PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-2207

_____________

FEI YAN ZHU,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent 

____________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A077-023-608)

Immigration Judge: Honorable Henry S. Dogin

____________

Argued January 7, 2014

Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.

(Opinion Filed: March 4, 2014)

Theodore N. Cox, Esq. [ARGUED]

325 Broadway
2

Suite 201

New York, NY 10007

Counsel for Petitioner

Eric H. Holder, Jr., Esq.

Stuart F. Delery, Esq.

Thomas W. Hussey, Esq.

Blair O’Connor, Esq.

Glen T. Jaeger, Esq.

Rachel L. Browning, Esq. [ARGUED]

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

________________

OPINION

________________

SHWARTZ, Circuit Judge.

Fei Yan Zhu, a native and citizen of the People’s 

Republic of China, petitions for review of an order of the 

Board of Immigration Appeals (“BIA”) denying her motion 

to reopen her removal proceedings pursuant to 8 C.F.R. § 

1003.2. Because the BIA’s opinion did not reflect 

meaningful consideration of much of the evidence that Zhu 

submitted in support of her motion, we will grant the petition 
3

for review, vacate the order denying the motion to reopen,

and remand to the BIA for further proceedings.

1

 

I.

Zhu is from Changmen Village, Guantou Town, 

Lianjiang County, Fujian Province, China. She entered the 

United States in 1999 without proper documentation. During 

her interview with the Immigration and Naturalization 

Service (“INS”), she stated that she feared persecution 

because of her opposition to China’s population control 

policies. The INS determined that she met the credible fear 

standard, and she was paroled into the United States for a 

hearing before an immigration judge (“IJ”) to determine her 

eligibility for asylum. 

On February 15, 2000, Zhu appeared before the IJ, 

conceded her removability, and filed an application for 

asylum, withholding of removal, and protection under the 

Convention Against Torture (“CAT”), based on a claim that 

she had been and/or would be persecuted for having resisted

population control measures. At the hearing, Zhu testified 

that she had a heated exchange with birth control officials and 

that they tried to force her to wear an intrauterine device 

 1 We note at the outset that the record in the instant 

case is very similar to that considered by the Court of Appeals 

for the Seventh Circuit in Ni v. Holder, 715 F.3d 620 (7th Cir. 

2013), and the BIA appears to have used almost identical 

language in its decisions in both cases. The Seventh Circuit 

found “the BIA failed meaningfully to address documents 

bolstering [the] assertion that conditions in China have 

changed for the worse.” Id. at 622.
4

when they learned she and her boyfriend were living together. 

The IJ found Zhu’s testimony lacked credibility, denied her 

application, and ordered her removed to China. The BIA 

affirmed the IJ’s decision without an opinion. 

In 2002, Zhu filed a timely motion to reopen, alleging 

that since the time of the IJ’s decision she had married and 

given birth to a son, and that she would be forcibly sterilized 

if she returned to China. The BIA denied the motion, noting 

that Zhu only had one child, which was not in violation of 

Chinese population control policies, and that she had not 

shown that “a Chinese national becomes automatically 

subject to punitive birth control measures if she has returned 

with a child or children born outside China.” Appendix 

(“App.”)2 1213. 

In 2008, Zhu filed a second motion to reopen, alleging 

that she had given birth to two more children and that 

conditions had changed in China because the Chinese 

government now counted children born overseas when 

considering violations of its population control policies. She 

submitted, among other things, a notice from the Family 

Planning Office of Lianjiang County to Zhu’s parents, 

indicating that Zhu must submit to sterilization upon her 

return to China, and a letter from her mother, noting that the 

officials had learned that Zhu had children. The BIA denied 

the motion because Zhu’s documentation showed no material 

change in country conditions, but rather reflected 

“incremental increases in the enforcement of family planning 

policies in China that have been in existence for 

approximately 30 years.” App. 1146. 

