     05-5741-ag
     Qin Wen Zheng v. Gonzales

1                         UNITED STATES COURT OF APPEALS

2                                FOR THE SECOND CIRCUIT

3                                   August Term, 2006

4    (Submitted:    March 21, 2007          Decided: August 31, 2007
5                                           Errata Filed: September 20, 2007)
6                                 Docket No. 05-5741-ag
7
8                    -------------------------------------

9                                    QIN WEN ZHENG,

10                                     Petitioner,

11                                        - v -

12                           ALBERTO R. GONZALES,
13                   Attorney General of the United States

14                                     Respondent.

15                   -------------------------------------

16   Before:     SACK, PARKER, and HALL, Circuit Judges.

17               Petition for review of a decision by the Board of

18   Immigration Appeals denying the petitioner's motion to reopen his

19   asylum proceedings.         The Board did not abuse its discretion in

20   determining that the petitioner failed to demonstrate changed

21   country conditions.

22               Petition denied.

23                                   Michael Brown, New York, NY, for
24                                   Petitioner.

25                                   Margaret A. Hickey, Assistant United
26                                   States Attorney for the Northern
27                                   District of Illinois (Patrick J.
28                                   Fitzgerald, United States Attorney,
29                                   Craig Oswald, Assistant United States
30                                   Attorney, on the brief), Chicago, IL,
31                                   for Respondent.
1    SACK, Circuit Judge:

2              Qin Wen Zheng, a Chinese citizen from Changle City in

3    the Fujian Province of China, petitions for review of a decision

4    by the Board of Immigration Appeals ("BIA") denying his second

5    motion to reopen proceedings in his case as untimely and

6    numerically barred under 8 C.F.R. § 1003.2(c)(2).   In re Qin Wen

7    Zheng, No. A 77 224 430 (B.I.A. Oct. 18, 2005); see also 8 C.F.R.

8    § 1003.2(c)(3)(ii) (allowing for one motion to reopen filed

9    within ninety days of the final agency decision).   Zheng contends

10   that the BIA wrongly determined that he failed to demonstrate

11   changed country conditions in China that might exempt the motion

12   from those bars.   As particularly relevant here, Zheng argues

13   that the BIA erred in rejecting for lack of authentication a

14   purported notice from a municipal government in China threatening

15   him with "severe[] punish[ment]" if he did not abandon his

16   application for asylum and return to China forthwith.

17                             BACKGROUND

18             Zheng arrived in the United States in July 1998.    He

19   applied for asylum, withholding of removal, and relief under the

20   Convention Against Torture1 ("CAT") based on the alleged forced

21   sterilization of his wife under the Chinese family-planning

22   policy.   At a hearing before Immigration Judge ("IJ") Adam


          1
             United Nations Convention Against Torture and Other
     Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
     1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. See
     also 8 C.F.R. § 208.16(c) (implementing regulations).


                                     -2-
1    Opaciuch, Zheng conceded removability.   He testified and

2    submitted documentary evidence in support of his claims.    On June

3    23, 2000, the IJ denied Zheng's requests for relief, determining

4    that his testimony was not credible because it was inconsistent

5    with his prior statements and other documentary evidence, and

6    that he, therefore, failed to meet his burdens of proof.      In re

7    Qin Wen Zheng, No. A 77 224 430 (Immig. Ct. N.Y. City June 23,

8    2000).   Zheng appealed to the BIA, which affirmed the IJ's

9    decision, without opinion, on November 21, 2002.     In re Qin Wen

10   Zheng, No. A 77 224 430 (B.I.A. Nov. 21, 2002).    Zheng did not

11   petition this Court for review of that decision.

12              In October 2003, Zheng filed a motion to reopen his

13   removal proceedings.   He again argued the merits of his asylum

14   claim and submitted, inter alia, affidavits from, and photographs

15   of, his wife and children in China.   On April 19, 2005, the BIA

16   denied the motion, finding that Zheng had filed the motion beyond

17   the ninety-day time limit and had failed to establish changed

18   circumstances that would permit a late filing.     In re Qin Wen

19   Zheng, No. A 77 224 430 (B.I.A. Apr. 19, 2005).    Again, Zheng

20   refrained from petitioning this Court for review.

