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 a n 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 Broadway2 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 Peop le’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 m uch of the evidence that Zhu

submitted in support of her motion , we will grant the petition3 for review, vacate the order denying the motion to reopen

, and remand to the BI A for further proceedings

. 1

I.

Zhu is from Changmen Village, Guantou Town, Lianj iang County, Fujian Province

, China. She entered the

United States in 1999 without proper documenta tion. During

her interview with the Immigration and Naturalization
Service (“INS”) , she stated that she feared persecution because of her opposition to Ch ina’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

, Zh u appeared before the IJ

,

c onceded her removability

, and filed an application for asylum, withholding of rem oval, 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 testi fied

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 Circui t 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 conditi ons in China have changed for the worse.” Id. at 622.4 when they learned she and her boyfriend were living togeth er

. T he IJ f ound Zhu’s testimony lack ed credibility

, denied her

ap plication , and ordered her removed to China

. The B IA
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 r eturned to China. The BIA denied the motion , n oting that Zhu only had one child, which was not in violation of Chinese population control polic ies , and that she ha d 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.” App endix (“App.”) 2 1213.

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

tha t she had given birth to t wo 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 noti ce 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

t he 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 demonstrate s a “material change” in China’s enforcement of its population control policies in her home region

. See App. 11

- 1143. These d ocuments purportedly

come from the U .S. government, Chin ese government
website s , 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 “Chi na: 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 assert s that these documents show that foreign

- born children now count for family planning purposes and new programs have been implemented in h er home province that more strictly enforce population controls. Zhu also provided an affidavit from an

ex pert 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, t he B IA denied Zhu ’s motion t o reopen, concluding
that she had failed to establish a material chang e 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

re view Zhu ’s mot ion 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 of6 discretion. Guo v. Ashcroft , 386 F.3d 556, 562 ( 3d Cir. 2004) Thus, t he 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

, Z hu had to provid e material evidence of ch anged conditions in China that

could not have been discovered o r presented during the previous proceeding. See 8 C.F.R . § 1003.2(c)(3)(ii )

. H ere, 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

co untry 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 adjudi cator 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 unde r [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 cons idered the evidence and arguments Zhu pre sente d. 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.” Hu ang v. Att’y Gen. , 62 0 F.3d 372, 388 (3d. Cir. 2010)

. To fulfill this requirement, th e BIA must provide an indication that it considered such evidence , and if the evidence is rejected, an explanation as to why it w as rejected.

In this case, Zhu presented more than 85 documents, spanning over 1

, 000 pages. With little explanation, t he BIA

c oncluded that : (1) Zhu failed to authenticate documents from
China ; (2 ) documents from places other than Zhu’s hometown or county do not est ablish she is likely to be

p ersecut ed; ( 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 a ddress the authentication of documents from foreign sources. Pursuant t o 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 th is provision, Zhu’s attorney sent each Chinese gover nment
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 n o 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 gr ounds on which the BIA could find tha t a document is what it purports

to be. Indeed, we have held that when an asylum seek e r 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 in dividual may “ attempt to prove the authenticit y . . .

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. § 1 287.6 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 L iu , 372 F.3d at 53 3 ). 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. T he BIA concluded that Zhu had not “established the authenticity of her foreign docu ments in another manner.” App. 5. Other than its analysis of the expert’s opinion concerning a handful of local documents,

the decision tr eats most of the foreign documents Zhu
submitted similarly, regardless of their alleged source, and

does not addre ss whether other efforts were made to authenticate the documents and, if so, why they failed. 7

Although the F ederal 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, th e 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 [can not ] always reasonably be expected to have an

authenticated docum ent 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 gover nment 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 t he
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 Sev enth Circuit, considering the same

documents and r elying on Fed. R. Evid. 902, held that documents from Chinese government website s are “presumptively authentic if government sponsorship can be verified by visiting the website itself

. ” Chen v. Holder , 715
F.3d 207, 2 12 (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

in stance, the proponent could provide information concernin g 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 provi de 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 r ecognized procedure, including the Federal Rules of Evidence).11 consistencies between the information contained in the

otherwise unauthentica ted 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 a lso 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 ] . . ., ta ke additional testimony, [and] seek guidance from State Department
reports ” ). We emphasize th at th e 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 independe nt examination of a document where the proponent has provided no basis from which it c ould 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 re ly on such evidence. If such a showing is made, then the BIA must consider the evidence.

