2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-26-2008

Chen v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 07-3199

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3122

 

JIAN ZHAU ZHENG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

 

On Petition for Review of a Decision and Order of the

Board of Immigration Appeals

(BIA No. A70-838-800)

Immigration Judge: William Strasser

 

No. 07-3199

 

ZHI YONG CHEN,
2

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

 

On Petition for Review of a Decision and Order of the

Board of Immigration Appeals

(BIA No. A77-340-635)

Immigration Judge: Donald Ferlise

 

Argued October 27, 2008

 

BEFORE: SLOVITER and GREENBERG, Circuit Judges,

and IRENAS, District Judge*

(Filed: November 26, 2008)

 

Gary J. Yerman (argued)

 

*Hon. Joseph Irenas, Senior Judge of the United States District
3

Court for the District of New Jersey, sitting by designation.

Yerman & Associates

401 Broadway

Suite 1210

New York, NY 10013-0000

 Attorneys for Petitioner in No. 07-3122

Jeffrey S. Bucholtz

Acting Assistant Attorney General

Civil Division

Michael P. Lindermann

Richard M. Evans

Ethan B. Kanter (argued)

Senior Litigation Counsel

Ben Franklin Station

Washington, DC 20044-0000

Michael P. Lindemann

Assistant Director

P.O. Box 878

Ben Franklin Station

Washington, DC 20044-0000

 Attorneys for Respondent in No. 07-3122

Gary J. Yerman (argued)

Yerman & Associates

401 Broadway

Suite 1210
4

New York, NY 10013-0000

 Attorneys for Petitioner in No. 07-3199

Jeffrey S. Bucholtz

Acting Assistant Attorney General

Civil Division

Carol Federight

Senior Litigation Counsel

Office of Immigration Litigation

M. Jocelyn Lopez-Wright

United States Department of Justice

Office of Immigration Litigation

Suite 700S

1331 Pennsylvania Avenue, N.W.

Washington, DC 20530-0000

Eric W. Marstellar (argued)

Paul F. Stone

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044-0000

 Attorneys for Respondent in No. 07-3199

 

OPINION OF THE COURT

 
Zheng filed an earlier motion to reopen that we discuss 1

below.

5

GREENBERG, Circuit Judge.

I. INTRODUCTION

These two matters come on before this Court on separate

petitions for review of decisions and orders of the Board of

Immigration Appeals (“BIA”) brought by Jian Zhau Zheng and

Zhi Yong Chen. Both petitioners are citizens of the People’s

Republic of China from Fujian Province who currently reside in

the United States, and each is married with more than one child

born in this country. In both cases the BIA rejected the

petitioner’s appeal from an immigration judge’s denial of his

application for asylum, following which each petitioner filed an

unsuccessful motion with the BIA to reopen his removal

proceedings. These petitions for review of the denial of the 1

motions for reopening followed. Significantly, each petitioner

based his motion on allegations that there had been changed

circumstances in China from those extant at the time of the

denial of his application for asylum. 

Inasmuch as the two cases concern similar questions of

law and of fact and reach this Court following almost parallel

procedural paths, we will address both petitioners’ petitions in

this consolidated opinion. For the reasons that we will discuss,

we will vacate the BIA’s denial of the petitioners’ respective

motions to reopen and remand the matters to the BIA for further

proceedings. In doing so, however, we make clear that we do
 Respondent contends that Zheng failed to appear at the 2

hearing “despite efforts to contact [him] and notify him of the

obligation to attend.” Br. at 4. We make no determination on

the question of why Zheng did not appear for the hearing, but

will assume without deciding that he did not appear because his

attorney did not advise him of the need to do so.

6

not suggest that we disagree with the results the BIA reached on

the records before it as we predicate our holding solely on

procedural deficiencies that we find existed in the BIA

proceedings.

II. BACKGROUND

A. Zheng

Zheng arrived in the United States on August 27, 1993.

He married in New York on January 23, 1998, and he and his

wife have three children, the first born on January 29, 1998, the

second born on January 4, 1999, and the third born on June 21,

2000. On August 27, 1993, Zheng, who was represented by an

attorney other than his attorney on this appeal, sought asylum.

An immigration judge conducted a hearing on his application on

March 10, 1997, but, based on Zheng’s failure to appear at the

hearing, denied his request for asylum and ordered his exclusion

in absentia. Zheng asserts that he did not appear because his

attorney did not inform him of the hearing date. Moreover, he 2

claims that he did not learn of the denial of his request for
7

asylum until September 1997, when an application for renewal

of his employment authorization was denied. Zheng appealed

from the denial of asylum, but on December 18, 1997, the BIA

denied the appeal as untimely. 

