Li Zhang v. Attorney Gen. of United States

• Decision Date: 14 November 2013
• Docket Number: No. 13-1435,13-1435
• Parties: LI ZHANG, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
• Court: U.S. Court of Appeals — Third Circuit

LI ZHANG, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

No. 13-1435

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Filed: November 14, 2013

NOT PRECEDENTIAL

On Appeal from a Decision and Order of the

Board of Immigration Appeals

(Agency No. A097-516-033)

Immigration Judge: Honorable Grace A. Sease

Submitted under Third Circuit LAR 34.1(a)

October 8, 2013

BEFORE: FUENTES, GREENBERG, and BARRY, Circuit Judges

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on a petition for review of a decision and order of the Board of Immigration Appeals (the "BIA"), denying a motion to reopen immigration proceedings raising the question of whether changed country conditions in China excuse procedural defects in a motion to reopen the proceedings. Petitioner, Li Zhang, unlawfully entered the United States in 2004 but in removal proceedings an immigration judge ("IJ") entered an order that the BIA upheld ordering Zhang removed. Zhang nonetheless remained in the United States and, seven years later, filed a motion that has led to the petition now before us to reopen her case. Although Zhang conceded that under 8 C.F.R. § 1003.2(c)(2) her motion was both untimely and successive, she argued that the BIA nevertheless should have considered it on its merits because she satisfied the exception to the § 1003.2(c)(2) bars on the basis of changed country conditions in China. The exception might have applied if Zhang provided evidence of changed circumstances in China that could not have been presented at her prior hearing and was material to her ultimate claim for relief. Specifically, Zhang, who converted to Catholicism after she arrived in the United States, argued to the BIA that she would be persecuted for her religious beliefs and practices if removed to China. The BIA held that Zhang had failed to establish changed country conditions and consequently denied her motion to reopen as both time- and number-barred.

We conclude that the BIA did not abuse its discretion in rejecting Zhang's motion to reopen. We agree that the individualized evidence Zhang presented in support of her motion was not authenticated properly and thus the BIA did not err when it did not consider it in deciding her motion. Based on the other evidence in the record, weconclude that the BIA properly rejected Zhang's motion to reopen because she rested her motion primarily on assertions of what were changed personal circumstances and the evidence she presented did not establish that conditions had worsened for Christians in China since 2004.

II. BACKGROUND

In 2004, Zhang left China with her young son, Si Liang, and entered the United States. Because she did not have a valid entry document, she was charged as removable on June 28, 2004. In the ensuing proceedings, Zhang conceded that she was removable, but petitioned for relief from removal, arguing that she qualified for asylum, withholding of removal, and protection under the Convention Against Torture based on China's family planning policy. At a hearing before an IJ, Zhang testified that, after giving birth to her first son, she attempted to have more children, but Chinese officials forced her to terminate two subsequent pregnancies. Zhang asserted that she came to the United States with her son because she wanted to have more children, but feared being compelled to have abortions in the future and feared being subjected to forced sterilization. The IJ found her testimony not to be credible and denied Zhang's petition on October 12, 2004, citing Zhang's demeanor at the hearing and discrepancies between her asylum application and her testimony. On March 10, 2005, the BIA upheld the IJ's ruling on appeal, both as to the merits of Zhang's application and the IJ's adverse credibility finding.

Zhang timely moved for the BIA to reopen her case. Zhang presented testimony from various witnesses to clarify the discrepancies that the IJ had found determinative in making the adverse credibility determination. The BIA denied her motion on May 11, 2005, because the proffered evidence was neither previously unavailable nor undiscoverable prior to the hearing before the IJ. Zhang did not seek judicial review of this ruling, but she nevertheless unlawfully remained in the United States.

