    16-531
    Wang v. Sessions
                                                                                                 BIA
                                                                                             Hom, UJ
                                                                                         A205 888 747

                            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.

            At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 23rd day of May, two thousand seventeen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                PIERRE N. LEVAL,
                ROBERT D. SACK,
                      Circuit Judges.
    _____________________________________

    LINQING WANG,

                             Petitioner,

                       v.                                                   No. 16-531
                                                                            NAC
    JEFFERSON B. SESSIONS III, UNITED STATES
    ATTORNEY GENERAL,

                      Respondent.
    _____________________________________

    For Petitioner:                         Lewis G. Hu, New York, NY.

    For Respondent:                         Benjamin C. Mizer, Principal Deputy Assistant
                                            Attorney General; Terri J. Scadron, Assistant Director;
                                            Christina P. Greer, Trial Attorney; Sarah Martin, Legal


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                                            Intern, Office of Immigration Litigation, United States
                                            Department of Justice, Washington, D.C.

       UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is GRANTED.

       Petitioner Linqing Wang, a native and citizen of the People’s Republic of China, seeks

review of a January 28, 2016, decision of the BIA affirming a June 2, 2014, decision of an

Immigration Judge (“IJ”) denying Wang’s motion to reopen. In re Linqing Wang, No. A205 888

747 (B.I.A. Jan. 28, 2016), aff’g No. A205 888 747 (Immig. Ct. N.Y. City June 2, 2014). We

assume the parties’ familiarity with the underlying facts and procedural history in this case.

       We have reviewed the IJ’s decision as supplemented by the BIA. See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s denial of a motion to

reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

       A motion to reopen must be based on new facts supported by affidavits or other

evidentiary material. 8 U.S.C. § 1229a(c)(7)(B). “A motion to reopen will not be granted unless

the [IJ] is satisfied that evidence sought to be offered is material and was not available and could

not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.23(b)(3).

       The only previously unavailable evidence Wang submitted in support of his motion to

reopen was a February 2014 notification from the Change City Family Planning Office ordering

Wang and his wife to submit for sterilization. The dispositive issue is thus whether the agency

abused its discretion in declining to give weight to the sterilization notification.

       While we generally “defer to the agency’s determination of the weight afforded to an

alien’s documentary evidence,” Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013), in this case the

agency’s determination is problematic for two reasons. First, an IJ may not refuse to credit a

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document based solely on the fact that it is not authenticated pursuant to 8 C.F.R. § 287.6. Cao

He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir. 2005). Second, the BIA

discredited the notification on the basis that it was a photocopy. But the agency’s practice

manuals instruct litigants to submit photocopies of evidence rather than originals. See

Immigration Court Practice Manual at 52-53 (2016); BIA Practice Manual at 42-43 (2016); see

also Yan Rong Zhao v. Holder, 728 F.3d 1144, 1149 (9th Cir. 2013) (holding that BIA may not

give diminished weight to photocopy because its practice manual instructs parties to submit

photocopies). And it is unclear whether the IJ and BIA would have relied solely on the lack of a

signature, given that the document appears to bear an official seal. See Manzur v. U.S. Dep’t of

Homeland Sec., 494 F.3d 281, 289–90 (2d Cir. 2007) (remand is appropriate where we cannot

“confidently predict that the agency would reach the same decision absent the errors that were

made.” (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006))).

       We express no opinion regarding the weight or credibility of the sterilization notification,

but remand for further clarification and explanation from the agency. See Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 117 (2d Cir. 2007); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

F.3d 83, 97 (2d Cir. 2001).

       For the foregoing reasons, the petition for review is GRANTED and the case is

REMANDED to the BIA for further proceedings consistent with this order. As we have

completed our review, the pending motion for a stay of removal in this petition is DISMISSED

as moot.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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