On June 27, 2002, Zheng filed a motion with the BIA to

reopen his case on the basis of his changed personal

circumstances, namely, the birth of his three children in the

United States. He claimed that “[u]nder the current recognized

climate of coercive population control” in China if he returned

to China he would be persecuted for having more than one child.

App. at 177. He did not claim, however, that there had been a

material change in circumstances in China with respect to

population control between the time that he filed his asylum

application and the time of his motion to reopen. On October 9,

2002, the BIA denied his motion to reopen and inasmuch as

Zheng did not file a petition for review of that denial, no court

of appeals has reviewed that denial and we, of course, do not

review it now.

On August 18, 2006, Zheng filed a second motion to

reopen his case, contending that he should be granted asylum

because of changed circumstances in China by reason of its

enhanced enforcement of its population control policies as

compared to those at the time that the immigration judge and

BIA denied his asylum application. Moreover, he argued that

his counsel had been ineffective during his original asylum

proceedings that an immigration judge had dismissed because of

his failure to appear for his hearing. Zheng submitted several

documents in support of his motion as evidence of those

changed circumstances and filed a personal affidavit which
8

stated:

In my recent phone contacts with my family and

friends in China, I was told that in the past year,

the government had increased the use of labor

camp, forced abortions and sterilizations. I was

also told that a couple is only allowed to have one

child. Those who resist and violate the new law

would not only be forced to undergo abortion

operations or sterilization procedures, but also

face criminal prosecution pursuant to the

Population and Family Planning Law. What I

heard is consistent with the 2005 County [sic]

Report on China by the [State Department].

Id. at 55. Zheng further stated in his affidavit:

Such persecutions have done irreparable damage[]

to many families of young couples. My neighbor

Zhou Zheng is an example. [He] and his wife

Lin, Hui ha[d] their first daughter several years

ago, . . . and [] secretly gave birth to their second

daughter. Unfortunately, the government family

planning officials found out and forced Zhou

Zheng to undergo sterilization immediately on

04/10/2006. My neighbor Zheng, Qun is another

victim. After his wife gave birth to [a boy and a

girl] . . . , on Feb[.] 28, 2006, Zheng, Qun was

forcibly sterilized by the family planning officials.

Id. at 55-56. Zheng also stated:
9

I requested my parents to inquire with the

villager’s committee in my hometown. My

parents told me that the village officials were

already aware that I had two children in the

United States. An official letter issued by the

villager committee in response to my inquiry

stated that I was still considered [] a citizen of

China and had to undergo necessary family

planning procedures with[in] one week once I

return[] to China . . . . 

Id. at 56. Zheng also submitted what purports to be a letter from

Changle City Shouzhan Town People’s Government Family

Planning Office (“Changle City letter”) dated June 9, 2006,

which states: “[a]lthough you are currently residing in the

United States, you are still a citizen of the People’s Republic of

China who had three children, and therefore you will definitely

be targeted to [sic] sterilization.” Id. at 72.

In addition to his affidavit and the Changle City letter,

Zheng submitted several documents describing what he claims

are changed circumstances in China. These documents include:

(1) two reports by the State Department entitled “China –

Country Reports on Human Rights Practices” (“Country

Report”) for 2004 and 2005 (issued in 2005 and 2006

respectively); (2) a State Department document entitled

“Consular Information Sheet – China” (“Consular Information

Sheet”) dated May 29, 2003; (3) a report entitled

“Congressional-Executive Commission on China – Annual

Report” (“Commission Report”) for 2005; (4) testimony by John

Aird to Congress concerning China’s family planning law from
10

September 23, 2002; (5) testimony by Harry Wu to Congress on

December 14, 2004; (6) a document entitled “Population and

Family Planning Regulation of Fujian Province” (“Fujian

Regulation”) dated July 26, 2002; and (7) two newspaper

articles from 2005. Inasmuch as these documents did not exist

when he filed his original petition to reopen, he could not

present any of them with that motion.

On June 21, 2007, the BIA denied Zheng’s second

motion to reopen his case, and on July 16, 2007, Zheng filed the

petition now before us to review the BIA’s June 21, 2007

decision and order.

B. Chen

Chen arrived in the United States on January 31, 2001,

and was married in Pennsylvania on May 18, 2001. Chen and

his wife have two children, the first born on June 24, 2002, and

the second born on November 22, 2003. Chen sought asylum

but on June 10, 2003, an immigration judge denied his

application for asylum and ordered his removal. Chen appealed,

but on July 19, 2004, the BIA affirmed the denial. 