 2 All cites to the appendix are to volumes II and III.
5

On January 14, 2013, Zhu filed a third motion to 

reopen, this time with voluminous documentation that she 

asserts demonstrates a “material change” in China’s 

enforcement of its population control policies in her home 

region. See App. 11-1143. These documents purportedly 

come from the U.S. government, Chinese government 

websites, Chinese governmental entities or officials, and 

international media outlets. She contends that these 

documents show that the United States Department of State’s 

May 2007 “China: Profile of Asylum Claims and Country 

Conditions” (the “2007 Profile”), which the BIA had 

previously relied upon concerning treatment of those who 

violate the population control policies, does not reflect current

conditions in China. Among other things, Zhu asserts that 

these documents show that foreign-born children now count 

for family planning purposes and new programs have been 

implemented in her home province that more strictly enforce 

population controls. Zhu also provided an affidavit from an 

expert opining about the authenticity of four documents

purporting to embody population control enforcement 

measures from Changle City, which is approximately thirty 

kilometers from Zhu’s hometown of Guantou. On March 28, 

2013, the BIA denied Zhu’s motion to reopen, concluding 

that she had failed to establish a material change in country 

conditions and had not demonstrated a prima facie case for 

CAT relief. Zhu thereafter filed a petition for review.

II.

The BIA had jurisdiction under 8 C.F.R. § 1003.2 to 

review Zhu’s motion to reopen, and we have jurisdiction to 

review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1). 

We review the denial of a motion to reopen for an abuse of 
6

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

Thus, the BIA’s ultimate decision is entitled to “broad 

deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d 

Cir. 2003) (internal quotation marks omitted), and “will not 

be disturbed unless [it is] found to be arbitrary, irrational, or 

contrary to law.” Guo, 386 F.3d at 562 (internal quotation 

marks and citation omitted).

3 Similarly, we review the BIA’s 

evidentiary rulings deferentially. See Cheng v. Att’y Gen., 

623 F.3d 175, 182 (3d Cir. 2010).

III.

With limited exceptions, a motion to reopen must be 

filed within ninety days of the date of entry of a final 

administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain 

relief based on an untimely motion to reopen, Zhu had to 

provide material evidence of changed conditions in China that 

could not have been discovered or presented during the 

previous proceeding. See 8 C.F.R. § 1003.2(c)(3)(ii). Here, 

the BIA denied Zhu’s motion to reopen her removal 

proceedings because it found: (1) “[h]er evidence is not 

sufficient to establish a material change in circumstances or 

country conditions ‘arising in the country of nationality’ so as 

to create an exception to the time and number limitations for 

filing another late motion to reopen to apply for asylum,” and 

 3 We review the BIA’s factual findings under the 

substantial evidence standard, which means that they are 

conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary. 8 U.S.C. § 

1252(b)(4)(B); Abdille v. Ashcroft, 242 F.3d 477, 483–84 (3d 

Cir. 2001).
7

(2) she “has not demonstrated a prima facie case for 

protection under [CAT].”4 App. 6. 

To determine if the BIA abused its discretion in 

finding that Zhu did not present evidence to establish a 

material change in country conditions, we must determine if 

the BIA meaningfully considered the evidence and arguments 

Zhu presented. Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d 

Cir. 2008). This does not mean that the BIA is required to 

expressly parse each point or discuss each piece of evidence 

presented, id. at 268, but “it may not ignore evidence 

favorable to the alien.” Huang v. Att’y Gen., 620 F.3d 372, 

388 (3d. Cir. 2010). To fulfill this requirement, the BIA must 

provide an indication that it considered such evidence, and if 

the evidence is rejected, an explanation as to why it was 

rejected.

