Fei Wang v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

FEI WANG; JUAN ZHEN YE, No. 14-70463

Petitioners, Agency Nos. A098-177-751
A098-177-752
v.

JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted July 12, 2017**
Seattle, Washington

Before: MURPHY,*** McKEOWN, and NGUYEN, Circuit Judges.

Petitioners Fei Wang and Juan Zhen Ye petition for review of the decision

denying their motion to reopen their removal proceedings. Petitioners argue that if

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
removed to China, they will be subject to persecution, including forced

sterilization, for violating China’s one-child family planning policy and for their

Protestant Christian religious beliefs. We grant in part, deny in part, and remand.

Because the parties are familiar with the facts and history of the case, we need not

recount them here.

1. The Board of Immigration Appeals (BIA) abused its discretion when it

failed to adequately consider Petitioners’ persecution claim. See, e.g., Agonafer v.

Sessions, No. 13-73122, 2017 WL 2698257, at *6 (9th Cir. June 23, 2017) (“While

the BIA ‘does not have to write an exegesis on every contention,’ it is required to

‘consider the issues raised, and announce its decision in terms sufficient to enable a

reviewing court to perceive that it has heard and thought and not merely reacted.’”

(quoting Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004))). Petitioners

submitted a plethora of documents with their motion, including Chinese

government documents and the 2009 and 2010 Annual Reports of the

Congressional–Executive Commission on China (CECC). The BIA neither

considered the Chinese government documents nor adequately addressed the

CECC reports. Both of these omissions warrant remand.

The BIA did not adequately consider the authenticity of the Chinese

government documents. This circuit has held that a “petitioner may resort to any

recognized procedure for authenticati[ng] documents[.]” Vatyan v. Mukasey, 508

2
F.3d 1179, 1183 (9th Cir. 2007). Here, Petitioners sought to authenticate the

Chinese government documents by: (1) attempting to comply with 8 C.F.R.

§ 1287.6; (2) pointing to document seals and letterheads; (3) providing an expert

report by Dr. Flora Sapio; and (4) explaining that some documents were obtained

from official government websites. Because the BIA did not address these efforts,

we remand so that the agency may more thoroughly examine the foreign

government documents and evaluate their authenticity.

The BIA also failed to adequately consider the information in the 2009 and

2010 CECC reports. The BIA briefly cited the reports in its decision but did not

explain why it had deemed the troubling information in the reports as insufficient

to establish a prima facie case for relief. See, e.g., Yan Rong Zhao v. Holder, 728

F.3d 1144, 1150 (9th Cir. 2013) (faulting the BIA for failing to address the 2010

CECC report). We remand so that the BIA may more thoroughly examine, inter

alia, the CECC reports and explain the rationale behind its decision.

In addition, the BIA erred by failing to follow its own precedent. The BIA’s

decision indicates that Petitioners’ evidence of coercive family planning policies in

“other areas of China” was insufficient to establish changed conditions in Fujian

Province. BIA precedent, however, makes clear that an alien may establish prima

facie eligibility for relief in a motion to reopen using evidence from the “local

province, municipality, or other locally-defined area.” In re J–H–S–, 24 I. & N.

3
Dec. 196, 197-98 (BIA 2007). Therefore, the BIA erred to the extent that it failed

to credit evidence from Fujian Province.

2. The BIA did not abuse its discretion by rejecting Petitioners’ religious

persecution claim. The BIA adequately explained its determination that conditions

for Protestants in 2012 were not materially different than in 2007. After

thoroughly reviewing the record, we conclude that the BIA did not abuse its

discretion in finding no material change in the treatment of Protestants in China.

PETITION FOR REVIEW GRANTED in part; DENIED in part; and

REMANDED.