21              In August 2005, Zheng filed a second motion to reopen,

22   claiming that he was newly eligible for relief based on changed

23   country conditions in China.   He submitted a variety of documents

24   in support of his motion, including various country reports from

25   the United States Department of State, the governments of the

26   United Kingdom and Canada, and Amnesty International; a newspaper

                                     -3-
1    article; an internet printout of a Chinese law addressing the

2    entry and exit of citizens to and from China; and a copy of a

3    decision by the United States Court of Appeals for the Ninth

4    Circuit.   He also submitted a notice allegedly sent to his wife

5    from officials of his local village that, he contends,

6    demonstrates that conditions had materially changed there.

7               The Village Notice

8               The notice that Zheng submitted was in Chinese

9    accompanied by an English translation.    Entitled "Notice" (we

10   refer to it hereinafter as such), it is dated June 26, 2005, and

11   its letterhead in the submitted English translation reads "Long

12   Tian Villager Commission, Guhuai Town, Changle City, Fujian

13   Province, China."   It also appears to have a stamp on the lower

14   right quadrant which is translated to read "Long Tian Villager

15   Commission, Guhuai Town, Changle City."    As translated, the

16   Notice reads in its entirety:

17              The government is currently investigating those
18              people who had left the country illegally and
19              applied for asylum in overseas. Their behaviors
20              has damaged our countries' international image.
21              From the report we received, we found out that
22              your husband, Zheng Qin Wen is among those people.
23              He not only violated the family planning policy in
24              China, but also illegally left China and went to
25              the United States wherein he did something
26              detrimental to our country's dignity. It is
27              hereby ordered that you must persuade your husband
28              Zheng Qin Wen immediately stopping his asylum
29              application in overseas, coming back to China and
30              surrendering himself to the government to obtain a
31              lenient treatment. Otherwise, he will be severely
32              punished if he is arrested.




                                     -4-
1    The Notice was supported solely, and only to some extent, by an

2    affidavit from Zheng's wife.    Also translated from Chinese to

3    English,2 the affidavit rehearses the underlying assertions of

4    Zheng's asylum application.    The affidavit also attempts to

5    provide further context to the local government's crackdown

6    against Chinese citizens who apply for asylum elsewhere, and

7    generally reiterates the message and substance of the Notice.      It

8    does not include any reference to the Notice.

9                The BIA Opinion

10               The BIA was unpersuaded by Zheng's submission.    See In

11   re Qin Wen Zheng, No. A 77 224 430 (B.I.A. Oct. 18, 2005) (per

12   curiam).    "Much of the evidence now presented, including the

13   wife's affidavit and background material," it said, "was not

14   previously unavailable or is not new. . . .    The new country

15   reports have not been highlighted. . . ."     Id.   The BIA

16   continued:    "[T]he purported notice from the respondent's home

17   town has not been authenticated, a fact which is relevant in the

18   context of this case in light of the [IJ's] adverse credibility

19   finding."    Id.   The agency denied Zheng's motion to reopen on the

20   grounds that his evidentiary submissions failed to demonstrate

21   changed country conditions, which could have excepted the motion

22   from the time and numerical bars that otherwise apply.

23               Zheng petitions for review.



          2
             Although the text of the "Translation Certificate" refers
     to Lawrence He as the translator, the document is signed by Allen
     Chan.

                                       -5-
1                                 DISCUSSION

2                I.   Standard and Scope of Review

3                Zheng's petition to this Court, filed on October 26,

4    2005, is timely only as it pertains to the BIA's denial of his

5    second motion to reopen on October 18, 2005.     See 8 U.S.C.

6    § 1252(b)(1) (requiring a petition for review to be filed no

7    later than thirty days after the date of the order to be

8    challenged).     We therefore may review no more than that denial.

9    See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam)

10   (noting that we are precluded from reviewing the underlying

11   merits of an asylum claim on a motion to reopen).

12               It is undisputed that both the time and numerical bars

13   pertaining to motions to reopen apply here.     See 8 U.S.C.