In this case, Zhu presented more than 85 documents, 

spanning over 1,000 pages. With little explanation, the BIA

concluded that: (1) Zhu failed to authenticate documents from 

China; (2) documents from places other than Zhu’s 

hometown or county do not establish she is likely to be 

persecuted; (3) her expert’s opinion concerning the 

authenticity of four foreign documents was speculative; (4) 

evidence from components of the United States government 

did not show Zhu would be subjected to sterilization; and (5)

she did not show that the 2007 Profile is now inaccurate or 

unreliable. We will examine the BIA’s treatment of each 

category of evidence.

 4 On appeal, Zhu does not challenge the BIA’s finding 

that she did not show prima facie eligibility for CAT relief. 
8

A. Foreign Government Documents

1. Authentication Generally

We first address the authentication of documents from 

foreign sources. Pursuant to 8 C.F.R. § 1287.6,5 official

foreign records must be “evidenced by an official 

publication” or “certified by an officer in the Foreign Service 

of the United States, stationed in the foreign country where 

the record is kept.” Attempting to comply with this 

provision, Zhu’s attorney sent each Chinese government 

document to the Consulate General of the United States in 

Guangzhou, China, and the Fujian Provincial Foreign Affairs 

Office, asking for assistance in authenticating the documents,

but he received no replies. 

 Although failure to authenticate pursuant to 8 C.F.R. 

§ 1287.6 does not result in automatic exclusion, Liu v. 

Ashcroft, 372 F.3d 529, 532 (3d Cir. 2004), an unsuccessful 

effort to obtain such a certification does not excuse the 

proponent of the document from providing other grounds on

which the BIA could find that a document is what it purports 

to be. Indeed, we have held that when an asylum seeker fails 

to comply with the certification procedure set forth in 8 

C.F.R. § 1287.6 because of a “lack of cooperation from 

government officials in the country of alleged persecution,” 

that individual may “attempt to prove the authenticity . . . 

 5 The language of this regulation is identical to 8 

C.F.R. § 287.6. The only meaningful distinction is that 8 

C.F.R. § 287.6 applies to proceedings before an IJ, whereas 8 

C.F.R. § 1287.6 applies to proceedings before the BIA. 
9

through other means.”6

 Lin v. Att’y Gen., 700 F.3d 683, 686-

87 (3d Cir. 2012) (citing Liu, 372 F.3d at 533). Proponents of 

evidence have an obligation to lay a foundation from which a 

factfinder can conclude the evidence is what it purports to be 

and that it is trustworthy. The BIA concluded that Zhu had 

not “established the authenticity of her foreign documents in 

another manner.” App. 5. Other than its analysis of the 

expert’s opinion concerning a handful of local documents,

the decision treats most of the foreign documents Zhu 

submitted similarly, regardless of their alleged source, and

does not address whether other efforts were made to 

authenticate the documents and, if so, why they failed.7

 

Although the Federal Rules of Evidence do not apply 

to immigration proceedings, Ezeagwuna, 325 F.3d at 405, 

evidence is admissible if it is probative and its use is 

fundamentally fair so as not to deprive the alien of due 

process. See, e.g., Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 

268 (2d Cir. 2006). Exclusion of evidence is exceptional. 

INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984). 

Nonetheless, the BIA can reject evidence that it finds to be 

untrustworthy or irrelevant and can accept evidence that has

significant indicia of reliability.

 6 We have adopted this holding because “asylum 

applicants [cannot] always reasonably be expected to have an 

authenticated document from an alleged persecutor.” Liu, 372 

F.3d at 532.

7

The BIA did consider Zhu’s proffered expert opinion 

as to the authenticity of four local government documents. 

