NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2681
___________
JIAN ZUAU ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A070-838-800)
Immigration Judge: Honorable William Strasser
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 8, 2012
Before: RENDELL, VANASKIE and GARTH, Circuit Judges
(Opinion filed: March 12, 2012)
___________
OPINION
___________
PER CURIAM
As the parties are familiar with the background of the case, which we have set
forth previously in Zheng v. Attorney Gen. of the United States, 549 F.3d 260 (3d Cir.
1
2008) (“Zheng I”), and Zheng v. Attorney Gen. of the United States, 396 F. App‟x 812
(3d Cir. 2010) (“Zheng II”), we will only briefly summarize the background here
(although we will refer to other facts as they become relevant to our analysis).
Essentially, Jian Zhau Zheng, whose exclusion order became final in 1997, sought
to reopen his immigration proceedings in the Board of Immigration Appeals (“BIA”). In
2006, he filed his second motion to reopen,1 which the BIA denied. Zheng then filed a
petition for review. We granted the petition and vacated the BIA‟s order on the basis of a
procedural deficiency in the BIA‟s analysis. In short, and without implying that the BIA
came to the wrong result, we held that the matter had to be remanded because the BIA
needed to fully consider the evidence Zheng presented. Zheng I, 549 F.3d at 272.
On remand after Zheng I, Zheng submitted additional evidence (14 additional
documents) to the BIA. The BIA again denied the motion to reopen. Zheng filed another
petition for review, which we also granted. Reviewing the matter, we described the
BIA‟s ruling and stated that it was unclear whether the BIA followed the “directive that it
„must actually consider the evidence and argument that a party presents.‟” Zheng II, 396
F. App‟x at 814. We further explained:
1
Generally, an alien 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). Zheng sought to avoid the time- and number-bars by
showing that his motion to reopen was “based on changed circumstances arising in the
country of nationality . . . if such evidence is material and was not available . . . at the
previous hearing[.]” Id. at § 1003.2(c)(3)(ii).
2
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.
Id. at 815. Stating also that the BIA had not conducted a qualitative assessment of the
evidence submitted, as it must to analyze material evidence of changed country
conditions, we vacated the BIA‟s decision. Id. We remanded the matter so that 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.”
Id.
On remand before the BIA, Zheng again submitted additional documents (totaling
192 pages). He provided documents about two individuals who purportedly were
sterilized in China after having two children in the United States; more information about
Chinese household registration requirements for children born in the United States; and
additional State Department and Congressional reports on China. The materials also
included a “review and evaluation” of the State Department Report and a packet of cases
about forced abortions, infanticide, and other examples of coercive family planning
originally collected by an anonymous Chinese national and prepared by the China Aid
Association and Women‟s Rights without Frontiers for a Congressional hearing.
3
The BIA again denied Zheng‟s motion, this time issuing a seven-page, single-
spaced decision to support its ruling that Zheng‟s evidence was insufficient to establish a
material change in the enforcement of the population control policy. The BIA also
declined to exercise its authority to reopen the proceedings sua sponte, holding that
Zheng had not shown an exceptional situation warranting reopening.
Zheng presents another petition for review. We have jurisdiction under 8 U.S.C.
§ 1252(a). We review the BIA‟s order denying the motion to reopen for abuse of
discretion. Zheng I, 549 F.3d at 264-65.
On review, we conclude that on this remand, the BIA thoroughly considered the
evidence, as we expected, and corrected the procedural deficiency in its analysis that we
identified in the earlier decisions in this case. We hold that the BIA‟s conclusion, based
on a full analysis of the evidence, was not an abuse of discretion. 2
As Zheng argues, the BIA did not discuss every piece of evidence in detail. For
instance, the BIA declined to address evidence it had already addressed in earlier
precedential decisions (including documents submitted after the first remand, namely the
2
Zheng does not seem to challenge the BIA‟s decision not to reopen the
proceedings sua sponte. The BIA‟s decision to decline to exercise its discretion to reopen
a case sua sponte is generally unreviewable, see 8 U.S.C. § 1252(a)(2)(B)(ii); Calle-
Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003), although the Court can review the
BIA‟s ruling on whether a petitioner has shown an “exceptional situation” or, stated
otherwise, whether a petitioner has established a prima facie case for sua sponte relief.
See Cruz v. Att‟y Gen., 452 F.3d 240, 250 (3d Cir. 2006). Even if Zheng were to present
this type of argument, however, it would be without merit. There is no evidence that the
BIA is ignoring a general policy it had established as there was in Cruz. See 452 F. 3d at
246 n.3 & 249-50.
4
1999 Changle City Family Planning Office handbook and opinion, the 2003
Administrative Decision of the Fujian Province Family Planning Committee, as well as
the earlier submitted testimony of John Aird). However, here the BIA incorporated by
reference the reasoning in such cases as Matter of S-Y-G-, 24 I. & N. Dec. 247, 252 (BIA
2007), and Matter of J-W-S-, 24 I. & N. Dec. 185, 189-90 (BIA 2007).
The BIA otherwise discussed the other evidence in detail. It rejected Zheng‟s
personal evidence as unpersuasive for establishing changed country conditions, noting
that the portion of his affidavit concerning the enforcement of the family planning laws in
China was not based on personal knowledge. The BIA stated that Zheng had not
supported his claims related to forced sterilization of his neighbors in China (or even
asserted that the alleged incidents were related to the birth of foreign-born children). A
letter from the Changle City Family Planning Office also did not persuade the BIA on the
grounds that it was a photocopy without the name or signature of an official. The BIA
may “properly discount” documents that are not authenticated. See Chen v. Att‟y Gen., -
-- F.3d ---, No. 09-3459, 2011 U.S. App. LEXIS 5358, at *14 (3d Cir. Mar. 18, 2011).