14   § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).3     Zheng argues,


          3
              The applicable   portion of section 1229a provides:
                 (7) Motions   to reopen.
                      (A) In   general. An alien may file one motion to
                      reopen   proceedings under this section . . . .
                       . . . .
                       (C) Deadline.
                            (i) In general. Except as provided in this
                            subparagraph, the motion to reopen shall be
                            filed within 90 days of the date of entry of
                            a final administrative order of removal.

                            (ii) Asylum. There is no time limit on the
                            filing of a motion to reopen if the basis of
                            the motion is to apply for relief under
                            sections 208 or 241(b)(3) [8 USCS §§ 1158 or
                            1251(b)(3)] and is based on changed country
                            conditions arising in the country of
                            nationality or the country to which removal
                            has been ordered, if such evidence is
                            material and was not available and would not

                                        -6-
1    however, that he has demonstrated the existence of materially

2    changed conditions in China affecting the possibility of his

3    persecution there should he be forced to return, which would

4    satisfy one of four possible exceptions to those limitations.

5    See 8 C.F.R. § 1003.2(c)(3)(ii) ("[T]ime and numerical

6    limitations . . . shall not apply to a motion to reopen

7    proceedings . . . based on changed circumstances arising in the

8    country of nationality or in the country to which deportation has

9    been ordered, if such evidence is material and was not available

10   and could not have been discovered or presented at the previous

11   hearing.").

12               "A motion to reopen proceedings [must] state the new

13   facts that will be proven at a hearing to be held if the motion

14   is granted and shall be supported by affidavits or other

15   evidentiary material."    8 C.F.R. § 1003.2(c)(1).   Such a motion

16   "[may] not be granted unless it appears to the [BIA] that

17   evidence sought to be offered is material and was not available

18   and could not have been discovered or presented at the former

19   hearing."    Id.

20               "We review the decision to deny a motion to reopen

21   removal proceedings for abuse of discretion."    Bhanot v.

22   Chertoff, 474 F.3d 71, 73 (2d Cir. 2007) (per curiam).    The BIA

23   abuses its discretion if its decision "provides no rational


                           have been discovered or presented at the
                           previous proceeding.

     8 U.S.C. § 1229a(c)(7)(A), (C).

                                       -7-
1    explanation, inexplicably departs from established policies, is

2    devoid of any reasoning, or contains only summary or conclusory

3    statements."    Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.

4    2006) (internal quotation marks and citation omitted).

5              II.   The Notice

6              The propriety of the BIA's decision to deny Zheng's

7    second motion to reopen depends on its conclusion that Zheng had

8    not established a change in country conditions, which in turn was

9    based in part on the BIA's refusal to credit the Notice.    The BIA

10   noted that the Notice lacked authentication, which, "in light of

11   the [IJ's] adverse credibility finding," prompted the BIA to

12   reject the document's authenticity.     Citing no authority, Zheng

13   argues that "the Board committed a legal error in giving no

14   weight to the merit of the evidence[,] instead focusing on the

15   admissibility of the evidence."    Pet. Br. at 7.

16             We conclude that the BIA, in relying on the adverse

17   credibility determination made by the IJ following Zheng's asylum

18   hearing, reasonably rejected the authenticity of the Notice.      In

19   Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007), we found that the

20   doctrine of falsus in uno, falsus in omnibus supported a general

21   adverse credibility finding based on a determination that the

22   petitioner had submitted a fraudulent document.     Id. at 170.   In

23   reaching that conclusion, we noted that "a single false document

24   or a single instance of false testimony may (if attributable to

25   the petitioner) infect the balance of the alien's uncorroborated


                                       -8-
1    or unauthenticated evidence."   Id.    Similarly, in Borovikova v.

2    U.S. Dep't of Justice, 435 F.3d 151 (2d Cir. 2006), we decided

3    that the conclusion that a document was fraudulent supported a

4    general finding of adverse credibility sufficient to reject an

5    asylum application.   Id. at 157-58.   The BIA's use here of the

6    IJ's unchallenged conclusion that Zheng was not credible in

7    support of its refusal to credit the authenticity of the Notice

8    was similarly appropriate.