On March 9, 2007, Chen filed a motion to reopen his case

based on changed circumstances in China. Chen submitted

several documents in support of his motion to reopen, including

a personal affidavit in which he stated:

[T]he birth of our children has made my return

home more risky and dangerous. In my recent

phone contacts with my famil[y] and friends in
11

China, I was told that in the past year, the

government has increased the use of forced

abortions and sterilization. Those who resist and

violate the new law would not only be forced to

undergo abortion operations or sterilization

procedures, but also face criminal prosecution

pursuant to the Population and Family Planning

Law (PFPL).

Id. at 35. He also stated in his affidavit:

My mother related to me several such tragic

incidents [that] happened in my hometown. Mr.

Gang Zheng and his wife Ms. Hua Qin have two

daughters. They wanted a son very much.

Unfortunately, on March 3, 2006, the wife Ms.

Hua Qin was forced into a sterilization to prevent

them from having more children in the future.

The same tragedy also happened to Mr. Jianping

Lin and his wife. They also have two daughters

and wanted a son. However, Mr. Lin’s wife was

forcibly sterilized in April 2006.

Id. at 36. The affidavit continued:

My parents told me that the village officials were

already aware that I had two children in the

United States. They also told me that since I do

not have legal status in the United States, I was

still considered [] a citizen of China[,] not an

overseas Chinese[;] therefore once I return[] to
12

China, I ha[ve] to undergo necessary family

planning procedures, such as abortions and

sterilizations, unless I become an U.S. citizen,

permanent resident or obtain[] Master or

Doctorate degrees in the United States.

Id.

In addition to his affidavit, Chen submitted a letter from

his mother, in which she stated:

Recently the Chinese government has

strengthened the enforcement of the Population

and Family Planning Law (PFPL). During the

past year, there were a lot of enforced abortions

and sterilizations in our hometown. The situation

is much worse than before. For example, a

resident in our village named Gamg Zheng has

two daughters. He wanted to have a son.

However, his wife, Hua Qin, was forced to

undergo an involuntary sterilization on March 3,

2006. Secondly, there is a couple in our village,

Mr. and Mrs. Jianping Chen. They have two

daughters and also wanted a son. Unfortunately,

Mr. Chen was sterilized in April, 2006. Based on

the above incidents, if my son were sent back to

Mainland China, he would also be involuntarily

sterilized and would not have more children in the

future because he has already had two sons.

Id. at 65-66.
13

In addition to the affidavit and letter, Chen submitted

other documents to demonstrate changed circumstances in China

since the time of his original application for asylum. Several

documents are the same as ones that Zheng submitted in support

of his motion, including: (1) the State Department’s 2004 and

2005 Country Reports; (2) the Consular Information Sheet dated

May 29, 2003; (3) the Congressional Executive Commission

Report for 2005; (4) Aird’s September 23, 2002 testimony to

Congress; (5) Wu’s December 14, 2004 testimony to Congress;

and (6) the same two newspaper articles from 2005. But Chen

also included documents not included with Zheng’s motion: (1)

a document by the Administrative Office of the National

Population and Family Planning Committee, dated March 14,

2006; (2) a document that Chen describes as the “Changle City

Family Planning Q & A Handbook”; and (3) the Congressional

Executive Commission Report for 2006. 

On June 29, 2007, the BIA denied Chen’s motion to

reopen his case and on July 23, 2007, Chen filed the petition

now before us to review the BIA’s decision and order.

III. JURISDICTION AND STANDARD OF REVIEW

Zheng and Chen correctly assert that the BIA had

jurisdiction under 8 C.F.R. § 1003.2(c). We have jurisdiction

over the present petitions for review pursuant to 8 U.S.C. §
 We have not overlooked respondent’s contention that the 3

proceedings on Zheng’s original motion to reopen deprive us of

jurisdiction to entertain his petition for review of the denial of

his second motion to reopen. In considering the respondent’s

jurisdictional contention we recognize that in the light of 8

C.F.R. § 1003.2(c)(1) and (2), which we discuss below, if a

petitioner did not file a petition for review from a denial of a

motion to reopen, it reasonably could be argued that the BIA

would be justified on a second motion to reopen in precluding

him from advancing evidence that was available or could have

been discovered for use at the prior proceedings but was not

presented. But even if that is true, we see no basis to hold that

if a petitioner brings a second motion to reopen his failure to

present evidence on a prior motion should deprive a court of

appeals of the jurisdiction that it otherwise would have to

entertain a petition for review from a denial of the second

motion. In this regard we point out that respondent does not

direct our attention to any statute or regulation that explicitly

deprives us of jurisdiction that we otherwise would have in this

situation, and we are aware of none, though we recognize that

Congress intended that ordinarily an alien could bring only one

motion to reopen.