See Z heng , 549 F.3d at 266

.

2. Documents from Guantou Town and Lianjiang County

Turning to Zhu’s evidence, w e will first examine the

BIA’s treatment o f document s 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 review ed 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 Govern ment of Guantou Town as family planning publicity material, titled “ The Campaign of ‘Bringing the

Ne w Custom of Marriage and Child

- b earing 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 i ssued by the People’ s Government of

Guantou Town to every village, titled “Notification with

r egard to the Issue s on Stepping Up the Work of the Hundred

Day Battle on Pop ulation and Family Planning,” which

instructs officials to “complete the missions of r equired abortion, induced labor abortion, sterilization, and collect ion of social maintenance fees,” App. 701; and a December 24, 2010 document supposedly issued by t he Lian Jiang County Population and Family Planning Leadership Group to various township f amily planning leadership groups, titled “Announcement on Launching Count ywide 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 cond uct 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 authen ticity 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 f rom neighboring

area s 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 the14 government documents from other towns and counties within Fujian, 11 that purport to describe population control campaign

sterilization polic y 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 in stallation, 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 is sued by t he Family Planning Lead ing 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 “Chi nese 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 nationali ties,” 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, No vember and December, ” which instructs the leading teams of various townships to “organize village household cadres to prepare for an urgency effort on targets15 details and policies. The BIA found documents outside Zhu’s hometown and county inapplicable to Zhu, and hence
irrelevant. T he BIA’s treatment of this evidence is inconsistent with its past decisions w herein it allowed a petitioner to est ablish 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 are a .” In re J

- H

- S

- , 24 I

. & N

. Dec. 196, 197

- 9 8 (BIA 2007 ) ; c f. Shao v. Mukas e y , 546 F.3d 138, 142 (2d Cir. 2008) ( noting the BIA acknowledg es the local nature of family planning enforcement in China ). Moreover,
th e BIA inexplicably found the information in these

documents to be of n o 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 st erilization 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 t he 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 C ommunist Party Chang Le City Shou Zhan Township Committee, and

t he Shou Zhan Township Population and Family Planning Leadership Group. Zhu’s exper t , Dr. Flora Sapio, 13 opined that the documents were authentic based on their language, style, format, and int ernal 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 Townshi p 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 w hich 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. Sh e 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 ho w 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 th at the document comes from the entity associated with the seal. Thus, the BIA had no information upon which to determine

the source of the se 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 fr om 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. Governmen t 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 fo und 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. gov ernment. 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 the ir contents

. Th e BIA found that the 2009 and 2010 Annual Reports of the Congression al

- Executive Commission on China (“CECC”), 15 t he 2007 Profile, and State Department reports from 1994, 1995, 1998, 2004

, and

2005 16 indicate d that “social compensation fees, job loss or demotion, loss of promotion opportunity, expulsion from the party, destr uction of property, and o ther 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 t he development of the rule of law in China. It is composed of
nine Senators, nine M embers of the House of Representatives, and five senior Administration officials appointed by the President

. S ee http://www.cecc.gov/about

. The CECC reports “are pertinent official publications of the federal governme nt.” 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

– Count r y Conditions and Comments on Asylum Application,” dated D ecember 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

ster ilizations.” 18 App . 111, 140 , 142

- 43

. Like our sister circuit, who criticized an identical BIA co nclusion 19 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

17 The 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 sho wing of economic
sanctions amounting to persecution where the record contains scant information concerning the a pplicant’s financial situation)). On appeal, Zhu does reference the fines she

woul d 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.

18 Also curious is the BIA’s reliance on evidence of the
enforcement methods described in the do cuments 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 tha t 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 persuasi ve . . . .” Ni

, 7 15 F.3d at 627

. Moreover, the BIA’s treatment of these reports is inconsistent with its p r eced e nt that requires a comparison of current country conditions with

those that ex i sted 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 w hy 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 th at, despite Zhu’s ar guments 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 evi dence’ 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 om itted) )

. Th e 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 so urces 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, l ike 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 “an nounce 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 a nd 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 m aterially 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) (“I f 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 p resented, 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 su fficient. 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 den ying the motion to reopen

, and

remand the cas e to the BIA for further procee d i ngs consistent with this opinion.

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

conclusion that the evidence was insufficient to establish a

mater ial change in country conditions.