2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-12-2012

Jian Zheng v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2681

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1

NOT PRECEDENTIAL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. 
2

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:

 

1Generally, 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).
3

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. 
4

The BIA again denied Zheng‟s motion, this time issuing a seven-page, singlespaced 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); CalleVujiles 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. 
5

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. 
6

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 
7

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 CongressionalExecutive 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
8

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 
9

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.