9              The BIA's decision to reject the Notice was further

10   buttressed by the inconsistencies between it and the "new country

11   reports" that Zheng submitted in an attempt to demonstrate that

12   country conditions had changed adversely and materially.    The

13   2004 Department of State report on China submitted by Zheng

14   states:

15             The Chinese Government accepts the
16             repatriation of citizens who have entered
17             other countries or territories illegally. In
18             the past several years, hundreds of Chinese
19             illegal immigrants have been returned from
20             the United States, and U.S. Embassy officials
21             have been in contact with scores of them. In
22             most cases, returnees are detained long
23             enough for relatives to arrange their travel
24             home. Fines are rare. U.S. officials in
25             China have not confirmed any cases of abuse
26             of persons returned to China from the United
27             States for illegal entry. Persons identified
28             as organizers or enforcers of illegal migrant
29             trafficking are liable to face criminal
30             prosecution in China.

31   China: Profile of Asylum Claims and Country Conditions, U.S.

32   Department of State, Bureau of Democracy, Human Rights and Labor,




                                     -9-
1    at 33 (June 2004).4   Although the BIA is required to consider an

2    applicant's countervailing evidence in addition to State

3    Department reports, see Cao He Lin v. U.S. Dep't of Justice, 428

4    F.3d 391, 403 (2d Cir. 2005), the BIA does not abuse its

5    discretion in crediting the State Department reports in the face

6    of uncorroborated anecdotal evidence to the contrary, Wei Guang

7    Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir. 2006); see also Mu

8    Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir.

9    2005).   Apart from the Notice, we have found no evidence in the

10   record indicating that Zheng's act of leaving China to seek

11   asylum in the United States without permission from Chinese

12   authorities would, without more, result in Zheng's persecution.

13              Although Zheng does not mention the case, his argument

14   raises a question akin to one of those we examined in Cao He Lin.

15   There, we addressed the denial by an immigration judge of an

16   application for asylum and concluded that the IJ errs if he or

17   she rejects a document supporting the application solely because




          4
             The petitioner also submitted a September 1999 report
     from the Immigration and Refugee Board of Canada, which examines
     the treatment of illegal emigrants who return to Fujian province.
     Although the BIA properly disregarded this submission because it
     was available to the petitioner at the time of his original
     asylum application, the report focuses on the illegal activities
     of immigrant smugglers, known as "snakeheads," not the emigrants
     themselves. The lone discussion of the role of the Chinese
     government centers on its response to the snakeheads' activities,
     and its attempt to crackdown on the improper treatment of Chinese
     returnees by the snakeheads. The provisions of Chinese law cited
     in the document focus primarily on those who facilitate the
     illegal exit from and entry into the country, and on any citizens
     who obtain immigration documents through illegal means.

                                     -10-
1    it was not properly authenticated under the BIA's regulations.5

2    See Cao He Lin, 428 F.3d at 405.   We reasoned that "[b]ecause

3    asylum applicants can not always reasonably be expected to have

4    an authenticated document from an alleged persecutor," id., 428

5    F.3d at 404 (internal citation and quotation marks omitted), the

6    BIA's authentication regulation "is not the exclusive means of

7    authenticating records before an immigration judge," id.; accord

8    Xue Deng Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir. 2007)

9    (noting that the IJ commits error when it "reject[s] . . .

10   documents solely because they were not authenticated in strict

11   conformity with the regulation"); Yong Ting Yan v. Gonzales, 438

12   F.3d 1249, 1256 n.7 (10th Cir. 2006) ("[C]ourts generally do not

13   view the alien's failure to obtain authentication as requiring

14   the rejection of a document." (citing Cao He Lin, 428 F.3d at

15   404)); see also Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001)

16   (noting that "[t]he procedure specified in 8 C.F.R. § 287.6

17   provides one, but not the exclusive, method" of authentication

18   (internal quotation marks and citation omitted)).

19             As we have discussed, however, the BIA's refusal to

20   credit the Notice in this case did not depend on the lack of

21   official authentication consonant with BIA regulations alone.

22   The BIA's rejection of the Notice's authenticity was based


          5
             Regulations governing authentication of official records
     and public documents in BIA proceedings include the requirement,
     generally, that specified foreign documents must be
     authenticated, either as official documents or as an attested
     copy authorized by both foreign-country officials and the United
     States Foreign Service. 8 C.F.R. § 287.6.

