2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-7-2010

Na Zhao v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4396

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4396

___________

NA ZHAO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A079-433-717)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 7, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed: July 7, 2010)

___________

OPINION

___________

PER CURIAM

Na Zhao, a citizen of China, petitions for review of a Board of Immigration

Appeals (“BIA”) order denying her motion to reopen. For the reasons that follow, we

will deny the petition for review.
2

I

Zhao entered the United States in 2002 and sought asylum and related relief. She

alleged that she faced persecution in China for her membership in an unregistered

Christian church. In support of her request for relief, she alleged that she was beaten by

police for her religious practices and that she narrowly escaped arrest during a police raid

on an underground church meeting at which several church-goers were taken into

custody. In June 2002, the Immigration Judge (“IJ”) denied relief, and the BIA dismissed

her subsequent appeal.

In November 2008, Zhao filed with the BIA a motion to reopen. The BIA denied

the motion as untimely, holding that Zhao failed to demonstrate that changed conditions

in China met the standard for exempting her from the time limitations applicable to

motions to reopen. Zhao filed a petition for review. We granted her unopposed motion to

remand the proceedings so the BIA could consider additional evidence of changed

circumstances. See Na Zhao v. Att’y Gen., C.A. No 09-1001 (order entered July 21,

2009).

On remand, the BIA considered the Department of State’s International Religious

Freedom Report for China for 2007 and 2008, the Country Reports on Human Rights

Practices for 2007, the 2007 Annual Report from the Congressional-Executive

Commission on China, and three articles describing police raids on unregistered churches. 

Zhao also submitted a letter from her sister, who lives in China, in which her sister
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alleged that she was arrested and detained for seven days for participating in an

underground church. The BIA concluded that Zhao failed to demonstrate a change in

country conditions that would materially affect her eligibility for asylum. Zhao then filed

a petition for review.

II

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA’s denial

of a motion to reopen for abuse of discretion. See Fadiga v. Att’y Gen., 488 F.3d 142,

153 (3d Cir. 2007). Under that standard, we will not reverse the Board’s decision unless

“it is arbitrary, irrational, or contrary to law.” Id. (quoting Sevoian v. Ashcroft, 290 F.3d

166, 175 (3d Cir. 2002)).

A “motion to reopen shall be filed within 90 days of the date of entry of a final

administrative order of removal.” INA § 240(c)(7)(C)(i) [8 U.S.C. § 1229a(c)(7)(C)(i)]. 

However, the 90-day time limitation does not apply to a motion to reopen if that motion is

based on “changed country conditions arising in the country of nationality . . . if such

evidence is material and was not available and would not have been discovered or

presented at the previous proceeding.” § 240(c)(7)(C)(ii). Although a motion to reopen

need rest only on prima facie eligibility for asylum, this requires “the applicant to produce

objective evidence showing a ‘reasonable likelihood’ that he can establish [that he is

entitled to relief].” Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004) (quoting Sevoian,

290 F.3d at 175). Moreover, cumulative evidence demonstrating that conditions asserted
4

in an alien’s original asylum application persist is not evidence of changed circumstances

for purposes of § 240(c)(7)(C)(ii). See Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir.

2005). 

In denying Zhao’s motion to reopen, the BIA reasoned that the evidence submitted

on remand showed that there was no material change in China’s stance toward

unregistered Christian churches. Rather, the Board concluded, the country reports and

other documentation demonstrated that the conditions Zhao complained of in her asylum

application persisted. Zhao challenges the BIA’s analysis on several grounds, only two of

which merit discussion.

First, Zhao argues that the BIA committed a procedural error because it did not

expressly consider portions of the Congressional-Executive Report and the International

Religious Freedom Report that note an increase in the persecution of unregistered

churches, particularly leading up to the 2008 Olympic Games in Beijing. Although the

BIA did not specifically mention these portions of the reports, we do not think the Board

abused its discretion. The BIA must consider the evidence presented to it, but it need not

expressly parse each piece of evidence submitted in its opinion. See Zheng v. Att’y Gen.,

549 F.3d 260, 268 (3d Cir. 2008) (citing Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)). 

Here, the BIA expressly identified the evidence Zhao presented, and cited several of the

country reports to support its conclusion that no fundamental change in conditions

occurred in China.
5

Next, Zhao contends that the BIA erred in concluding that she failed to

demonstrate changed conditions in Fujian Province. Zhao relies on “personal evidence”

she submitted – specifically, a statement in her affidavit that several house church

attendees were arrested and abused in 2008, the letter from her sister regarding the sister’s

arrest, and letters from an acquaintance and an unregistered church in her hometown

stating that the government has recently increased its suppression of underground

churches. However, the fact that members of unregistered churches have been detained

does not demonstrate changed circumstances: Zhao cited her narrow escape from a

similar raid in support of her original asylum application. Although the letters from her

acquaintance and church support an argument that problems have increased, they do not

hold any greater weight than the country reports, which state that conditions in China

remain poor, but exclude Fujian Province from the list of significantly affected areas. 

Thus, she has not shown that the BIA’s decision was “arbitrary, irrational, or contrary to

law.”

Because we agree with the BIA that Zhao failed to demonstrate changed

circumstances to warrant reopening her proceedings, we need not consider her other

arguments regarding the BIA’s analysis. Accordingly, we will deny the petition for

review.