NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
09-3331
_____________
JIAN ZHAU ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from the Board of Immigration Appeals
BIA No. A070-838-800
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 16, 2010
Before: SLOVITER, BARRY, and SMITH, Circuit Judges
(Filed: October 4, 2010)
OPINION
Smith, Circuit Judge.
In Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2009), this Court concluded
that the Board of Immigration Appeals (“BIA”) erred in denying Jian Zhau Zheng’s
second motion to reopen, and we remanded the matter for further proceedings. On
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remand, the BIA again denied the motion to reopen. Zheng once more seeks our review.
We will vacate the BIA’s decision and remand for further proceedings.
I.
Zheng, a native and citizen of the People’s Republic of China, entered the United
States in 1993 and applied for political asylum based on his involvement in the Student
Democratic Movement in 1989. Although a hearing was conducted in 1995, the
transcript was lost and a second IJ hearing was scheduled in March of 1997. Counsel
appeared at the second hearing, but Zheng did not. As a result, the IJ entered an order of
exclusion in absentia. Zheng’s appeal to the BIA was denied as untimely on December
18, 1997, and he did not seek review in this court.
On January 23, 1998, Zheng married Cui Zhu Cheng, who is also a native and
citizen of China. She delivered a daughter, Sandy, within a week of the date of their
marriage. A second daughter, Judy, was born the following year on January 4, 1999.
The third child, a son named Kevin, arrived on June 21, 2000.
Zheng filed his first motion to reopen in June of 2002, asserting that the
untimeliness of his motion was excused because of a change in country conditions.1 His
motion, however, presented only a change in his personal circumstances as a result of
1
Under the regulations, an alien generally may file with the BIA one motion to reopen
his proceeding and that motion must be filed within 90 days of the date of the final
administrative decision. 8 C.F.R. § 1003.2(c)(2). The numeric and time limitations do not bar a
motion to reopen, however, if it is “based on changed circumstances arising in the country of
nationality . . . if such evidence is material and was not available . . . at the previous hearing[.]”
Id. § 1003.2(c)(3)(ii).
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having three children. The BIA denied the motion.
Four years later, in August of 2006, Zheng filed a second motion to reopen,
together with an application for political asylum. He asserted that this second motion to
reopen was not barred by the numeric and time limitations set forth in 8 C.F.R. §
1003.2(c)(2) because there had been an increase in the Chinese government’s imposition
of forced abortions and sterilizations, which constituted a change in country conditions.
Citing the fact that he had three children, Zheng claimed that he would be found in
violation of China’s Population and Family Planning Law if he was repatriated to China
and would be subjected to an involuntary sterilization procedure. As support, Zheng
attached to his motion nine documents.
In a decision dated June 21, 2007, the BIA denied Zheng’s second motion to
reopen. It declared that the birth of Zheng’s three children in the United States did not
constitute a change in country conditions that would permit filing this second motion to
reopen. As authority for the denial, the BIA cited Matter of J-W-S, 24 I. & N. Dec. 185
(BIA 2007). Zheng filed a timely petition for review.
In a decision dated November 26, 2008, this Court granted Zheng’s petition for
review, vacated the BIA’s decision, and remanded the matter for further consideration.
549 F.3d at 269. After discussing the numeric and time limitations applicable to motions
to reopen, we noted the three grounds for denying a motion to reopen and declared that
“regardless of which of these multiple bases for denying a motion to reopen that the BIA
is examining, when considering a motion to reopen the BIA ‘must actually consider the
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evidence and argument that a party presents.’” Id. at 266 (quoting Abdulai v. Ashcroft,
239 F.3d 542, 549 (3d Cir. 2001)). We noted that the “BIA did little more than quote
passages from its earlier decision in J-W-S without identifying-let alone discussing-the
various statements contained in the record before it that Zheng submitted in support of his
motion to reopen.” Id. at 268. We pointed out that the
BIA did not mention Zheng’s affidavit, the Changle City letter, the
Consular Information Sheet from 2003, the Commission Report for 2005,
the Fujian Regulation from 2002, Wu’s testimony to Congress from 2004,
or the two newspaper articles. Moreover, these documents were not
discussed in J-W-S, the case on which the BIA almost exclusively relied.
Given the BIA’s failure to discuss most of the evidentiary record in Zheng’s
case, as well as the conclusions that the Court of Appeals . . . reached in Li
concerning at least some of the documents in this case, we will vacate the
BIA’s denial of Zheng’s second motion to reopen his case and remand the
matter to the BIA for further proceedings.