                                    -11-
1    substantially on legitimate concerns about Zheng's credibility

2    and contrary evidence in the record.   That removes this case from

3    the teaching of Cao He Lin.6

4              We do not reach the question of whether the BIA might

5    err if it required strict compliance with 8 C.F.R. § 287.6 for

6    foreign documents submitted in support of motions to reopen.    We

7    recognize that it may not be possible for an applicant filing a

8    motion to reopen to obtain from a foreign government valid and

9    proper authentication of a document such as the Notice, which

10   purports to threaten persecution of an individual seeking asylum

11   elsewhere, even if the evidence supporting its authenticity were


          6
             We note further that the context of the immigration
     proceeding was crucially different in Cao He Lin, which addressed
     a petition for review of the denial of an asylum application. An
     applicant for asylum may meet his burden of proof based entirely
     on his testimony alone; corroborating documents are not required.
     See 8 C.F.R. § 1208.13(a) ("The testimony of the applicant, if
     credible, may be sufficient to sustain the burden of proof
     without corroboration."). Corroborating evidence is required in
     an asylum proceeding only "where it would reasonably be
     expected." Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000). A
     motion to reopen based on changed country conditions, by
     contrast, depends solely on a showing of previously unavailable,
     material documentary evidence in support of the underlying
     proceeding. The Board may consider only the documents submitted
     to establish that conditions have indeed changed critically since
     the applicant's departure from his home country. The concerns
     motivating the Cao He Lin panel are largely absent. The
     petitioner need not have -- indeed could not have -- brought the
     required documents with him given the requirement that the
     evidence must have been previously unavailable, see Wei Guang
     Wang, 437 F.3d at 274 (concluding that evidence obtained before
     the petitioner left China could not support the BIA's grant of a
     motion to reopen because such proof could not amount to "evidence
     that 'is material and was not available and could not have been
     discovered or presented at the previous hearing'" (quoting 8
     C.F.R. § 1003.2(c)(3)(ii)), but the petitioner nevertheless must
     present credible, documentary evidence in order for the BIA to
     grant the motion.
                                    -12-
1    credible.7    We decide only that, in this case, the BIA did not

2    abuse its discretion in declining to consider a document --

3    questionable on its face, supported only by a spouse's affidavit,8

4    and not authenticated pursuant to regulation -- that attempts to

5    establish the sweeping proposition that subsequent to the date of

6    the petitioner's entry into the country and application for

7    asylum, country conditions had undergone a material adverse

8    change sufficient to affect his petition for asylum.

9    B.   Other Evidence

10                The petitioner's other evidence, and arguments in

11   support thereof, are also unavailing.     The BIA acted within its

12   discretion in determining that many of the documents submitted to

13   it were previously available and that the country reports alone

14   did not demonstrate changed country conditions.     Zheng failed to



          7
             Conversely, we have found that a foreign government's
     statement that a document is not authentic may be of limited
     probative value. In Zhen Nan Lin v. U.S. Dep't of Justice, 459
     F.3d 255, 269-70 (2d Cir. 2006) (finding unreliable a United
     States Consular Report that relied entirely "on the opinions of
     Chinese government officials who appear to have powerful
     incentives to be less than candid on the subject of their
     government's persecution of political dissidents" because
     "[w]here . . . the document at issue, if authentic, is evidence
     that a foreign government violated human rights, that
     government's 'opinion' as to the document's authenticity is
     obviously suspect and therefore of questionable probative
     value").
          8
             To the extent that the wife's affidavit was submitted in
     an effort to authenticate the Notice -- which is not clear from
     the text of the affidavit, as it does not mention the Notice --
     it fails to do so. In addition to the fact that it includes no
     mention of the Notice, such as how, when, and where the wife
     received it, the affidavit merely reiterates the underlying
     asylum arguments and the substance of the Notice.
                                      -13-
1   explain why any of the documents, which were dated from September

2   1999 to February 2004, could not have been submitted earlier.

3                               CONCLUSION

4             The BIA did not abuse its discretion in denying the

5   motion to reopen.   The petition is denied.   Our review having

6   been completed, the petitioner's request for a stay of removal is

7   also denied.




                                   -14-