But other than the expert opinion, the BIA’s opinion does not 

reflect consideration of other means by which Zhu’s foreign 

documents may be authenticated. 
10

 These significant indicia of reliability may be shown 

in various ways. For example, proponents could turn to the 

Federal Rules of Evidence, even though they are not binding, 

for guidance. Here, some of the documents Zhu presented 

appear to come from Chinese government websites (indicated 

by “.gov.cn” domain names). App. 307-33. The Court of 

Appeals for the Seventh Circuit, considering the same 

documents and relying on Fed. R. Evid. 902, held that 

documents from Chinese government websites are

“presumptively authentic if government sponsorship can be 

verified by visiting the website itself.” Chen v. Holder, 715

F.3d 207, 212 (7th Cir. 2013). This is one example of how 

the Federal Rules of Evidence may provide an avenue to 

authenticate documents.8

 

In addition, proponents may provide other grounds 

upon which the BIA could find the documents authentic. For 

instance, the proponent could provide information concerning 

how the document was obtained, identify the source of the 

information contained in the document, or show that there are 

 8 The BIA itself has recognized that “[t]he [Rules], 

while not binding, may provide helpful guidance in 

immigration proceedings because the fact that specific 

evidence would be admissible under the Federal Rules ‘lends 

strong support to the conclusion that admission of the 

evidence comports with due process.’” Matter of D-R-, 25 I. 

& N. Dec. 445, 458 n.9 (BIA 2011) (quoting Felzcerek v. 

INS, 75 F.3d 112, 116 (2d Cir. 1996)); see also Vatyan v. 

Mukasey, 508 F.3d 1179, 1182-84 (9th Cir. 2007) (holding 

that foreign government records may be authenticated 

through 8 C.F.R. § 1287.6 or any recognized procedure, 

including the Federal Rules of Evidence). 
11

consistencies between the information contained in the 

otherwise unauthenticated document and authenticated 

documents. A proponent could also offer an expert to testify 

about these topics and others, such as the use of government 

seals or the presence of official signatures with which the 

expert is familiar. The proponent could also offer forensic 

testing results or evidence from the United States Department 

of State concerning foreign documents. Cf. Liu, 372 F.3d at 

534-35 & n.9 (reminding the BIA that it may “choose to order 

forensic testing of the original [document] . . ., take additional 

testimony, [and] seek guidance from State Department 

reports”). We emphasize that the burden to make this 

showing of authenticity as well as relevance rests with the 

proponent of the document. The BIA is not required to 

conduct an independent examination of a document where the 

proponent has provided no basis from which it could find the 

document is authentic or decipher its relevance. Thus, if a 

proponent fails to make such a showing, then it is within the 

BIA’s discretion to decline to rely on such evidence. If such 

a showing is made, then the BIA must consider the evidence. 

See Zheng, 549 F.3d at 266. 

2. Documents from Guantou Town and Lianjiang 

County

Turning to Zhu’s evidence, we will first examine the 

BIA’s treatment of documents from Zhu’s hometown and 

county, which the BIA either ignored, rejected, or discounted. 

These documents purport to describe recent population 

campaigns to meet quotas for sterilizations and abortions.

9

 

 9 For example, Zhu submitted the following evidence 

that was unavailable at the time of her last motion to reopen: 
12

The Court of Appeals for the Seventh Circuit reviewed many 

of the same documents and noted that if the documents are 

genuine, “they constitute strong evidence that harrowing 

practices are common in” her hometown and county. Ni, 715 

F.3d at 628. The BIA did not specifically discuss these 

 

a post-September 1, 2008 document purportedly issued by the 

People’s Government of Guantou Town as family planning 

publicity material, titled “The Campaign of ‘Bringing the 

New Custom of Marriage and Child-bearing into Thousands 

of Households’ in Guantou Town,” which states that 

“[w]omen with one child are required to perform an IUD 

insertion; women with two or more children are required to 

perform the sterilization . . . [r]emedial measures should be 

taken for unauthorized pregnancies (such as abortion or 

induced labor abortion),” App. 729-30; a June 11, 2009 

document allegedly issued by the People’s Government of 

Guantou Town to every village, titled “Notification with 

regard to the Issues on Stepping Up the Work of the HundredDay Battle on Population and Family Planning,” which