The BIA further acknowledged that the letter indicated that Zheng would have to undergo
the same family planning procedures as a local resident would, but noted that the letter
did not specify the penalties for refusing sterilization or demonstrate a reasonable
likelihood that he would be sterilized or face any other sanction that would qualify as
persecution.
5
The BIA considered the State Department Reports for 2005, 2007, and 2009, and
read them to mean that the Chinese government continues its population control policy,
with enforcement and penalties varying by region, with reports of sporadic human rights
violations by local officials. The BIA noted that violators may have to pay a social
compensation fee of varying amounts, but that Zheng did not prove that any such fee
imposed on him would be persecutory. The BIA also concluded that the State
Department Reports were more reliable than the review and evaluation of them that
Zheng submitted, not only because State Department Reports are generally considered
highly probative evidence but also because the reviewer did not provide a curriculum
vitae, based conclusions in speculation instead of personal knowledge, and demonstrated
an unfavorable bias against the State Department and all government agencies. The BIA
separately noted that the reviewer conceded that there is no universal consensus on
whether forced abortions occur and stated that the review did not purport to address
individual claims. State Department Reports may serve as substantial evidence, and the
BIA provided a well-reasoned explanation to permissibly credit the Reports over other
evidence. See Yu v. Att‟y Gen., 513 F.3d 346, 349 (3d Cir. 2008). We have approved of
similar conclusions by the BIA based on the 2007 State Department Report in an asylum
case brought by a Chinese national from Fujian province who was the mother of two
children born in the United States. See Chen, 2011 U.S. App. LEXIS 5358, at *9-10. In
Chen, we discussed Matter of H-L-H-, which Zheng tries to distinguish. However, as in
6
Chen, Matter of H-L-H- “contains a comprehensive discussion that persuasively
addresses many of the issues before us.” 2011 U.S. App. LEXIS 5358, at *5. In Matter
of H-L-H-, the BIA noted that the 2007 State Department Report discussed evidence that
there were no cases of forced sterilizations in the ten previous years. 25 I. & N. Dec.
209, 214 (BIA 2010).
The BIA also ruled that neither the Congressional-Executive Commission on
China‟s 2005 Annual Report nor a March 14, 2006 letter from the “Administrative Office
of the National Population and Family Planning Committee” (relating to the application
of family planning laws to citizens returning from abroad) altered the BIA‟s assessment,
in Matter of J-W-S-, 24 I & N. Dec. 185 (BIA 2007), that children born in the United
States are regarded as U.S. citizens and not counted for population control purposes and
that there is no national policy of forced sterilization of returning citizens with a second
child born outside of China. The packet of cases prepared for a Congressional hearing
was described, accurately, as anecdotal evidence that did not convince the BIA that there
is no country-wide campaign of forcible sterilization of returning nationals with children.
The BIA also declined to rely on incomplete 2007, 2009, and 2010 Congressional-
Executive Commission on China Annual Reports, particularly because it appeared that
crucial aspects of the reports, such as the sections about the status of women, were
missing. The BIA emphasized that the interference with women‟s reproductive lives
continued, and that it varied by locality. A conclusion that conditions continued
7
undermines Zheng‟s claim of changed circumstances. The BIA additionally noted that
the reports, by the references to unspecified “remedial measures” or abortion as an
“official policy instrument,” did not address the treatment of those with foreign-born
children or demonstrate that policy violators would face persecution
The affidavits and statements that Zheng submitted regarding the forced
sterilization of parents with foreign-born children were held not to be persuasive. The
BIA concluded that two, from Renzum Yuan and Fengchai Chai, were not even affidavits
because they were not sworn before someone authorized to administer oaths. The BIA
questioned the declarants‟ identity, their reliability, and the substance of the statements,
noting additionally that the affidavits were copies from other cases and supported by
unauthenticated documents. Also, Yuan‟s appeared to have been made for purposes of
his own litigation. Discussing the affidavits of Jin Fu Chen and Jiang Zhen Chen, the
BIA noted that not only were they also copies from other cases and supported by
unauthenticated documents, but also they related to parents of children born in Japan and
presented no specific circumstances surrounding the abortions. Other Family Planning
documents were similarly questioned as unauthenticated. As noted above, the BIA may
accord less weight to unauthenticated documents. See Chen, 2011 U.S. App. LEXIS
5358, at *14.
The BIA ruled that the remaining documents also did not warrant reopening. The
2003 Consular Information Sheet was found not to discuss the population control policy
8
or show that nationals returning to Fujian province with foreign born children would be
persecuted. Although the Population and Family Planning Regulation discussed fines
and rewards to achieve compliance with the law, it did not describe sanctions amounting
to persecution. The testimony of Harry Wu was described as without a clear foundational
basis. His testimony, as well as articles in the record, was criticized as not providing
information specific to the return of nationals to Fujian province. The BIA discussed the
issues of household registration, use of travel documents and the law of entries and exits
in China, citizenship issues for foreign-born children of Chinese descent, and sanctions
for returning Chinese nationals, and concluded that none of the evidence demonstrated
that parents of foreign-born children faced persecution or that the Chinese government
has changed the way it treats the parents of foreign born children.
In short, unlike in its earlier rulings in Zheng‟s case, the BIA considered Zheng‟s
evidence and conducted a case-specific analysis of the evidence, as it must, see Chen,
2011 U.S. App. 5358, at *10, in coming to its conclusion that Zheng did not demonstrate
a change in country conditions.3 The BIA did not abuse its discretion in denying
Zheng‟s motion to reopen. Accordingly, we will deny Zheng‟s petition for review.
3
We reject Zheng‟s argument that the BIA misunderstood or mischaracterized the
basis for Zheng‟s motion to reopen.
9