In fact the respondent indicates in his brief that “[w]ith

limited exceptions, one of which is here at issue, an alien may

file only one motion to reopen and must file that motion within

ninety days of the date on which the final administrative

decision was rendered,” citing 8 C.F.R. § 1003.2(c)(2). Br. at

14

1252. We review the denial of a motion to reopen for abuse of 3
14 (emphasis added). Moreover, 8 C.F.R. § 1003.2(c)(3)

provides that the time and numerical limitations otherwise

applicable do not “apply to a motion to reopen proceedings [t]o

apply or reapply for asylum or withholding of deportation based

on changed circumstances arising in the country of nationality

or in the country to which deportation has been ordered, if such

evidence is material and was not available and could not have

been discovered or presented at the previous hearing.” 

This regulation with respect to newly available evidence

describes the situation here inasmuch as none of the eight

documents that Zheng submitted that we listed above existed on

June 27, 2002, when he filed his first motion to reopen.

Furthermore, while certain of these documents did exist on

October 9, 2002, when the BIA denied Zheng’s first motion to

reopen, it is not clear to us that even those documents could

have been presented on the earlier motion to reopen. We also

point out that the BIA’s October 9, 2002 decision and order did

not cite any of the eight documents, an understandable omission

inasmuch as all eight relate to conditions in China whereas the

BIA regarded Zheng’s motion as being “based on a change in

his personal circumstances, the birth of three children after the

Board’s adverse decision was rendered.” App. at 169.

15

discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).

We will not disturb the BIA’s decisions “unless they are found

to be arbitrary, irrational, or contrary to law.” Id. (internal

citations and quotation marks omitted).
16

IV. DISCUSSION

The general criteria governing motions to reopen set forth

in 8 C.F.R. § 1003.2(c)(1) provide that:

A motion to reopen proceedings shall state the

new facts that will be proven at a hearing to be

held if the motion is granted and shall be

supported by affidavits or other evidentiary

material. A motion to reopen proceedings for the

purpose of submitting an application for relief

must be accompanied by the appropriate

application for relief and all supporting

documentation. A motion to reopen proceedings

shall not be granted unless it appears to the Board

that evidence sought to be offered is material and

was not available and could not have been

discovered or presented at the former hearing . . .

.

Although a motion to reopen “must be filed no later than 90

days after the date on which the final administrative decision

was rendered in the proceeding sought to be reopened,” 8 C.F.R.

§ 1003.2(c)(2), the 90-day limitation does not apply if the

movant seeks reopening “based on changed circumstances

arising in the country of nationality or in the country to which

deportation has been ordered, if such evidence is material and

was not available and could not have been discovered or

presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
17

The Supreme Court has set forth three bases on which the

BIA can deny a motion to reopen: 

First, it may hold that the movant has failed to

establish a prima facie case for the relief sought .

. . . Second, it may hold that the movant has

failed to introduce previously unavailable,

material evidence that justifies reopening, as

required by regulation. Third, in ‘cases in which

the ultimate grant of relief [being sought] is

discretionary (asylum, suspension of deportation,

and adjustment of status, but not withholding of

deportation),’ the Board can ‘leap ahead . . . over

the two threshold concerns (prima facie case and

new evidence/reasonable explanation) and simply

determine that even if they were met, the movant

would not be entitled to the discretionary grant of

relief.’

Sevoian v. Ashcroft, 290 F.3d 166, 169-70 (3d Cir. 2002)

(quoting INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 912

(1988)) (internal citations omitted). But regardless of which of

these multiple bases for denying a motion to reopen that the BIA

is examining, when considering a motion to reopen the BIA

“must actually consider the evidence and argument that a party

presents.” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.

2001) (internal quotation marks omitted). If the BIA rejects the

motion to reopen, on an ensuing petition for review a court will

uphold that determination if it is “supported by reasonable,

substantial, and probative evidence on the record considered as

a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct.
18

812, 815 (1992) (internal quotation marks omitted). 

To qualify for asylum or withholding of removal, an

applicant must establish that he has a well-founded fear that he

will be persecuted if removed to his home country on account of

race, religion, nationality, membership in a particular social

group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b),

1231(b)(3). “[A] person who has a well founded fear that he or

she will be forced to [abort a pregnancy or undergo involuntary

sterilization] or [is] subject to persecution for [failure, refusal,

or resistance to undergo such a procedure] shall be deemed to

have a well founded fear of persecution on account of political

opinion.” 8 U.S.C. § 1101(a)(42)(B).

An applicant bears the burden of proving eligibility for

asylum based on specific facts and credible testimony. 8 C.F.R.

§ 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.

2001). To demonstrate that he has a well-founded fear of

persecution, an applicant must satisfy three requirements: (1) he

or she has a fear of persecution in his or her native country; (2)

there is a reasonable likelihood that he or she will be persecuted

upon return to that country; and (3) the applicant is unable or

unwilling to return to that country as a result of his or her fear.