On April 27, 2012, Zhang filed a second motion requesting that the BIA reopen her case. Although Zhang acknowledged that the motion was both untimely and successive, and thus ordinarily would have been procedurally defective, she contended that the BIA should consider her motion based on evidence of changed circumstances in China. Specifically, Zhang argued that she faced a well-founded fear of persecution in China based on her religious beliefs and practices.¹ Zhang pointed out that her husband, Yi Jian Chen, is a Catholic, and Zhang claimed that he fled to the United States in September 2008 after facing religious persecution for attending an underground church in China. Under hisinfluence, Zhang converted to Catholicism in the United States, and was baptized on December 25, 2011, and her two sons were baptized in 2010 and 2012. Zhang and her family regularly attend a Catholic church in New York.

Zhang claimed that, if removed to China, she would need to attend an underground "house" church in order to practice Catholicism. She also presented evidence that Chinese officials had been increasing their repression of persons attending house churches in recent years, and included reports demonstrating that some religious leaders and worshippers had been imprisoned and even tortured. As evidence for this persecution, Zhang included letters from friends and relatives in China who claimed to have faced mistreatment because of their religious beliefs, Chinese documents corroborating some aspects of the letters, various articles from publications, and several State Department country reports. According to Zhang, her husband was granted withholding of removal on the basis of this potential future persecution, although the record in this case does not reflect the reasons behind the decision in his case.

The BIA denied Zhang's motion to reopen on January 31, 2013, holding that Zhang had failed to establish that changed conditions in China justified an exception to the time and numerical limitations for filing motions to reopen. In reaching its result the BIA first declined to credit the official Chinese documents that Zhang presented because they had not been authenticated. The BIA also refused to credit the letters Zhang submitted from Chinese friends and relatives, finding that they were not substantiated and "appeared to be created for thepurpose of litigation." App. at 5. Relying on Zhang's other evidence, primarily the State Department reports, the BIA concluded "that [Zhang] has not shown that the arrest of leaders of underground churches and harassment of church members demonstrates that she will suffer mistreatment amounting to persecution upon her return to China based on her practice of Christianity." App. at 6.

Zhang timely petitioned for review of this ruling on February 15, 2013. On May 14, 2013, we granted her request for a stay of removal pending disposition of her petition.

III. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction over the motion to reopen under 8 C.F.R. § 1003.2(a). We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1), which explicitly confers jurisdiction to review final orders of removal on the courts of appeals and implicitly confers jurisdiction to review the denial of motions to reopen. See Khan v. Att'y Gen., 691 F.3d 488, 492-93 (3d Cir. 2012) (citing Cruz v. Att'y Gen., 452 F.3d 240, 246 (3d Cir. 2006)).

Motions to reopen immigration proceedings are "traditionally disfavored," Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001), and should be "granted only under compelling circumstances," Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). The existence of this high threshold is especially appropriate in removal proceedings, "where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." INS v. Doherty, 502 U.S. 314, 323, 112S.Ct. 719, 724-25 (1992). In light of these concerns, our review of the BIA's denial of a motion to reopen is "highly deferential: we review . . . for abuse of discretion." Guo, 386 F.3d at 562. We will uphold the BIA's denial of Zhang's motion to reopen unless it is "arbitrary, irrational, or contrary to law." Id. (internal quotation marks omitted). We review the BIA's legal conclusions de novo, and its factual findings relating to the motion to reopen for substantial evidence.² See Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).

IV. DISCUSSION

Motions to reopen should be granted only if the movant presents new evidence that is both material and "could not have been discovered or presented at" the previous hearing. 8 C.F.R. § 1003.2(c)(1).³ Motions to reopen are limited in both time and number: "a party may file only one motion to reopen" immigration proceedings, and "thatmotion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened." 8 C.F.R. § 1003.2(c)(2). There is an exception to the time and numerical bars, however, where a petitioner shows "changed circumstances, in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing." 8 C.F.R. § 1003.2(c)(3)(ii).

Zhang concedes that her second motion to reopen was both time- and number-barred. She hardly could avoid doing so as she filed it more than seven years after the BIA issued its final ruling in her case, and she previously had filed an unsuccessful motion to reopen. To overcome these bars, Zhang was required: (1) to produce evidence...