Qin Wen Zheng v. Gonzales, No. 05-5741 (2d Cir. 2007)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 31, 2007.
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05-5741-ag Qin Wen Zheng v. Gonzales 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006 4 5 6 7 8 (Submitted: March 21, 2007 Decided: August 31, 2007 Errata Filed: September 20, 2007) Docket No. 05-5741-ag ------------------------------------- 9 QIN WEN ZHENG, 10 Petitioner, 11 - v - 12 13 ALBERTO R. GONZALES, Attorney General of the United States 14 Respondent. 15 ------------------------------------- 16 17 Before: SACK, PARKER, and HALL, Circuit Judges. Petition for review of a decision by the Board of 18 Immigration Appeals denying the petitioner's motion to reopen his 19 asylum proceedings. 20 determining that the petitioner failed to demonstrate changed 21 country conditions. 22 The Board did not abuse its discretion in Petition denied. 23 24 Michael Brown, New York, NY, for Petitioner. 25 26 27 28 29 30 31 Margaret A. Hickey, Assistant United States Attorney for the Northern District of Illinois (Patrick J. Fitzgerald, United States Attorney, Craig Oswald, Assistant United States Attorney, on the brief), Chicago, IL, 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). 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). In re Qin Wen 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. 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. As particularly relevant here, Zheng argues BACKGROUND 17 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). -2- 1 Opaciuch, Zheng conceded removability. 2 submitted documentary evidence in support of his claims. 3 23, 2000, the IJ denied Zheng's requests for relief, determining 4 that his testimony was not credible because it was inconsistent 5 with his prior statements and other documentary evidence, and 6 that he, therefore, failed to meet his burdens of proof. 7 Qin Wen Zheng, No. A 77 224 430 (Immig. Ct. N.Y. City June 23, 8 2000). 9 decision, without opinion, on November 21, 2002. 10 Zheng, No. A 77 224 430 (B.I.A. Nov. 21, 2002). 11 petition this Court for review of that decision. 12 He testified and On June In re Zheng appealed to the BIA, which affirmed the IJ's In re Qin Wen Zheng did not In October 2003, Zheng filed a motion to reopen his 13 removal proceedings. 14 claim and submitted, inter alia, affidavits from, and photographs 15 of, his wife and children in China. 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 He again argued the merits of his asylum On April 19, 2005, the BIA 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. 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 He submitted a variety of documents -3- 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. 5 from officials of his local village that, he contends, 6 demonstrates that conditions had materially changed there. He also submitted a notice allegedly sent to his wife 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." 14 right quadrant which is translated to read "Long Tian Villager 15 Commission, Guhuai Town, Changle City." 16 Notice reads in its entirety: 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 It also appears to have a stamp on the lower As translated, the The government is currently investigating those people who had left the country illegally and applied for asylum in overseas. Their behaviors has damaged our countries' international image. From the report we received, we found out that your husband, Zheng Qin Wen is among those people. He not only violated the family planning policy in China, but also illegally left China and went to the United States wherein he did something detrimental to our country's dignity. It is hereby ordered that you must persuade your husband Zheng Qin Wen immediately stopping his asylum application in overseas, coming back to China and surrendering himself to the government to obtain a lenient treatment. Otherwise, he will be severely punished if he is arrested. -4- 1 The Notice was supported solely, and only to some extent, by an 2 affidavit from Zheng's wife. 3 English,2 the affidavit rehearses the underlying assertions of 4 Zheng's asylum application. 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. 8 does not include any reference to the Notice. 9 Also translated from Chinese to The affidavit also attempts to It 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). 13 wife's affidavit and background material," it said, "was not 14 previously unavailable or is not new. . . . 15 reports have not been highlighted. . . ." 16 continued: 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." 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 "Much of the evidence now presented, including the The new country Id. The BIA "[T]he purported notice from the respondent's home Id. The agency denied Zheng's motion to reopen on the 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. -5- DISCUSSION 1 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. 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). 9 See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam) See 8 U.S.C. We therefore may review no more than that denial. 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. 14 § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).3 3 The applicable (7) Motions (A) In reopen See 8 U.S.C. Zheng argues, portion of section 1229a provides: to reopen. general. An alien may file one motion to 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 -6- 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." 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." 20 8 C.F.R. § 1003.2(c)(1). Such a motion Id. "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). 23 abuses its discretion if its decision "provides no rational The BIA have been discovered or presented at the previous proceeding. 8 U.S.C. § 1229a(c)(7)(A), (C). -7- 1 explanation, inexplicably departs from established policies, is 2 devoid of any reasoning, or contains only summary or conclusory 3 statements." 4 2006) (internal quotation marks and citation omitted). Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 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. 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." 16 Citing no authority, Zheng Pet. Br. at 7. 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. 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. 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 -8- Id. at 170. In In 1 or unauthenticated evidence." 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. 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 Id. Id. at 157-58. Similarly, in Borovikova v. The BIA's use here of the 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. 13 2004 Department of State report on China submitted by Zheng 14 states: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 The The Chinese Government accepts the repatriation of citizens who have entered other countries or territories illegally. In the past several years, hundreds of Chinese illegal immigrants have been returned from the United States, and U.S. Embassy officials have been in contact with scores of them. In most cases, returnees are detained long enough for relatives to arrange their travel home. Fines are rare. U.S. officials in China have not confirmed any cases of abuse of persons returned to China from the United States for illegal entry. Persons identified as organizers or enforcers of illegal migrant trafficking are liable to face criminal 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, -9- 1 at 33 (June 2004).4 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). Although the BIA is required to consider an 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. -10- 1 it was not properly authenticated under the BIA's regulations.5 2 See Cao He Lin, 428 F.3d at 405. 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] . . . We reasoned that "[b]ecause 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. § 287.6 17 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. -11- 1 substantially on legitimate concerns about Zheng's credibility 2 and contrary evidence in the record. 3 the teaching of Cao He Lin.6 4 That removes this case from 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. 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 We 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. -12- 1 credible.7 2 abuse 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. We decide only that, in this case, the BIA did not 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. -13- 1 explain why any of the documents, which were dated from September 2 1999 to February 2004, could not have been submitted earlier. CONCLUSION 3 4 The BIA did not abuse its discretion in denying the 5 motion to reopen. The petition is denied. 6 been completed, the petitioner's request for a stay of removal is 7 also denied. -14- Our review having
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