Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1654
GI KUAN TSAI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard, Circuit Judge,
and Casper,* District Judge.
Cora J. Chang on brief for petitioner.
Gregory M. Kelch, Trial Attorney, United States Department of
Justice, Office of Immigration Litigation, Linda S. Wernery,
Assistant Director, Civil Division, and Stuart F. Delery, Acting
Assistant Attorney General, Civil Division, on brief for
respondent.
March 6, 2013
*
Of the District of Massachusetts, sitting by designation.
CASPER, District Judge. Petitioner Gi Kuan Tsai seeks
review of the decision by the Board of Immigration Appeals ("BIA")
denying his untimely motion to reopen removal proceedings on the
basis that he failed to meet the exception to the ninety-day filing
requirement for changed country conditions material to the claim
for asylum. Finding no abuse of discretion, we deny Tsai's
petition for review.
I. Facts & Background
Tsai is a native and citizen of China who entered the
United States at Los Angeles International Airport on May 8, 2000
using a counterfeit passport and counterfeit non-immigrant visa,
both in the name of Zhao Jian Min. Tsai was detained by
immigration officials and on May 9, he gave a sworn statement to an
Immigration and Naturalization Service officer. When asked the
purpose of his visit, Tsai replied, "I come here to make a living.
The American policy is more human and they respect human rights."
Tsai explained that he had opened a restaurant in China, but did
not want to pay the "many taxes." Tsai also mentioned that he
wanted to have more children, but did not mention his wife being
forced to have an IUD implanted or being forced to have an
abortion. At a subsequent interview with an immigration officer on
May 23, 2000, Tsai said that he had only one child because Chinese
officials made his wife get an abortion when she got pregnant again
in violation of the one child policy. He added that he was not
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asked about his wife's abortion during the interview on May 9.
Tsai also said he was afraid to return to China because he would
like to have more children and would be apprehended, jailed and
fined for fleeing China illegally.
On May 7, 2001, Tsai filed an "Application for Asylum and
for Withholding of Removal." In the application, he explained that
after his wife gave birth to their son, the Chinese authorities
forced his wife to have an IUD implanted. According to Tsai, his
wife became pregnant despite the presence of the IUD and Chinese
officials forced her to have an abortion.
On January 10, 2003, Tsai appeared before an Immigration
Judge ("IJ") and testified about his wife's forced abortion and
closing his eatery because he refused to pay the taxes. The IJ
denied Tsai's application for asylum, withholding of removal and
protection under the Convention Against Torture ("CAT"). The IJ
noted that the record did not contain any evidence apart from
Tsai's own testimony concerning his wife's abortion or his tax
debt. The IJ found that Tsai's testimony "cannot be given any
credence" because (1) he "consistently lied" by using a false name,
a fraudulent passport and a fraudulent non-immigrant visa upon
arrival in the United States; and (2) he failed to mention his
wife's abortion when questioned about the reason he came to the
United States during his initial sworn statement during the May 9
interview upon arrival in the U.S. The IJ further noted that Tsai
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had failed to provide documentary evidence of his wife's abortion
and IUD and his tax issues. The IJ found that Tsai could have
obtained these materials because he was able to proffer some
documents from China such as his wife's and son's birth
certificates. Based on Tsai's lack of credibility and lack of
corroborating evidence supporting his claims, the IJ denied Tsai's
application.
On appeal, the BIA affirmed the IJ's decision. The BIA
noted that the IJ's credibility analysis was "minimal," but upon
its own review of the record the BIA declined to set aside the IJ's
decision. The BIA based its decision on the material inconsistency
between Tsai's sworn statement on May 9 and his asylum application
and later testimony. Given this inconsistency, "[Tsai's] testimony
alone is not sufficient to sustain the burden of proof." The BIA
considered that Tsai failed to offer corroboration and "did not
convincingly explain the absence of corroboration of his wife's
alleged hospitalization, abortion or the insertion of an IUD,"
which were "reasonably available . . ., especially in light of the
other documents he received from China."
