NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0248n.06 No. 12-3444 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT TI ANSHENG Z OU, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM THE U

NI TED STATES BO ARD OF I MMI GRATI ON APPEAL S

BEF ORE: BOG GS, GI BB ONS, and COOK, Circ uit J udg es.

PER CURI AM. Tiansheng Z ou petition s this court for revie w of an order of the Board of I mmigration Appea ls (B I A) deny ing his motion to reope n his remova l p ro ce ed ings. We deny the petition. Z ou, a native and citizen of China, enter ed the United States without inspection in 1995. Z ou marrie d his United States citizen wife in 2002; they have three children, all born in the United States. I n 2007, Z ou filed an application for asy lum , wi t h h olding of remova l, and protec tion under the Convention Ag ainst Torture (CAT), asser ting that, if he returne d to China, he would be forc ed to underg o sterilization beca use of his violation of China’s family -planning policy , which allows eac h couple to have no more than one child. The Depa rtment of Homeland Security subsequently serve d Z ou with a notice to appea r, char g ing him with remova bility under Sec tion 212(a)( 6)(A) (i) of the I mmigra tion and NationalityNo. 12-3444

Zou v. Holder Act, 8 U.S.C. § 1182(a) (6)( A)(i) , as an alien prese nt in the United States without being admitted or parole d. Z ou appea

red befor e an immigra tion judge (I J ), admitted the fac tual alleg ations contained in the notice to appea

r, and conce ded remova

bility as char g ed. In addition to his asy lum application, Z ou filed an ap p l i ca t ion for canc ellation of remova l, asser ting that his remova l would result in exceptional and extremely unusual hardship to his United States citizen wife and c hildren. At the merits hear ing on Aug ust 19, 2010, Z ou’s wife testified that she and their children would not return to China with Z ou. Following the hear ing, the I J issued a writt en d ec ision denying Z ou’s applications for

relief and orde ring his removal to China. Z ou appea led only

the I J ’s denial of

his application for canc ellation of remova l. The B I A 1 dismiss ed the appea l, c oncluding that Z ou failed to e stablish that his w ife and children would fac e exceptional and extremely unusual hard s h i p . Z ou filed a petition for revie w with this court, but voluntarily

dismiss ed the pe tition. Z ou fil ed a timely motion to reope n his remova l proce eding s for consideration of his application for asy lum, withholding of remova l, and pro t ec t i o n u nder the CAT. Z ou, who now

asser ted that his wife and three children would return to China with him, based his motion on “new and pre viously unavailable ” evidenc e re g arding China’s enha nced e nforc ement of the populationcontrol policy and an officia l policy chang e reg arding the trea tment of couples who return to China with children born abroa d. Z ou submitt ed sever al hundred pag es of d o cu m en t s i n support of his motion. I n denying Z ou’s motion, the BIA pointed out that most of the submitt ed documents wer e

The BIA noted that Z ou did not “mea ningf ully dispute” the I J ’s deter mination on his other 1 g rounds for r elief a

nd thus deemed the m waived. Z ou did not challeng e that dete rmination. -2-No. 12-3444

Zou v. Holder neither new nor previously unavailable , sever al d o cu m ents wer e incomplete, the documents from China wer e not au t h en t i ca t ed pursuant to 8 C.F.R. § 1287.6, and the documents from towns and cities other than Z ou’s hometown wer e inapplicable. The BIA co n cl u ded that the evidenc e submitt ed by Z ou failed to establish that he would suffe r mistreatment amounting to perse cution or torture in China base d on the birth of his children in the U nited States. This timely petition for revie w followed. We revie w the BIA’s denial of a motion to reope n for abuse of discretion. A cq u aah v. Holder , 589 F.3d 332, 334 (6th Cir. 2009). Be cause the BI A has broad discretion to g rant or deny a motion to reope n, a party who seeks reope ning “bea rs a heavy burden.” Alizoti v. Gonzales , 477 F.3d 448, 451 (6th Cir. 2007) (interna l quotation marks omitted). The BIA may not g rant a motion to re o p en unless the “evide nce soug ht to be offe red is materia l and was not available and could not have been d i s co v er ed or prese nted at the former hear in g. ” 8 C

. F. R. § 1003.2(c) (1). As the BIA corr ectly pointed out, most of the documents submitt ed by Z ou in suppor t of his motion to reope n wer e neither new nor previously unavailable ; the vast majority

of the doc uments pre- date the Aug ust 2010 hearing

. Z ou argues that a psy cholog ist’s repor t and his wife’ s statement buttressing that repor t constituted new and previously unavailable evidenc e of his individualiz ed fea r of harm that the BI A reje cted without a rational explanation. The BI A identified those documents and did not specific ally reje ct them in denying Z ou’s motion. “While the BIA should demonstrate that it has considere d the evidence t h at a petitioner prese nts, the BIA is not require d to parse or ref ute on the rec ord ever

y individual argument or document offe red by the petitioner.” Stserba v. Holder , 646 F.3d 964, 978 (6th Cir. 2011) (interna l quotation marks omitted).