instructs officials to “complete the missions of required 

abortion, induced labor abortion, sterilization, and collection 

of social maintenance fees,” App. 701; and a December 24, 

2010 document supposedly issued by the Lian Jiang County 

Population and Family Planning Leadership Group to various 

township family planning leadership groups, titled 

“Announcement on Launching Countywide Massive Family 

Planning Clean-Up Work,” which instructs them to form 

“task force[s]” to “enter into the homes” of people who 

“return to their hometown for the holidays” and conduct a 

“2011 New Year and Spring Festival massive cleanup 

campaign on ‘double check-ups,’ ‘four surgeries’ and social 

child support fee collections,” App. 687.
13

documents, so we do not know if it discounted them because 

they lacked authenticity or relevance, or for some other 

reason. Thus, we are unable to evaluate whether the BIA 

appropriately exercised its discretion. 

Because the documents from Zhu’s hometown and 

county that she presented, if authentic, may be probative and 

other avenues may be available to authenticate them, and 

because we are unable to discern why the BIA discounted 

them, we will remand to the BIA for it to consider whether 

Zhu has made a showing of authenticity and relevance 

concerning those documents. If the BIA determines that such 

a showing has been made, then it may give whatever weight it 

deems appropriate to that evidence in light of all of the other 

evidence presented. Liu, 372 F.3d at 534 n.9 (“[T]he BIA 

may proceed on remand as it does with respect to any 

evidentiary question, evaluating issues of materiality, 

relevance, probity, and the general requirements of due 

process.”). 

3. Documents from Fujian Province

We next examine the documents from neighboring 

areas within Zhu’s home province, Fujian. Zhu offered 

documents that appear to come from Fujian’s government 

website and other province level sources,10 as well as internal 

 10 For example, Zhu submitted a print-out purportedly 

from a Fujian government website page dated May 6, 2008, 

titled “Answer to Robert Lin’s Inquiry: ‘Family Planning 

Policy with Respect to People Returning to China from 

Overseas,’” which gives an answer from Fujian’s Population 

and Procreation Planning Committee, stating that the 
14

government documents from other towns and counties within 

Fujian,11 that purport to describe population control campaign 

 

sterilization policy applies to parents of two overseas-born 

children returning to Fujian. App. 307-08. 

11 For example, Zhu submitted the following evidence 

that was unavailable at the time of her last motion to reopen: 

a May 7, 2009 document allegedly issued by the Chang Le 

City Population and Family Planning Leadership Group, 

titled “Announcement on Diligently Implementing the 

Population and Family Planning Work in May, June and 

July,” which instructs officials to “[s]upervise the 

actualization of double check-ups, IUD installation, 

sterilization and social child support fee collections” and 

[s]peed up the sterilization process,” while explaining that 

“[a]ll illegal extra pregnancies should be inducted or 

terminated.” App. 401-03; a December 2, 2009 document 

purportedly issued by the Family Planning Leading Group of 

Tantou Town, titled “Notice of Strengthening of Family 

Planning Work of Tantou Town,” which, in accordance with 

“the spirit of ‘Population and Family Planning Regulations of 

Fujian Province,’” confirms that “Chinese women whom 

have given birth to two children in a foreign country . . . 

[r]egardless of whether their children have foreign nationality 

. . . are required to return to China and undergo sterilization 

operation . . . [u]nless they change their nationalities,” App. 

608; and a December 31, 2009 document supposedly issued 

by the Leading Team of Population and Family Planning of 

Chang Le City, titled “Notification with Regard to Serious 

Implementation of Population and Family Planning Program 

in October, November and December,” which instructs the 

leading teams of various townships to “organize village 

household cadres to prepare for an urgency effort on targets 
15

details and policies. The BIA found documents outside Zhu’s 

hometown and county inapplicable to Zhu, and hence 

irrelevant. The BIA’s treatment of this evidence is 

inconsistent with its past decisions wherein it allowed a 

petitioner to establish eligibility for relief based upon 

evidence that the births of her children “violated family 

planning policies in that alien’s local province, municipality, 

or other locally-defined area.” In re J-H-S-, 24 I. & N. Dec. 