Id. at 268-69 (citing J-W-S, supra, and Li v. Attorney General, 488 F.3d 1371 (11th Cir.
2007)).
On remand, in February of 2009, Zheng submitted fourteen additional documents
in support of his motion to reopen. In a decision dated July 28, 2009, the BIA again
denied Zheng’s second motion to reopen. It listed the nine documents initially submitted,
as well as the fourteen documents submitted on remand. The BIA observed that some of
the evidence was either unauthenticated or incomplete, and specifically noted that it had
already considered some of the supplemental documents in other BIA decisions. In
addition, the BIA acknowledged that we had criticized it for failing to address certain
evidence initially and declared that
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[t]he applicant’s evidence is not authenticated, not corroborated,
incomplete, and not fully consistent with recent government reports on
China. Unlike the finding . . . in Li . . . that the alien’s “other evidence
corroborated her anecdotal evidence of a change in policy in her province
and substantiated her fear that local officials in Fujian have the incentives
and discretion to sterilize women with more than one child,” we find that
the applicant’s evidence is insufficient to corroborate his anecdotal
evidence of such a change in the family planning policy or to substantiate
his fear of sterilization.
The BIA determined that Zheng did not satisfy his burden of proving that his proceedings
should be reopened, and it also stated that “an exercise of sua sponte authority to reopen
[wa]s not warranted.” This timely petition for review followed.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.2(c). We have jurisdiction under
8 U.S.C. § 1252(a). We review a denial by the BIA of a motion to reopen for an abuse of
discretion. Zheng, 549 F.3d at 264-65.
III.
Because Zheng’s motion to reopen is barred by both the time and numeric
limitations, there are “two related but analytically distinct issues” before us:
(1) whether [Zheng] has presented evidence of changed country conditions
sufficient to allow him to file a motion to reopen . . . and (2) whether the
new evidence [Zheng] has presented and the prior evidence in the record
together show that he has a reasonable likelihood of prevailing on his
asylum claim, i.e., whether he has presented a prima facie case for asylum.
The first is a threshold question . . . .
Shardar v. Attorney General, 503 F.3d 308, 312 (3d Cir. 2007) (footnote omitted). There
is no doubt that Zheng submitted ample new evidence, presenting nine documents
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initially with his second motion to reopen, and an additional fourteen documents upon
remand. We are unable to determine, however, whether the BIA is correct that this
evidence failed to demonstrate a change in country conditions. The BIA seemed to focus
on our observation that it “did not mention” seven of the nine documents initially
presented. Zheng, 549 F.3d at 268. It listed all of the evidence offered by Zheng, went
on to note that some of this evidence was not authenticated or incomplete, observed that
other evidence had been considered in earlier decisions by the Board, and set forth some
observations about Zheng’s affidavit, the 2005 Country Report, and the 2003 Consular
Information Sheet. The BIA then summarily concluded that Zheng’s evidence was
insufficient. It is unclear to us, however, whether the BIA followed our directive that it
“‘must actually consider the evidence and argument that a party presents.’” Id. at 266
(quoting Abdulai, 239 F.3d at 549).
The BIA’s approach is deficient because it completely fails to examine the
submitted evidence and to determine whether it supports Zheng’s claim that conditions in
China have changed. We remanded this case because the BIA did not “discuss most of
the evidentiary record[.]” 549 F.3d at 269. The BIA’s decision following remand still
lacks any reasoned discussion of either the initial submissions from Zheng or the
additional fourteen documents submitted on remand. Without a substantive analysis by
the BIA of the evidence adduced by Zheng, we are unable to discern its reasons for
denying the motion to reopen. See Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir. 2006)
(reiterating that the BIA is “required [to] consider the issues raised, and announce its
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decision in terms sufficient to enable a reviewing court to perceive that it has heard and
thought and not merely reacted”) (internal quotation marks and citation omitted). Indeed,
we note that 8 C.F.R. § 1003.2(c)(3)(ii) provides that reopening may be granted if
“material” evidence establishes changed country conditions. This materiality requirement
contemplates a qualitative assessment by the BIA of the evidence submitted. Because the
BIA has still not conducted such an assessment, we will vacate its decision and remand
yet again so the BIA may address Zheng’s evidence and explain whether that evidence
supports his claim of changed country conditions and thereby warrants reopening his
exclusion proceeding.
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