-3-No. 12-3444

Zou v. Holder Acc ording to Z ou, the BI A abused its discretion in reje cting documents fr om China as not

au t h en t i c. The BIA mere ly observe d that those documents wer e not authenticated pursuant t o 8 C.F.R. § 1287.6 and noted that Z ou submitt ed evidenc e of his a ttorney ’s attempts to have some of them authenticated. There is no indication that the BIA exclude d t h o s e documents from its consideration for lack of

authentica

tion. Z ou also contends that the BIA abused its discretion in reje cting documents from towns and cities other than his hometown, Ying Qian Town, Chang le City

. Given that implementation of the family -plan n i n g p o l icy varie s from one are a of China to another , see Congr essional-Executive Commi ssion on China 2010 Annual Report at 6 (A.R. 149); Shao v. Mukase y , 546 F.3d 138, 170 (2d Cir. 2008), t he B I A did not abuse its discretion in deter mining that Z ou failed to e stablish that the documents and regulations from other towns and cities wer e applicable to him. Z ou argues that the BIA ignor ed rele vant evidenc e from his hometown, but there is no indication that the BI A disreg arde d such evide nce. See Stse rba , 646 F.3d at 978. “[A] motion to re o p en s h o uld not be g rante d unless the petitioner makes a prima fac ie showing that the statutory require ments for the underly ing relief have been met.” Y ousif v. INS , 794 F.2d 236, 241 ( 6th Cir. 1986). Z ou contends that the B I A applied the w rong standard, r equiring a conclusive rathe r than prima fac ie showing

. The BIA conclude d that the evidenc e was “inade quate to demonstrate a realistic chanc e that [Zou] can establish his eli gi b i l i t y for relief from remova l or protec tion under the Convention Ag ainst Torture b as ed on the family planning policy in China.” Other circ uits have define d a prima fac i e case in the context of a motion to reope n as “a rea listi c chanc e that the petitioner can at a later time establish that asy lum should be g rante d.” Jian Lian Guo

-4-No. 12-3444

Zou v. Holder

v. Ashcroft , 3 8 6 F. 3 d 5 5 6 , 5 64 (3d Cir. 2004); see Smith v. Holder , 627 F.3d 427, 437 (1st Cir. 2010); Poradisova v. Gonzales , 420 F.3d 70, 78 (2d Cir. 2005). The BIA did not apply a heig htened standard. The BIA did not abuse its discretion in concluding that Z ou failed to demonstrate a rea listi c chanc e of establishing elig ibilit y for the relief soug ht. Z ou failed to submit any new and previously unavailable evidenc e addre ssing the specific i s sue of whether pare nts who return to China with ch i ldren born abroa d are require d to underg o sterilization. The 2007 State Depa rtment C o u n t ry Profile for China state s: Some asy lum seeke rs also claim the exis tence of an officia l Chinese g overnme nt policy mandating sterilization of one partne r if a couple has g iven birth to two children, at least one of whom was born abroa d, if t h e ch i l d or children return to China. U.S. officia ls in China are not awa re of the alleg ed officia l p o licy , at the national or provincial levels, mandating the sterilization of one partne r of couples that have g iven birth to two children, at least one of w hom was born a broad. (A.R. 261)

. See also Huang v. Mu ka s ey , 523 F.3d 640, 653 (6th Cir. 2008) (“The finding that children born outside of China are not counted for purposes of China’s pop u l at i o n-control policy continues to be acc ept ed b y t h e BI A, as well as by other courts of appea ls.”). We have acknow ledg ed that State Depa rtment re p orts “ar e g ener ally the best source of information on

co n ditions in fore ign nations.” Mullai v. Ashcroft , 385 F.3d 635, 639 (6th Cir. 2004) (i n t er n al quotation marks omitted). I n support of his motion to r eopen, Z ou submitt ed a repor t by Dr. Flora Sapio of the Centre of Advanc ed Studies on Contemporary C h i n a cr i t icizing the 2007 Country Profile. As the B I A noted, Dr . Sapio conce ded in her repor t: “There is no univocal consensus on whether forc ed abortions and sterilizations are still used to implement the family planning policy

. Widely differ ent opinion s exis t. All of them rest on the available evidenc e, which is neither

-5-No. 12-3444

Zou v. Holder conclusive nor

compre hensive.” (A.R. 198). Dr . Sapio’s repor t does not provide any

evidenc e of the forc ible sterilization of pare nts who return to China with children born abroa d, mere ly discussing whether such children are counted ag ainst the number of children allowed under the family -planning policy

. See Lin v. Holder , 485 F. App’x 68, 70 (6th Cir. 2012) (stating that Dr. Sapio’s repor t “fa iled
to set forth evidenc e demonstrating that individuals [who have children born abroa d] had been perse cuted i n C h i n a or that there was a rea sonable likelihood that L in would be subjected to perse cution”). Z ou also failed to prese nt any evidenc e that economic sanctions for violati n g t h e family -planning policy would amount to perse cution in his case . See Pan v. Holder , 381 F. App’x 572, 576 (6th Cir. 2010). Be cause the BIA did not abuse its discretion in denying Z ou’s motion to reope n, we deny the petition for re view.

-6-