196, 197-98 (BIA 2007); cf. Shao v. Mukasey, 546 F.3d 138, 

142 (2d Cir. 2008) (noting the BIA acknowledges the local 

nature of family planning enforcement in China). Moreover, 

the BIA inexplicably found the information in these 

documents to be of no value yet found information in U.S. 

country reports describing activities in areas outside of Zhu’s 

home region, as described below, worthy of consideration. 

Because the BIA did not explain why it did not consider 

Zhu’s evidence from other areas within her home province of 

Fujian—some of which are within 30 kilometers of her 

hometown—and which may corroborate her claim, we will 

remand for the BIA to consider whether the documents from 

Zhu’s province are authentic and relevant, and, if they are, 

why they do not warrant reopening the proceedings.12

 

who have failed to carry out long-term contraceptive 

measures,” “strictly fulfill any proposed sterilization duty,” 

and “[s]trengthen critical remedial measures” by 

“implementation of induced labor operation.” App. 852.

12 This directive is not tantamount to requiring that the 

BIA grant the motion to reopen. Rather, it is a directive to 

explain if the proponent has shown that the documents are 

relevant and authentic and, if so, whether they support the 

motion to reopen.
16

We will, however, not disturb the decision to reject the 

expert opinion that Zhu offered to authenticate four 

documents purportedly from the Chang Le City Population 

and Family Planning Leadership Group, Chinese Communist 

Party Chang Le City Shou Zhan Township Committee, and 

the Shou Zhan Township Population and Family Planning 

Leadership Group. Zhu’s expert, Dr. Flora Sapio,13 opined 

that the documents were authentic based on their language, 

style, format, and internal coherence. She identified two of 

the documents as notices, and concluded, based on their 

bureaucratic language and the persons to whom they are 

addressed, that one is from an organ of the state and one is 

from the party committee of Shouzhan Township in Fujian 

Province. She then explained that the other two documents 

are likely internal memoranda that administrative law 

enforcement officials used or possibly distributed to residents, 

given their simple language and terse tone. The BIA 

discounted Dr. Sapio’s expert opinion because it found it 

“speculates as to the credibility of the authors and the 

circumstances under which the documents were created.”

App. 6.

As stated earlier, we review the BIA’s evidentiary 

ruling deferentially. Cheng, 623 F.3d at 182. Under this 

 13 Dr. Sapio received her doctorate in History and 

Civilization of the Far East, and describes herself as a 

Chinese law scholar. She has published articles about 

corruption and economic crimes in China. She explained 

that, as part of her research on “legal lawlessness,” App. 468, 

she examines Chinese legal and political documents, and the 

first operation she normally performs on any document 

source is assessing whether or not it is genuine. 
17

deferential standard, we cannot say that the BIA abused its 

discretion in discounting the expert’s opinion. Other than 

saying that she received the documents from Zhu’s counsel, 

Dr. Sapio does not provide any information concerning how 

or from whom the documents were obtained. Moreover, 

while Dr. Sapio explained why the presence or absence of 

serial numbers, the paper size, headings, interlinear spaces, 

margins, main body of text, official seals, filing information,

and classification level suggest that they are authentic 

documents from government entities, she provided no 

statements that show she is familiar with official seals or 

serial numbers used by the purported sources of these 

documents such that a factfinder could determine that the 

document comes from the entity associated with the seal. 

