FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHANLING JIANG,
Petitioner, No. 06-73470
v.
Agency No.
A095-446-775
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 15, 2010—Pasadena, California
Filed September 26, 2011
Before: Harry Pregerson, Kenneth F. Ripple,* and
Susan P. Graber, Circuit Judges.
Opinion by Judge Pregerson
*The Honorable Kenneth F. Ripple, Senior Circuit Judge for the United
States Court of Appeal for the Seventh Circuit, sitting by designation.
18435
JIANG v. HOLDER 18437
COUNSEL
Daliah Setareh, Michael Ortiz, Yunie K. Hong, and Joann
Lee, Legal Aid Foundation of Los Angeles, Los Angeles, Cal-
ifornia, for the petitioner.
Stuart S. Nickum, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C., for the
respondent.
OPINION
PREGERSON, Circuit Judge:
Zhanling Jiang, a native and citizen of China, petitions for
review of the Board of Immigration Appeals’ (BIA) decision
denying his applications for adjustment of status, asylum,
withholding of removal, and protection under the Convention
Against Torture. Jiang also appeals both the immigration
judge’s (IJ) denial of his motion for a continuance and the
BIA’s denial of his motion to remand to the IJ for reconsider-
18438 JIANG v. HOLDER
ation of his application for adjustment of status. We grant the
petition as to Jiang’s adjustment of status application and
remand to the BIA for further proceedings.
I.
Substantial evidence does not support the IJ’s finding, and
the BIA’s conclusion, that Jiang was married and thus ineligi-
ble for adjustment of status as the unmarried son of a United
States citizen. See Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th
Cir. 2008). Jiang submitted two documents that were issued
in China to establish that he was single: an “Affidavit of Sin-
gle” issued by the China Family Planning Commission, and
a notarial certificate indicating that there was no record of a
marriage registration for Jiang found in the Marriage Regis-
tration Authority of Jiang’s domicile. The IJ refused to accept
those documents because they were not authenticated by con-
sular certification through a United States consulate in China,
in accordance with 8 C.F.R. § 287.6. The IJ also prohibited
Jiang from authenticating the documents through his own tes-
timony.
[1] But “[d]ocuments may be authenticated in immigration
proceedings through any recognized procedure, such as those
required by INS regulations or by the Federal Rules of Civil
Procedure. The procedure specified in 8 C.F.R. § 287.6 pro-
vides one, but not the exclusive method.” Khan v. INS, 237
F.3d 1143, 1144 (9th Cir. 2001) (per curiam) (internal quota-
tion marks and citations omitted). Thus, the IJ erred by refus-
ing to allow Jiang to authenticate the foreign documents
through his own testimony. See Vatyan v. Mukasey, 508 F.3d
1179, 1183 (9th Cir. 2007) (holding that the IJ must consider
a petitioner’s testimony as evidence that is relevant to the
issue of a document’s authenticity). And the IJ also erred by
refusing to accept as evidence the attestation in the Notarial
Certificate without consular certification, in violation of Fed-
eral Rule of Civil Procedure 44(a)(2)(C)(ii) (permitting the
JIANG v. HOLDER 18439
lack of a foreign record “to be evidenced by an attested sum-
mary with or without a final certification”).
[2] The documents that Jiang offered as proof of his
unmarried status, had they been accepted into evidence,
would have demonstrated that Jiang is the unmarried son of
a United States citizen and is, therefore, eligible for adjust-
ment of status. See 8 U.S.C. §§ 1255(a), 1153(a)(1). Thus,
substantial evidence does not support the IJ’s finding to the
contrary.
II.
The IJ also abused her discretion by denying Jiang’s
motion for a continuance, and the BIA erred in upholding the
denial. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.
2009). We weigh four factors to determine whether the BIA
has abused its discretion in denying a continuance: 1) the
importance of the evidence, 2) the unreasonableness of the
immigrant’s conduct, 3) the inconvenience to the court, and
4) the number of continuances previously granted. Cui v.
Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008) (citing Baires
v. INS, 856 F.2d 89, 92-93 (9th Cir. 1988)).
[3] Jiang was not given adequate notice before the merits
hearing that the IJ would require authentication of the foreign
documents through a United States consulate in China. The
BIA mischaracterized the facts when it asserted that Jiang’s
counsel had nearly five months’ notice that authentication
would be required and that Jiang had made no effort to
authenticate the documents. At the October 14, 2004 hearing,
the only instruction from the IJ to Jiang’s counsel in regard
to proving Jiang’s unmarried status was “to have him make a
declaration or something.” Following that instruction, Jiang
acquired the Affidavit of Single and presented it to the IJ at
the next hearing on December 9, 2004.
The government first objected to the authenticity of the
Affidavit of Single at the December 9, 2004 hearing.
18440 JIANG v. HOLDER
Although Jiang’s counsel believed authentication was not
necessary because the same document had been accepted at
Jiang’s brother’s adjustment hearing without authentication,
Jiang’s counsel offered to authenticate the Affidavit of Single
through Chinese authorities. The IJ did not disapprove of this
method of authentication but rather stated, “I think you should
make an attempt at least.” Jiang’s counsel did so, first by
attempting to authenticate the document through the Chinese
embassy in the United States, and then through the Chinese
authorities in China, who subsequently issued the Notarial
Certificate. It was only on the day of the merits hearing on
March 8, 2005, that the IJ indicated that she would only
accept into evidence documents with United States consular
certification. Jiang then requested a continuance so that he
could authenticate the foreign documents through the United
States consulate in China. The IJ denied Jiang’s request.
[4] While Jiang should have been permitted to authenticate
the documents through means other than United States con-
sular certification, see Vatyan, 508 F.3d at 1183, Jiang
received no notice until the merits hearing that the IJ would
not accept authentication by any others means. Thus, Jiang’s
request for a short continuance was not unreasonable. See
Cui, 538 F.3d at 1293.
The fact that Jiang was able to obtain consular authentica-
tion less than one month after the merits hearing shows that
the immigration court would not have been greatly inconve-
nienced by a continuance. See id. at 1292 (“a myopic insis-
tence upon expeditiousness in the face of a justifiable request
for delay can render the immigrant’s statutory rights merely
an empty formality”) (internal quotation marks omitted). Nor
is there any indication in the record that the government
opposed Jiang’s request for a continuance. And though sev-
eral continuances were previously granted in Jiang’s case,
only one of which was explicitly requested by Jiang, we have
found that “the interest in administrative efficiency cannot
justify the pretermission of [the petitioner’s] claims where the
JIANG v. HOLDER 18441
other factors we have addressed . . . all militate strongly in
[the petitioner’s] favor.” Karapetyan v. Mukasey, 543 F.3d
1118, 1132 (9th Cir. 2008), superseded by statute on other
grounds as stated in Owino v. Holder, 575 F.3d 956, 958 (9th
Cir. 2009) (per curiam).
[5] There is no evidence more critical to Jiang’s adjust-
ment of status claim than the documents from the Chinese
government, which state that he is unmarried according to
Chinese law. The authenticated foreign documents conclu-
sively establish Jiang’s legal status as unmarried, making him
statutorily eligible for adjustment of status as the unmarried
son of a United States citizen. See 8 U.S.C. §§ 1255(a),
1153(a)(1).
***
[6] Jiang is statutorily eligible for adjustment of status as
the unmarried son of a United States citizen. We therefore
grant Jiang’s petition for review and remand to the BIA for
it to exercise its discretion over Jiang’s adjustment of status
application. 8 U.S.C. §§ 1255(a); see INS v. Ventura, 537 U.S.
12, 16 (2002) (per curiam). Because we remand for the BIA
to reconsider Jiang’s adjustment of status application, we do
not reach Jiang’s claims for asylum, withholding of removal,
and protection under the Convention Against Torture. We
also need not address Jiang’s due process claims or the denial
of Jiang’s motion to remand.
PETITION GRANTED and REMANDED.