Tsai petitioned for judicial review of the BIA's
decision. See Tai v. Gonzales, 423 F.3d 1 (1st Cir. 2005). This
Court denied Tsai's petition and held that the BIA's adverse
credibility finding was supported by substantial evidence because
it was based on Tsai's initial failure to mention his wife's
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contraception and abortion, which was a discrepancy that "went to
the heart of [Tsai's] claim." Id. at 5.
On September 14, 2011, many years after the IJ's 2003
decision and the BIA's 2004 decision, Tsai filed a motion to reopen
his removal proceedings. As required to excuse his failure to file
a motion to reopen within the ninety-day regulatory window, 8
C.F.R. § 1003.2(c)(3)(ii), Tsai argued that "his allegations of new
facts arising in China constitute changed country circumstances
that materially affect his eligibility for asylum." In support of
his motion, he offered: (1) his own sworn affidavit; (2) unsworn
letters purporting to be from his wife, son and neighbor;(3)
unauthenticated hospital records; and (4) an April 2011 State
Department report on China.
Tsai claimed in his affidavit that during a telephone
call with his wife in February 2011, he told her that United States
citizens enjoy "democracy, freedom and human rights," that the
Chinese government is "inhumane" and is the only government that
"forces" people to undergo abortions and sterilizations, and that
Chinese citizens should oppose the "coercive family planning
policy." Tsai claimed that his wife discussed these remarks with
their neighbors in China. Tsai also claimed that in March 2011, he
sent his wife "many reports and articles" that "reveal the cruelty
of Chinese government to slaughter lives and persecute women under
the coercive family policy and . . . criticize the Chinese
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government to undermine human rights of Chinese people" and asked
her to distribute them to their neighbors. According to Tsai, his
wife did so and was arrested, beaten and detained by the police in
April 2011 for these actions.
Tsai also provided written statements purporting to be
from his wife, his son and a neighbor along with English
translations of those documents. They were all dated July 15,
2011, written in support of Tsai's motion to reopen and contained
very similar (if not identical) language recounting the same
account of events Tsai made in his affidavit.1 A prescription note
from Changle City Hospital indicated that Tsai's wife was
prescribed medication for a "[s]oft tissue contusion" on April 11,
2011. Tsai also provided his wife's medical records from the
Medical Institution of Fuzhou City indicating that she experienced
symptoms "after [being] beaten by someone yesterday." Tsai's wife
explained in her letter that the hospital declined to provide
1
For example, Tsai's wife's letter said, "In March 2011,
after my husband collected some reports and articles to reveal the
cruelty of Chinese government on slaughtering lives by executing
coercive family planning policy and on persecuting many women and
to denounce Chinese government for violation of people's human
rights, he mailed these materials to our home in China."
Similarly, Tsai's son's letter explained that his father sent
"reports and articles [that] revealed the cruelty of Chinese
government to slaughter lives and persecute women under the
coercive family planning policy and to criticize [the] Chinese
government to undermine human rights of Chinese people." Tsai's
wife expressed that her "neighbors and I were shocked after we read
through these materials" and Tsai's neighbor also recounted that
"[w]e were shocked after reading those reports and articles."
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authentication of her medical records and prescription note. Tsai
did not provide any official documentation of his wife's arrest.
According to Tsai's wife, she went to the police station and asked
for official documentation of her arrest, but was ordered to go
home.
On April 25, 2012, the BIA denied Tsai's motion to reopen
the removal proceedings. The BIA considered Tsai's evidence and
found that it did not "satisfy the heavy burden of establishing
materially changed circumstances." The BIA also stated that the
evidence was insufficient with regard to the documentation
"allegedly issued by a hospital, which has not been authenticated
in any manner" and in light of the IJ's previous adverse
credibility determination. Tsai timely filed this petition seeking
review of the BIA's denial of his motion to reopen.