8 C.F.R. § 208.13(b)(2)(i). The eligibility threshold for

obtaining withholding of removal is higher than that for

obtaining asylum as the Attorney General must determine that

repatriation would threaten the alien’s life or freedom on

account of one of the protected grounds to withhold removal.

8 U.S.C. § 1231(b)(3). An applicant for withholding of removal

therefore must demonstrate a “clear probability” of persecution

if he is removed. Senathirajah v. INS, 157 F.3d 210, 215 (3d
19

Cir. 1998) (internal quotation marks omitted). 

A. Zheng

1. Changed circumstances

Zheng filed his original motion to reopen on June 27,

2002, but the BIA denied that motion as untimely on October 9,

2002, and, as we indicated above, we do not review that denial.

Zheng filed his second motion to reopen, the denial of which has

led to these proceedings, on August 18, 2006. Although Zheng

argued in his second motion to reopen that there had been

changed circumstances in China from the time that he sought

asylum that warranted exception from the 90-day limitation

pursuant to 8 C.F.R. § 1003.2(c)(3)(ii), the BIA concluded that

“the pending motion does not fall within [that] time limit

exception.” App. at 3. In these proceedings Zheng primarily

argues that the BIA abused its discretion in reaching that

conclusion, and we therefore begin our analysis of his case by

reviewing that aspect of its decision.

In that decision, the BIA stated that “[w]e again find,

after considering the arguments and evidence submitted by the

applicant, that the birth of the appellant’s three children in the

United States and his marriage do not constitute a change in

circumstances arising in the country of nationality which would

create an exception to the time and numerical limitations for

filing a motion to reopen.” Id. at 3. In its decision the BIA

discussed Matter of J-W-S-, 24 I & N Dec. 185 (BIA 2007),

review denied, Shao v. Mukasey, No. 07-2689, F.3d , 2008

WL 4531571 (2d Cir. Oct. 10, 2008). In particular, the BIA
 We have rejected Aird’s position, see Yu v. Attorney 4

General, 513 F.3d 346, 348-49 (3d Cir. 2008), as has the BIA,

see In re C-C, 23 I. & N. Dec. 899, 901 (BIA 2006).

20

focused on J-W-S-’s review of three documents submitted as

evidence in that case: (1) affidavits by Aird; (2) the State 4

Department’s Country Report for 2006; and (3) a report by the

State Department entitled “China: Profile of Asylum Claims

and Country Conditions,” dated May 2007. Id. The BIA quoted

J-W-S-’s discussion of those reports, and observed that in J-WS- the BIA “concluded, based on the 2007 Profile, that children

born overseas are not counted for birth planning purposes when

the parents return to China.” Id. The BIA further quoted J-WS- in stating that “if a returnee who has had a second child while

outside of China is penalized at all upon return, the sanctions

would be fines or other economic penalties.” Id. (internal

quotation marks omitted).

In our analysis we initially note that although the birth of

Zheng’s three children after the denial of his asylum application

obviously is a significant factor in this case as the possibility

that he might suffer persecution arises from it, the BIA’s

characterization of Zheng’s motion to reopen as being based on

those births rather than changed circumstances in China is

inaccurate. Indeed, in Zheng’s brief to the BIA in support of the

motion, he argued that “[t]hese proceedings should be reopened

as the evidence in support of [the] motion was unavailable at the

time of the original hearing, and the evidence documents

conditions in China which have arisen since that date.” Id. at

12. Therefore we will discuss whether the BIA abused its
21

discretion in concluding that Zheng failed to meet his burden to

demonstrate changed circumstances in China.

In Li v. Attorney General, 488 F.3d 1371 (11th Cir.

2007), the Court of Appeals for the Eleventh Circuit reviewed

the BIA’s denial of a motion to reopen an asylum case. The

petitioner had submitted several of the documents that Zheng

and Chen have submitted in these cases. In particular, the

petitioner in Li offered as evidence the State Department’s

Country Reports for 2004 and 2005, the 2005 Commission

Report, and Aird’s testimony to Congress in 2002. Id. at 1373.

The petitioner in Li also submitted her affidavit and that of her

mother, the State Department’s Country Report for 2003, the

Consular Information Sheet for 2005, and two unidentified

newspaper articles from 2005. Id.

