
However, in its own Appeals Practice Manual, the BIA
instructs petitioners not to file original documents.
Specifically, the BIA Practice Manual states: “The Board
strongly recommends that the parties submit copies of
supporting documents, not originals, unless instructed
otherwise” because “[t]he Board does not as a practice return
original documents, nor can the Board ensure the return of
any original documents submitted to it.” Executive Office for
Immigration Review, Board of Immigration Appeals Practice
Manual at 40 (June 10, 2013), available at
http://www.justice.gov/eoir/vll/qapracmanual/BIAPractice
Manual.pdf. The record does not reflect that Zhao was ever
instructed to produce the original document, so she should not
have been faulted for providing a copy rather than the
original.
As to the authentication, “a petitioner’s failure to obtain
government certification of a foreign public document’s
authenticity is not necessarily a bar to admission of the
document.” Vatyan v. Mukasey, 508 F.3d 1179, 1183 (9th
Cir. 2007). To the extent that the BIA rejected the Duhu
Town document solely because it was not authenticated
pursuant to regulation, this was error. See id. (rejecting the
proposition that foreign government documents must be
authenticated by official certification pursuant to 8 C.F.R.
§ 287.6 and holding that a document can be authenticated by
any evidence sufficient to support a finding that the item is
what the proponent claims it is).
12 ZHAO V. HOLDER
Aside from the fact that it was a copy and
unauthenticated, the BIA did not explain whether or why it
found the document to be unreliable.4 “[H]ow realistic is it
to expect the petitioner to be able to obtain an authenticated
copy of a communication from a local official that states an
intention to violate Chinese national policy . . . against
resorting to sterilization to punish violations of the one-child
policy or deter future violations?” Qiu Yun Chen v. Holder,
715 F.3d 207, 211 (7th Cir. 2013). It therefore stands to
reason that “failing to authenticate [foreign documents] may
not serve as a basis for an adverse credibility determination
without some evidence of forgery or other unreliability.
“Here, [the BIA articulated] no evidence of forgery or
unreliability, and it was inappropriate for the [agency] to give
the [document] ‘diminished weight.’” Zhou v. Gonzales,
437 F.3d 860, 866 (9th Cir. 2006) (citation omitted).
The BIA also discredited most of the evidence submitted
by Zhao because the evidence “does not establish changed
conditions material to the respondent’s applications for relief”
because it does not mention Duhu Town. But as we
explained above, Zhao was not required to show changed
country conditions, nor was she required to provide Duhu
Town-specific evidence. The BIA also discredited evidence
because it “does not indicate that it relates to individuals in
her precise situation,” but the BIA did not articulate what it
meant by “her precise situation” and how this differs from its
criticism regarding the children being born abroad.
4
The third reason given for assigning only “minimal weight” to the
document was because “that document . . . did not specify the penalty for
failing to undergo sterilization.” But as we discussed above, each piece
of evidence need not conclusively prove that Zhao is prima facie eligible
for relief.
ZHAO V. HOLDER 13
Zhao tendered significant material evidence, such as the
Congressional-Executive Commission on China, Annual
Report 2010 (Oct. 10, 2010) (“2010 C.E.C.C. Report”).5 The
2010 C.E.C.C. Report recognizes that “all pregnancies that
occur without an official permit, including first pregnancies,
are regarded by the government as ‘out-of-plan,’” 2010
C.E.C.C. Report at 119; and the heavily relied-upon State
Department report, China: Profile of Asylum Claims and
Country Conditions (May 2007) (“2007 Profile”) explained
that “it is illegal in almost all provinces for a single woman to
have a child.” 2007 Profile at 110. Zhao has two sons, had
her children “out of plan,” and is not married. The 2010
C.E.C.C. Report explains that “[v]iolators of the policy
[requiring a birth permit before having a child] are routinely
punished with fines, and in some cases, subjected to forced
sterilization, forced abortion, arbitrary detention, and torture.
In some cases surgical sterilization may be required of
Chinese women following the birth of their second child.”
2010 C.E.C.C. Report at 116 (footnote omitted). “When
women reach the state-imposed limit on number of births,
local authorities often mandate surgical sterilization to
prevent ‘out-of-plan’ pregnancies.” Id. at 119. Guangdong
is one of several provinces that has “vowed to ‘by all means
necessary, stabilize the low birth level.’” Id. at 118.
5
The 2010 C.E.C.C. Report “was not available and could not have been
discovered or presented at the former hearing” before the IJ. 8 C.F.R.
§ 1003.2(c)(1). The 2010 C.E.C.C. Report was dismissed by the BIA
because it discusses abortion regulations in another city and consists of
“statements of policy.” But just as a document’s failure to address all of
the elements of Zhao’s claim does not diminish its value, nor is it
diminished by the fact that it discusses additional information not relevant
to Zhao. It is also unclear what the BIA meant when it rejected
“statements as statements of policy.”
14 ZHAO V. HOLDER
Additionally, the BIA did not address at all the affidavit
from Zhao’s brother, which explained that he went to the
Family Planning Office in their hometown and “asked if my
younger sister would suffer from forced sterilization upon her
return to China. The family planning staff told me the
following: Your younger sister, Yan Rong Zhao, has already
severely violated the family planning policy which requires
wearing an IUD after one child and sterilization after two
children. If she returns to China, she is mandated to undergo
a sterilization surgery.” “[F]acts presented in affidavits
supporting a motion to reopen must be accepted as true unless
inherently unbelievable,” Bhasin v. Gonzales, 423 F.3d 977,
987 (9th Cir. 2005), and the BIA failed to address the
affidavit, much less find it inherently unbelievable.
As to whether children born in the United States could
violate the family planning policy, the 2007 Profile explains
that “our understanding is that the parents of U.S.-born
children who choose to register their children as Chinese
permanent residents . . . would not be able to exclude these
children from the number of children allowed under Chinese
family planning policy, and this could trigger sanctions and
economic penalties under the relevant laws and regulations.”
2007 Profile at 115. Zhao also presented evidence that “new
and stricter provincial regulations went into force on January
1, 2009” in Guangdong province, and these regulations apply
to “returned overseas Chinese (guiqiao), relatives of Chinese
nationals living abroad (qiaojuan), [and] residents of
Guangdong who have children abroad . . . .”6
6
The BIA did not abuse its discretion in refusing to credit Dr. Flora
Sapio’s report insofar as it contradicts the 2007 Profile, but the factual
evidence of the 2009 regulations does not contradict the earlier 2007
Profile.
ZHAO V. HOLDER 15
If a woman does not agree to be sterilized, “[i]n some
areas, coerced sterilization is accomplished through punitive
action taken against the family members of targeted women,
which can include extended periods of detention.” Id. at 119.
The BIA also noted that the 2007 Profile is consistent with
evidence explaining that China is in violation of a “provision
[that] prohibits funding to any organization or program
‘which supports or participates in the management of a
program of coercive abortion or involuntary sterilization.’”
In short, Zhao tendered substantial evidence in support of
her motion to reopen that was unaddressed or improperly
rejected by the BIA.
IV
In sum, the BIA improperly held that the motion to
reopen was numerically barred, erred in restricting the
evidence Zhao could provide, and erred in failing to consider
the evidence tendered. We grant the petition for review and
remand for further proceedings consistent with this opinion.
PETITION GRANTED. REMANDED.