Filed: Mar. 31, 2017
Latest Update: Mar. 03, 2020
Summary: 15-3962 Zhang v. Sessions BIA A077 511 020 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SU
Summary: 15-3962 Zhang v. Sessions BIA A077 511 020 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM..
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15-3962
Zhang v. Sessions
BIA
A077 511 020
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 31st day of March, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 QIAO CHAN ZHANG,
14 Petitioner,
15
16 v. 15-3962
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Scott Bratton, Margaret Wong &
24 Associates LLC, Cleveland, OH.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Linda S.
28 Wernery, Assistant Director;
29 Gregory M. Kelch, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Qiao Chan Zhang, a native and citizen of the
6 People’s Republic of China, seeks review of a December 3, 2015,
7 decision of the BIA denying Zhang’s motion to reopen. In re
8 Qiao Chan Zhang, No. A077 511 020 (B.I.A. Dec. 3, 2015). We
9 assume the parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 We review the BIA’s denial of a motion to reopen “for abuse
12 of discretion, mindful that motions to reopen ‘are
13 disfavored.[’]” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
14 2006) (quoting INS v. Doherty,
502 U.S. 314, 323 (1992)). An
15 alien may move to reopen proceedings once, no later than 90 days
16 after the final administrative decision was rendered. 8 U.S.C.
17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). These
18 limitations may be excused if the motion to reopen is filed to
19 apply for asylum “based on changed country conditions arising
20 in the country of nationality or the country to which removal
21 has been ordered, if such evidence is material and was not
2
1 available and would not have been discovered or presented at
2 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
3 8 C.F.R. § 1003.2(c)(3)(ii). When the BIA considers evidence
4 of country conditions in evaluating a motion to reopen, we
5 review its factual findings under the substantial evidence
6 standard. Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
7 Zhang argues that the BIA abused its discretion in finding
8 no material change in China’s treatment of Falun Gong
9 practitioners since her 2001 merits hearing. As Zhang
10 recognizes, the question is not whether conditions are poor,
11 but rather whether they have changed since her original merits
12 hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); In re S-Y-G-, 24 I.
13 & N. Dec. 247, 253 (B.I.A. 2007) (explaining that the agency
14 “compare[s] the evidence of country conditions submitted with
15 the motion to those that existed at the time of the merits
16 hearing below”). None of the trends Zhang identifies would
17 compel the BIA to find the material change necessary to excuse
18 the untimeliness of her motion.
19 Zhang notes that the State Department’s 2013 International
20 Religious Freedom (“IRF”) report states that the Chinese
21 government sent Falun Gong practitioners to 24 psychiatric
3
1 hospitals for the criminally insane, an increase from prior
2 years. But the 2001 IRF report painted a similarly dire picture
3 of hundreds of Falun Gong practitioners being sent to mental
4 hospitals. Zhang reads the 2013 IRF report to state that the
5 Chinese government sends Falun Gong practitioners to labor
6 camps without giving them the opportunity to recant their
7 beliefs. But the 2013 report simply states that members of
8 banned religious groups, including Falun Gong, have been told
9 to recant their beliefs, a matter also discussed in the 2001
10 report. In any event, the 2001 IRF report likewise
11 memorialized prison sentences for Falun Gong practitioners.
12 Zhang asserts that the Chinese government has ratcheted up
13 pressure on family members of Falun Gong practitioners, but the
14 2001 IRF report likewise notes the Chinese government’s
15 practice of leveraging family members and employers. Finally,
16 Zhang points to a resolution of the United States House of
17 Representatives about organ harvesting from Falun Gong
18 detainees. But that resolution was based on reports dating
19 back to Zhang’s hearing. This record did not compel the BIA
20 to find a material change in country conditions excusing the
4
1 time and number bar on Zhang’s motion to reopen. 8 U.S.C.
2 § 1252(b)(4)(B).
3 Zhang argues that the BIA ignored her evidence. To the
4 contrary, the BIA reviewed Zhang’s documentary evidence in
5 detail, citing passages from several of the reports that reflect
6 ongoing (not increasing) concerns about China’s enforcement of
7 its Falun Gong ban. Nothing more elaborate was required. So
8 long as “the BIA ‘has given reasoned consideration to the
9 petition, and made adequate findings,’” it need not “‘expressly
10 parse or refute on the record’ each individual argument or piece
11 of evidence offered by the petitioner.” Wang v. BIA, 437 F.3d
12 270, 275 (2d Cir. 2006) (quoting Xiao Ji Chen v. U.S. Dep’t of
13 Justice,
434 F.3d 144, 160 n.13 (2d Cir. 2006)).
14 Zhang challenges the BIA’s decision to give little weight
15 to the village committee notice and letter from her mother she
16 submitted with her motion. She raises the same complaint about
17 a letter from her grandmother, but concedes that this document
18 was not submitted with her second motion to reopen. The BIA
19 reasoned that the committee notice was “unauthenticated,
20 handwritten, and unsigned by any official or individual,” and
21 that the mother’s letter “appears to be created for the purpose
5
1 of litigation, is from an interested witness, and is not
2 supported by evidence” that government cadres rushed into
3 Zhang’s grandmother’s home in China.
4 “We generally defer to the agency’s determination of the
5 weight afforded to an alien’s documentary evidence.” Y.C. v.
6 Holder, 741 F.3d 324, 332 (2d Cir. 2013). The BIA had the
7 discretion to discount the village committee notice and
8 mother’s letter for the reasons cited. See, e.g., Matter of
9 H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (giving
10 diminished weight to letters from relatives and acquaintances
11 because they were interested witnesses not subject to
12 cross-examination and the letters were obtained for purposes
13 of litigation), rev’d on other grounds, Hui Lin Huang v. Holder,
14
677 F.3d 130 (2d Cir. 2012); cf. Cao He Lin v. U.S. Dep’t of
15 Justice,
428 F.3d 391, 405 (2d Cir. 2005) (holding “that the
16 IJ erred by rejecting the notarial birth certificate based on
17 Cao’s failure to authenticate it pursuant to ‘regulation’”).
18 Contrary to Zhang’s argument, as the trier of fact, the BIA could
19 discount the documents without an underlying adverse
20 credibility determination. 8 U.S.C. § 1158(b)(1)(B)(ii);
21
Shao, 546 F.3d at 169.
6
1 The BIA did not consider the grandmother’s letter. Zhang
2 referenced that letter in the table of contents accompanying
3 her motion to reopen, but did not append it to the motion or
4 cite it within the motion. The grandmother’s letter bore the
5 same attributes as the mother’s letter, and so remand for the
6 BIA to consider it would be futile. Cao He Lin, 428 F.3d at
7 402.
8 For the foregoing reasons, the petition for review is
9 DENIED. Any pending request for oral argument in this petition
10 is DENIED in accordance with Federal Rule of Appellate Procedure
11 34(a)(2), and Second Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
7