In reviewing the BIA’s denial of the motion to reopen the

court in Li discussed various statements contained in the

affidavits describing examples of forcible sterilization from the

petitioner’s hometown. See id. at 1375. The court observed that

the petitioner’s “other evidence corroborated her anecdotal

evidence of a change in policy in her province and substantiated

her fear that local officials in Fujian have the incentives and

discretion to sterilize women with more than one child.” Id. In

particular, the court referred to statements contained in the State

Department’s 2005 Country Report. The court concluded that

“Li’s evidence of a recent campaign of forced sterilization in her

home village, evidence consistent with the conclusion of recent

government reports, clearly satisfied the criteria for a motion to

reopen her removal proceedings.” Id. Contrary to the BIA’s

findings in Li as well as in Zheng’s case, the court stated that
 Although Zheng submitted the Consular Information Sheet 5

for 2003 rather than 2005, the 2003 version contains statements

to the same effect. See App. at 90 (“If one or both parents of a

child are PRC nationals who have not permanently settled in

another country, then China regards the child as a PRC national

and does not recognize any other citizenship the child may

acquire at birth, including U.S. citizenship.”).

22

“the [C]onsular [I]nformation [S]heet established that, for some

purposes at least, the Chinese government considers foreignborn children of Chinese nationals equivalent to children born

in China.” Id. at 1376. 5

We recognize that, as the Court of Appeals for the

Second Circuit explained in Wang v. BIA, 437 F.3d 270 (2d Cir.

2006), there is an inherent tension in the criteria setting forth the

standards for the review of BIA decisions that lack detailed

discussion:

On the one hand, the BIA abuses its discretion if

it fails completely to address evidence of changed

country circumstances offered by a petitioner. . .

. The BIA should demonstrate that it has

considered such evidence, even if only to dismiss

it. In so doing, the BIA should provide us with

more than cursory, summary or conclusory

statements, so that we are able to discern its

reasons for declining to afford relief to a

petitioner.
23

On the other hand, we do not hold . . . that where

the BIA has given reasoned consideration to the

petition, and made adequate findings, it must

expressly parse or refute on the record each

individual argument or piece of evidence offered

by the petitioner. . . . While the BIA must

consider such evidence, it may do so in summary

fashion without a reviewing court presuming that

it has abused its discretion.

Id. at 275 (internal citations and quotation marks omitted).

Notwithstanding this tension “[immigration judges] and the BIA

have a duty to explicitly consider any country conditions

evidence submitted by an applicant that materially bears on his

claim,” and “[a] similar, if not greater, duty arises in the context

of motions to reopen based on changed country conditions.”

Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006) (internal

quotation marks omitted); see also Yang v. Gonzales, 427 F.3d

1117, 1122 (8th Cir. 2005) (“If an agency makes a finding of

fact without mentioning or analyzing significant evidence, its

decision should be reconsidered.”) (internal quotation marks

omitted).

In Zheng’s case the BIA did little more than quote

passages from its earlier decision in J-W-S- without identifying

– let alone discussing – the various statements contained in the

record before it that Zheng submitted in support of his motion

to reopen. Indeed, the BIA did not mention Zheng’s affidavit,

the Changle City letter, the Consular Information Sheet from

2003, the Commission Report for 2005, the Fujian Regulation

from 2002, Wu’s testimony to Congress from 2004, or the two
 We note that the court in Wang affirmed the BIA’s denial of 6

the petitioner’s motion to reopen the case, even though the

BIA’s decision was not more detailed than the analysis of the

BIA in Zheng’s case. See 437 F.3d at 275. Zheng, however,

submitted documents that were not submitted in Wang, as well

as a personal affidavit, and, that given the more extensive record

in this case, we find the BIA’s cursory discussion of the record

to be an abuse of discretion.

We also note that after the parties filed their briefs on this

petition the Court of Appeals for the Seventh Circuit decided

Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008), a case that Zheng

has brought to our attention in a letter pursuant to Fed. R. App.

P. 28(j). Lin discussed the 2006 Country Report for China

issued in 2007. That report, however, is not part of the record

in Zheng’s case. Undoubtedly Lin could be helpful to Zheng

and he might bring that case to the BIA’s attention on the

remand and seek to supplement the record on the remand to

include the 2006 Country Report. On the other hand, we are

aware that the BIA discussed J-W-S- in its decision on Zheng’s

24

newspaper articles. Moreover, these documents were not

discussed in J-W-S-, the case on which the BIA almost

exclusively relied. See J-W-S-, 24 I & N Dec. at 189-94. Given

the BIA’s failure to discuss most of the evidentiary record in

Zheng’s case, as well as the conclusions that the Court of

Appeals for the Eleventh Circuit reached in Li concerning at

least some of the documents in this case, we will vacate the

BIA’s denial of Zheng’s second motion to reopen his case and

remand the matter to the BIA for further proceedings.6
motion and the 2006 Country Report was in evidence in J-W-S-,

so that it is possible that the BIA will give the 2006 Country

Report little weight.