Thus, the BIA had no information upon which to determine 

the source of these four documents other than the linguistic 

analysis on which Dr. Sapio asked the BIA to rely. Unlike 

other evidence it inexplicably discounted, the BIA explained 

why it rejected reliance on the expert’s opinion. This 

explanation showed that the BIA considered the documents 

and the opinion and found that it lacked a basis on which to 

conclude that the documents came from the entities listed on 

them. For these reasons, we will not disturb the BIA’s 

decision not to rely upon Dr. Sapio’s expert opinion.14

B. U.S. Government Documents

 14 As the Seventh Circuit noted, the BIA’s rejection of 

Dr. Sapio’s expert opinion has been discussed in at least 

nineteen appellate cases from six circuits, and not once has a 

court of appeals found the BIA’s rejection of the expert report 

to constitute an abuse of discretion. See Ni, 715 F.3d at 625.
18

Finally, we examine the BIA’s treatment of documents 

from components of the U.S. government. In this case, there 

is no indication that the BIA misunderstood its authority to 

consider such documents, but it appears it did not give full 

consideration to their contents. The BIA found that the 2009 

and 2010 Annual Reports of the Congressional-Executive 

Commission on China (“CECC”),15 the 2007 Profile, and 

State Department reports from 1994, 1995, 1998, 2004, and 

200516 indicated that “social compensation fees, job loss or 

demotion, loss of promotion opportunity, expulsion from the 

party, destruction of property, and other administrative 

punishments are used to enforce [China’s] family planning 

policy.” App. 5. The BIA then concluded that this evidence 

“is not sufficient to demonstrate that the respondent will be 

 15 The CECC is a body created by Congress with the 

legislative mandate to monitor human rights and the 

development of the rule of law in China. It is composed of 

nine Senators, nine Members of the House of 

Representatives, and five senior Administration officials 

appointed by the President. See http://www.cecc.gov/about. 

The CECC reports “are pertinent official publications of the 

federal government.” Chen, 715 F.3d at 209.

16 These other State Department reports are titled: 

“China – Country Conditions and Comments on Asylum 

Application,” dated December 20, 1994, App. 1125-44; 

“China – Country Conditions and Comments on Asylum 

Application,” dated December 11, 1995, App. 1051-74;

“China: Profile of Asylum Claims and Country Conditions,” 

dated April 14, 1998, App. 1076-89; “China: Profile of 

Asylum Claims and Country Conditions,” dated June 2004, 

App. 1091-99; and “China: Profile of Asylum Claims and 

Country Conditions,” dated October 2005, App. 1101-10.
19

subjected to sterilization.” Id.17 While the BIA recited a 

number of social and economic actions that China takes to 

enforce its population control policies, it seemingly ignored 

statements in the 2009 and 2010 CECC Reports concerning 

“forced abortions” and “coerced abortions and 

sterilizations.”18 App. 111, 140, 142-43. Like our sister 

circuit, who criticized an identical BIA conclusion19 about 

enforcement methods, we too question “[w]hy the BIA found 

the [CECC] Reports’ discussion of certain ‘administrative 

punishments’ and coercive tactics to be persuasive, but

 17The BIA also held that Zhu had failed to show that 

she would face economic harm amounting to persecution 

because she had not offered information to establish her 

current financial situation. App. 6 (citing to In re T-Z-, 24 I. 

& N. Dec. 163 (BIA 2007) (no showing of economic 

sanctions amounting to persecution where the record contains 

scant information concerning the applicant’s financial 

situation)). On appeal, Zhu does reference the fines she 

would face if forced to return to China, but she does not 

challenge the BIA’s ruling that failure to provide evidence of 

her financial situation dooms that argument.

18Also curious is the BIA’s reliance on evidence of the 

enforcement methods described in the documents from 1994 

to 2004, particularly where the BIA is only allowed to grant a 

motion to reopen if presented with new or previously 

unavailable evidence. 8 C.F.R. § 1003.2(c)(3)(ii). 19 The BIA in Ni also ignored the portions of the 

CECC reports that described abortion and sterilization 

activities and used language identical to the language the BIA 

used in Zhu’s case in reaching its conclusions about what 

could be drawn from these documents. Compare Ni, 715 

F.3d at 627 with App. 5. 
20

[apparently] found the Reports’ discussion of forced 

sterilizations and abortions in Fujian Province not to be 

persuasive . . . .” Ni, 715 F.3d at 627. Moreover, the BIA’s 

treatment of these reports is inconsistent with its precedent 

that requires a comparison of current country conditions with 

those that existed at the time of the hearing on the merits of 

the petition before the IJ. See In re S-Y-G, 24 I. & N. Dec. 