II. Analysis
We review the BIA's denial of a motion to reopen for
abuse of discretion, which means an error of law or exercise of
judgment in an arbitrary and capricious or irrational manner. Raza
v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007). We will "uphold
the [BIA's] subsidiary findings of fact as long as they are
supported by substantial evidence," and review "embedded legal
conclusions de novo," and "judgment calls for abuse of discretion."
Vaz Dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir. 2010). Our review
"is highly deferential, focusing on the rationality of the decision
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to deny reconsideration and reopening, not on the merits per se, of
the underlying claim." Abdullah v. Gonzales, 461 F.3d 92, 99 (1st
Cir. 2006).
"Motions to reopen removal proceedings are disfavored as
contrary to 'the compelling public interests in finality and the
expeditious processing of proceedings.'" Raza, 484 F.3d at 127
(quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005)).
"As a result, the BIA enjoys considerable latitude in deciding
whether to grant or deny such a motion," id., and a person seeking
to reopen such proceedings bears a "heavy burden." Ven v.
Ashcroft, 386 F.3d 357, 361 (1st Cir. 2004) (quoting In re Coelho,
20 I. & N. Dec. 464, 472 (BIA 1992)) (internal quotation marks
omitted).
"There are both substantive and procedural bars to
reopening removal proceedings." Smith v. Holder, 627 F.3d 427, 433
(1st Cir. 2010). Procedurally, a petitioner is limited to a single
motion to reopen a removal proceeding, which must be submitted
within ninety days of the final administrative decision. 8 C.F.R.
§ 1003.2(c)(2). However, these procedural limitations are
"relaxed" if a petitioner "makes a convincing demonstration of
changed conditions in his homeland." Smith, 627 F.3d at 434
(quoting Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir. 2008))
(internal quotation marks omitted). "The change in conditions
'must be material to the underlying substantive relief that the
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alien is seeking . . . and the evidence tendered in support thereof
must have been unavailable during the prior proceedings.'" Id.
(omission in original) (quoting Raza, 484 F.3d at 127).
Substantively, the BIA may deny a petition if it determines that
the movant has failed to meet either of two requirements: (1)
establish a prima facie case for the underlying relief sought; and
(2) introduce previously unavailable, material evidence. Id. at
433.
Tsai brought his motion to reopen more than ninety days
after the BIA's final administrative decision. Because he missed
the ninety-day window, Tsai must demonstrate changed conditions in
China that are material to his application for asylum, withholding
of removal and CAT protection. The BIA denied Tsai's motion
because the evidence he presented in support of his motion failed
to "satisfy the heavy burden of establishing materially changed
circumstances." The heart of Tsai's challenge to the BIA's ruling
is his contention that the BIA failed to give adequate weight to
that evidence.
Tsai argues that the BIA erred as a matter of law in
refusing to accord proper weight to the supporting documents and by
denying his motion based in part on the IJ's prior adverse
credibility finding. Specifically, Tsai argues that the BIA erred
in considering that the hospital records were not "authenticated in
any matter" when rendering its decision and such alleged lack of
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authentication should not be detrimental to his motion to reopen.
Tsai asserts that "to the extent that he is facing the prospect of
harm and persecution in China, it is equally impractical for him to
personally have the Chinese government authenticate his wife's
hospital medical record" pursuant to 8 C.F.R. § 1287.6. However,
in considering materials offered in support of a motion to reopen,
the "BIA has discretion to deem a document's lack of authentication
a telling factor weighing against its evidentiary value," Hang Chen
v. Holder, 675 F.3d 100, 107 (1st Cir. 2012), notwithstanding the
difficulty a Chinese citizen may have authenticating the record
pursuant to 8 C.F.R. § 1287.6. See Xiu Xia Zheng v. Holder, No.