25

2. Equitable tolling

Zheng contends that the time limitations on filing a

second motion to reopen should be equitably tolled in his case

because his attorney did not inform him of the hearing date on

his asylum application and it was that failure that led to the

dismissal of the application on March 10, 1997. Furthermore,

the appeal that the same attorney filed from the denial of the

application to the BIA was untimely, a shortcoming that led the

BIA to deny the appeal on December 18, 1997. It might be

thought that inasmuch as we are remanding this case to the BIA

without regard for tolling of the limitations period that Zheng’s

equitable tolling contention is moot. We are satisfied, however,

that the tolling question is not moot because if Zheng prevails on

the tolling point he ultimately might obtain a reopening and be

granted asylum without showing changed circumstances in

China in accordance with 8 C.F.R. § 1003.2(c)(1), (3)(ii).

Therefore we consider the equitable tolling argument on the

merits. 

The BIA rejected the equitable tolling contention because

it held that Zheng’s lack of diligence in pursuing his asylum

claim demonstrated that tolling was not justified. See Mahmood

v. Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005). We agree

with the BIA. In this regard we point out that Zheng

acknowledges that he found out in September 1997 that his
26

attorney had not advised him of the hearing date on his asylum

application and also discovered at that time that his failure to

appear at the hearing led the immigration judge to deny his

application for asylum. Then the BIA denied his appeal from

the dismissal of his asylum claim because it was untimely on

December 18, 1997. Yet Zheng did not file his original motion

to reopen until June 17, 2002, a delay that demonstrates that he

was not diligent in pursuing his asylum claim. His lack of

diligence cannot be gainsaid because he had known for over

four years when he first sought to reopen the proceedings that

his asylum application had been denied by reason of his failure

to appear for his hearing. 

Furthermore, when he filed his first motion to reopen he

did not assert that his attorney at the time of the asylum

application had been ineffective, even though he was being

represented by an attorney who had not represented him when

he filed his unsuccessful asylum application. Rather, he based

his motion solely on his claim that “there ha[d] been a

significant change in circumstances” predicated on the birth of

his three children after the immigration judge denied his asylum

application on March 10, 1997. App. at 177. Moreover, his

attorney on his first motion to reopen, on information and belief

asserted, contrary to what actually had happened, that Zheng had

appeared at the hearing on March 10, 1997, and that his appeal

to the BIA was timely. The totality of the circumstances makes

it clear that Zheng was not diligent in pursuing his asylum

application and we accordingly reject his equitable tolling

contention. We do not understand how we could come to any

other result, for the history of his case demonstrates that the type

of exceptional circumstances justifying equitable tolling are not
27

present here. See Hedges v. United States, 404 F.3d 744, 751

(3d Cir. 2005).

B. Chen

The BIA also denied Chen’s motion to reopen his case.

Although the BIA began by characterizing Chen’s claim as one

based on changed personal circumstances rather than changed

circumstances in China, it nevertheless discussed the latter

question. According to the BIA:

[T]he evidence reflects conditions substantially

similar to those that existed at the time of his

hearing, with the government officially

prohibiting the use of force to compel persons to

submit to abortion or sterilization, despite some

reports of coercion by local authorities, and

generally attempting to enforce compliance with

the one-child policy through the use of economic

incentives and sanctions and other administrative

measures. The recent evidence submitted

generally confirms a continuation of problems

that previously existed.

Like our recent decision in [J-W-S-], [Chen] has

not provided sufficient evidence that any

sanctions [he] may experience if he returns to

China would rise to the level of persecution. The

mere existence of a policy under the local

regulations of sterilization if a couple has two

children does not demonstrate that such policy
 In the relevant part of the BIA’s decision, it discussed J-W- 7

S- and Matter of C-C-, 23 I & N Dec. 899 (2006). App. at 3.

We note that in a situation like the present one, where the

evidentiary record contains documents that were not at issue in

28

would be enforced in Fujian Province by physical

coercion, and there is no current evidence that

couples returning with two United States citizen

children would be sterilized. The policies existed

at the time of [Chen’s] hearing, and reports of

some recent instances of coercion are no different

from such reports at the time of the hearing

below. [Chen’s] reliance on 2006 statements

from the National Population and Family

Planning Committee and the Fujian [P]rovince do

not show that Fujian Province will forcibly

sterilize [Chen] in violation of official policy if he

is returned to China. Thus, we do not find that the

evidence presented by [Chen] reflects a material

‘change’ such that the time limitation does not

apply to the present motion.

App. at 3 (internal citations omitted).

