2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-6-2009

Zhi Zhao v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1392

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"Zhi Zhao v. Atty Gen USA" (2009). 2009 Decisions. Paper 291.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1392

___________

ZHI ZHAO,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A078-015-958)

Immigration Judge: Honorable Donald Ferlise

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 14, 2009

Before: RENDELL, FUENTES AND ALDISERT, Circuit Judges

(Opinion filed November 6, 2009)

_________

OPINION

_________

PER CURIAM

Zhi Zhao petitions for review of a order of the Board of Immigration Appeals

(BIA). For the reasons below, we will grant the petition for review and remand the matter

to the BIA.
 The government contends that even if the BIA abused its discretion in denying the 1

motion to reopen, remand would be futile because the IJ found that Zhao had filed a

frivolous application and this finding rendered her permanently ineligible for benefits. 8

U.S.C. § 1158(d)(6). However, the BIA did not rely on the frivolousness finding in

denying Zhao’s motion to reopen. Dia v. Ashcroft, 353 F.3d 228, 256 n.25 (3d Cir. 2003)

(noting that under the doctrine of SEC v. Chenery Corp., 318 U.S. 80, 95 (1947), an

administrative order can be upheld only on the grounds relied on by the agency). 

2

In August 2002, Zhao was charged with removability as an arriving alien without

entry documents. She conceded removability and applied for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). The Immigration

Judge (IJ) made an adverse credibility finding and denied relief. He also found that Zhao

had filed a frivolous application. In March 2006, the BIA affirmed the IJ’s decision 1

without an opinion. Zhao did not petition for review of the BIA’s order.

In October 2008, Zhao filed a motion to reopen alleging changed country

conditions in China. She argued that she would be sterilized if removed to China because

she had given birth to a child in the United States and was pregnant with a second child. 

The BIA determined that Zhao had not shown changed country conditions and denied the

motion to reopen as untimely. Zhao filed a timely petition for review.

We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a

motion to reopen for abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.

2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary,

irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). 

An alien generally may file only one motion to reopen, and must file the motion with the
3

BIA “no later than 90 days after the date on which the final administrative decision was

rendered.” 8 C.F.R. § 1003.2(c)(2). There is an exception to the time and number

requirements for motions that rely on evidence of changed circumstances arising in the

country of nationality. 8 C.F.R. § 1003.2(c)(3).

Zhao argues that the BIA failed to consider all of the evidence she submitted. We

agree. In Zheng v. Att’y Gen., 549 F.3d 260 (3d Cir. 2008), the petitioners sought to

reopen their removal proceedings on the same grounds as Zhao. We vacated the BIA’s

denials of the motions to reopen because the BIA failed to discuss the evidence submitted

by the petitioners or explain why it was not sufficient. Id. at 268-69, 271. Here, the BIA

listed the evidence submitted by Zhao and noted that the identity documents did not

contain authenticating information. After stating that the birth of Zhao’s first child and

her pregnancy were changes in her personal circumstances, the BIA simply concluded:

“[t]he evidence, including the evidence of conditions in China, is insufficient to establish

a change in circumstances or country conditions ‘arising in the country of nationality’ so

as to create an exception to the time and number limitation for filing a late motion to

reopen to apply for asylum.” C.A.R. at 3. While the BIA noted that under Zheng it must

adequately consider the evidence submitted, it failed to do so.

The BIA also cited to In re S-Y-G-, 24 I&N Dec. 247 (BIA 2007), and Matter of

C-C-, 23 I&N Dec. 899 (BIA 2006). In S-Y-G-, the alien submitted a 2003 Changle City

Administrative Opinion and a 2003 Fujian Province Administrative Opinion responding
4

to an inquiry as to the application of the family planning guidelines to an unrelated alien,

Zheng Yu He. The record also included the Changle City Q&A Handbook. The BIA

determined that the petitioner had not shown changed country conditions and denied the

motion to reopen. In Matter of C-C-, the BIA found that the 2004 and 2005 State

Department Country reports were more persuasive than an affidavit from a retired

demographer, Dr. John Aird, in determining that an alien with U.S.-born children had not

shown a prima facie showing that she might suffer sterilization if returned to China. 

We observed in Zheng that “where the evidentiary record contains documents that

were not at issue in an earlier decision, mere reference to that earlier decision is

insufficient to warrant adopting its conclusions.” Zheng, 549 F.3d at 271 n.7. Here, Zhao

submitted documents that were not at issue in S-Y-G- or Matter of C-C-. She submitted,

inter alia, Shangyang Village family planning regulations, letters from family members

and friends who were forcibly aborted or sterilized in China, the 2007 Country Report on

Human Rights Practices, congressional testimony, and notices from town and village birth

control offices directed to her. The BIA did not explain how this evidence was

insufficient to support reopening.

In its brief, the government relies heavily on the BIA’s decision in Matter of J-WS-, 24 I&N Dec. 185 (BIA 2007), for the proposition that children born overseas are not

counted by the Chinese government for family planning purposes. However, in Zhao’s

case, the BIA did not cite to J-W-S- even though it was available at the time of the BIA’s
5

decision. 

The government also relies on the prior adverse credibility finding. While the BIA

noted that the prior adverse credibility determination should be considered, it did not

explicitly reject any specific evidence based on the adverse credibility finding. The

government also argues that the notices Zhao allegedly received which demand that she

report for IUD insertion and sterilization were unauthenticated. However, while the BIA

pointed out that the identity documents and birth certificates were unauthenticated, it

made no similar observation with respect to the notices Zhao received; it stated only that

she submitted the notices.

Because the BIA failed to adequately explain its reasoning for rejecting Zhao’s

evidence and denying her motion to reopen, we will grant the petition for review, vacate

the BIA’s order, and remand the matter to the BIA for it to reconsider the motion and

provide a more complete analysis of the evidence submitted. See Zheng, 549 F.3d at 272.

The government’s motion to dismiss is denied.