12-1325, 2013 WL 491965, at *3 (1st Cir. Feb. 11, 2013) (holding
that it was not an abuse of discretion for the BIA to discount the
evidentiary value of the Chinese petitioner's evidence where it
lacked authentication pursuant to 8 C.F.R. § 1287.6 or an
alternative authentication method); cf. Yan v. Gonzales, 438 F.3d
1249, 1256 n.7 (10th Cir. 2006) (explaining that because the
"authentication procedures [described in 8 C.F.R. § 1287.6]
generally require attestation of documents by the very government
the alien is seeking to escape, courts generally do not view the
alien's failure to obtain authentication as requiring the rejection
of a document," but, the IJ may find this evidence to be of limited
evidentiary value).
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Moreover, the BIA's decision did not solely rest on the
limited weight ascribed to an unauthenticated document, but also
relied upon consideration of an IJ's prior adverse credibility
finding against the petitioner. Giving limited weight to
unauthenticated evidence where the petitioner's own credibility
remains at issue is an appropriate exercise of discretion. See Le
Bin Zhu v. Holder, 622 F.3d 87, 92 (1st Cir. 2010) (noting that it
is "well within the BIA's discretion to find that lack of
authentication undermines the evidentiary value of a document" and
that "[t]his is especially the case when, as here, the BIA's
decision to do so is supported by an adverse credibility finding").
Tsai further argues that it was error for the BIA to rely
on this lack of authentication because authenticity is a question
of fact and the BIA, as an appellate body, should not engage in
factfinding. Although Tsai is correct that "the Board will not
engage in factfinding in the course of deciding appeals," 8 C.F.R.
§ 1003.1(d)(3)(iv), this case concerns a motion to reopen and not
an appeal of an IJ's decision. Furthermore, as discussed above,
this Court has repeatedly held that the BIA may assess the
authenticity of a petitioner's evidence when deciding a motion to
reopen. See, e.g., Zheng, 2013 WL 491965, at *3.
The BIA was also within its discretion in finding that
Tsai's affidavit and the letters from Tsai's wife, son and neighbor
did not satisfy the "heavy burden" of establishing materially
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changed circumstances given that they were self-serving; i.e., each
was produced for the purpose of reopening Tsai's final order of
removal and written by the petitioner's family or a person close to
the petitioner. See Le Bin Zhu, 622 F.3d at 92 (holding that the
BIA was within its discretion in finding that a letter allegedly
sent by the petitioner's mother did not establish material changed
circumstances); Zheng v. Mukasey, 546 F.3d 70, 72 (1st Cir. 2008)
(noting that "[a]bsent substantiation, self serving affidavits from
petitioner and her immediate family are of limited evidentiary
value").2
Tsai also argues that the BIA should have granted his
motion to reopen because he made a prima facie showing of
eligibility for asylum. However, the question of whether a
petitioner has presented sufficient evidence of changed country
conditions to excuse the untimely filing of a motion to reopen is
distinct from the question of whether this evidence, along with the
evidence already in the record, shows that the petitioner has a
reasonable likelihood of prevailing on his asylum claim. See
Smith, 627 F.3d at 433. The BIA did not abuse its discretion in
2
Tsai also argues that the BIA failed to evaluate whether
his alleged new facts are material. This argument is without merit
because the BIA considered the evidence upon which Tsai relied in
support of his motion and explained that it did "not find that the
evidence presented satisf[ied] the heavy burden of establishing
materially changed circumstances" and we have found that this
determination does not constitute an abuse of discretion.
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concluding that Tsai failed to make a convincing demonstration of
materially changed conditions in China, and thus Tsai did not make
the showing necessary to relax the procedural limitations such that
he could file an untimely motion to reopen. Accordingly, the BIA
did not need to address the merits of Tsai's claim, that is,
whether or not he made a prima facie case for eligibility for
asylum. See id. at 440 (treating the establishment of a change in
country conditions that would excuse the petitioner's late filing
and the showing of a prima facie case of eligibility for asylum as
discrete and sequential inquiries); Larngar v. Holder, 562 F.3d 71,
80 (1st Cir. 2009) (same).
III. Conclusion
For the foregoing reasons, Tsai’s petition for review is
denied.
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