The above passage represents the BIA’s entire discussion

of the question whether Chen satisfied his burden to

demonstrate changed circumstances in China. As in Zheng’s

case, the BIA failed to refer to most of the documents that Chen

submitted in support of his motion, whether explicitly or by

citation to an earlier decision, including his affidavit, the letter 7
an earlier decision, mere reference to that earlier decision is

insufficient to warrant adopting its conclusions. Rather, the BIA

must assess any evidence that bears on the questions of fact

which it must decide. See Yang, 427 F.3d at 1122 (“If an

agency makes a finding of fact without mentioning or analyzing

significant evidence, its decision should be reconsidered.”)

(internal quotation marks omitted).

29

from his mother, the Consular Information Sheet from 2003, the

Commission Report for 2005, Wu’s testimony to Congress from

2004, the Fujian Regulation dated July 26, 2002, and the two

newspaper articles from 2005. 

In fact, the BIA’s discussion in Chen’s case amounts to

a series of conclusory statements, and fails to offer even a

cursory review of the record. For example, the BIA stated that

“[Chen] has not provided sufficient evidence that any sanctions

[he] may experience if he returns to China would rise to the

level of persecution.” Id. Even though the BIA may have been

correct in its summary conclusion, there is no escape from the

reality that it did not explain why the evidence that Chen

submitted was not sufficient. 

Moreover, although the BIA concluded that “[t]he mere

existence of a policy under the local regulations of sterilization

if a couple has two children does not demonstrate that such

policy would be enforced in Fujian Province by physical

coercion,” and that “there is no current evidence that couples

returning with two United States citizen children would be

sterilized,” id., the BIA did not discuss Chen’s affidavit (which
 Respondent has filed a letter pursuant to Fed. R. App. P. 8

28(j) in Chen’s case in which he cites Shao v. Mukasey, No. 07-

2689, F.3d , 2008 WL 4531577 (2d Cir. Oct. 10, 2008),

upholding the BIA’s conclusion in that case that the petitioner

had not provided sufficient evidence that any harm the petitioner

would face if he returned to China would rise to the level of

persecution. Respondent regards Shao as being based on

evidence identical or substantially similar to the evidence Chen

submitted. Certainly, on the remand respondent may bring this

case to the BIA’s attention, and the BIA in its discussion of the

evidence in Chen’s case is free to consider Shao, but

respondent’s citation of that case does not overcome the

deficiency in the BIA’s decision in this case. By the same token

Chen may bring Lin v. Mukasey and the 2006 Country Report

that we discuss above to the BIA’s attention on the remand.

Respondent in the same letter indicates that “[s]everal

30

described instances of forced sterilization), the State

Department’s 2005 Country Report (which the court in Li

concluded was “consistent” with claims of forced sterilization),

or the Consular Information Sheet from 2003 (which contained

statements showing that, for some purposes at least, the Chinese

government considers foreign-born children of Chinese

nationals equivalent to children born in China). Given the

BIA’s failure to discuss most of the evidentiary record in Chen’s

case, and for reasons parallel to those we discussed in analyzing

Zheng’s case, we will vacate the BIA’s denial of Chen’s motion

to reopen the case and remand to the BIA for further

proceedings.8
circuit courts of appeals have recently deferred to the [BIA’s],

reasonable determination . . . that an alien may file a successive

asylum application after being ordered removed only if he does

so through the filing of a motion to reopen in which he

establishes a material change in conditions in the county of

removal.” We agree with this unremarkable statement, which

merely restates the requirements of 8 C.F.R. § 1003.2(c)(3)(ii),

and, as we make clear, the BIA might conclude on the remand

that petitioners did not satisfy this standard.

31

V. CONCLUSION

We think it is important to point out that both Zheng and

Chen are from Fujian Province and thus quite naturally their

cases focus on conditions in that province. We understand that

conditions with respect to limitations on the birth of children are

not uniform in China and thus the facts in this case may not be

representative of the situation throughout that country. We also

reiterate that in reaching our conclusion that we will remand

these cases to the BIA, we do so exclusively by reason of

procedural shortcomings that we find existed in the BIA

proceedings, and thus we do not imply that the BIA reached an

incorrect result predicated on the records before it in either case.

In short, the abuse of discretion relates to how the BIA reached

its result and not the result itself. Indeed, we are well aware that

respondent contends that the documents the petitioners

presented should not lead to the reopening of their proceedings.

Certainly, if the BIA agrees with this contention it is free to say

so on the remands as we do not reject respondent’s contentions

on this point. In view of our conclusions we will vacate the
32

order of July 16, 2007, in Zheng’s case and the order of June 29,

2007, in Chen’s case and will remand the cases to the BIA for

further proceedings consistent with this opinion. In particular,

the BIA should reconsider the appeal in both petitioners’ cases

and make a more complete analysis of the evidence they have

submitted.