247, 253 (BIA 2007). Because these reports materially bear

on Zhu’s claim and it appears that the BIA only considered 

parts of them, and in light of the BIA’s duty to consider 

material evidence and explain why it does or does not support 

the position of a party,20 Zheng, 549 F.3d at 268, we will 

remand to the BIA for its full consideration of these reports.

21 

 20 We do note that, despite Zhu’s arguments to the 

contrary, the BIA did not err in continuing to place great 

weight on the 2007 Profile. See Ambartsoumian v. Ashcroft,

388 F.3d 85, 89 (3d Cir. 2004) (holding that “State 

Department reports may constitute ‘substantial evidence’ for 

the purposes of reviewing immigration decisions”); Lal v. 

INS, 255 F.3d 998, 1023 (9th Cir. 2001) (describing State 

Department country reports as the “most appropriate and 

perhaps best resource” on country conditions (internal 

quotation marks omitted)). The BIA explained that the

evidence Zhu presented did not “support [Zhu’s] claim that 

the 2007 Profile is heavily reliant upon information provided 

by the Chinese government,” because it found that “State 

Department reports . . . cite multiple sources of information.” 

App. 5. That said, on remand, the BIA should provide an 

explanation for rejecting Zhu’s assertion that more recent 

CECC reports show an increase in the use of “coercive 

measures” to enforce the population control policies and thus,

from her perspective, suggest that the 2007 Profile is out-of-
21

In short, like the Seventh Circuit, we conclude that the 

BIA’s treatment of the U.S. Government and foreign 

government evidence was “perfunctory,” Ni, 715 F.3d at 627, 

and, as a result, the BIA failed to “announce its decision in 

terms sufficient to enable a reviewing court to perceive that it 

has heard and thought and not merely reacted.” Id. at 631 

(internal quotation marks and citation omitted); see also Chen 

v. Holder, --- F.3d ---, No. 12-2279, 2014 WL 448444, at *7

(4th Cir. Feb. 5, 2014) (remanding because the IJ and BIA 

failed to reconcile or explain why the 2009 CECC Report is 

“less persuasive” than the 2007 Profile); Zheng, 549 F.3d at 

266 (holding that “the BIA must actually consider the 

evidence and argument that a party presents” (internal 

quotation marks and citation omitted)); Guo v. Gonzales, 463 

F.3d 109, 115 (2d Cir. 2006) (holding that the BIA has “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”

(internal quotation marks and citations omitted)); 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 and citation omitted)). 

 

date. If the BIA is providing greater weight to State 

Department reports over reports from other United States 

government entities, then it should explain why it is doing so. 21 This is not to suggest that the CECC reports alone 

are necessarily sufficient to demonstrate a material change in 

country conditions. Ni, 715 F.3d at 627.
22

IV.

Because the BIA did not meaningfully address many 

of the documents Zhu presented, we will remand to the BIA 

for a more thorough review and explanation as to whether 

Zhu’s evidence is authentic and, if so, whether it establishes a 

material change in country conditions. We are not suggesting 

that the evidence is authentic or sufficient. Rather, we will 

remand for the BIA to meaningfully review the evidence, 

which may yield a different result or a further explanation for 

the BIA’s decision.22 

For all of these reasons, we will grant the petition for 

review, vacate the order denying the motion to reopen, and 

remand the case to the BIA for further proceedings consistent 

with this opinion. 

 22 As a result, we will not address the BIA’s 

conclusion that the evidence was insufficient to establish a 

material change in country conditions.