                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                     No. 10-3420
                                  _________________

                                      ZHI ZHAO,
                                             Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                Respondent
                            _________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                            (Agency No. A078-015-958)
                     Immigration Judge: Honorable Donald Ferlise
                                 _________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 13, 2011

       Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                          (Opinion filed: September 21, 2011)
                                 _________________

                                      OPINION
                                  _________________


PER CURIAM

      Petitioner Zhi Zhao, a citizen of the People‟s Republic of China, seeks review of

the Board of Immigration Appeals‟ (“BIA”) decision denying her motion to reopen

proceedings. For the following reasons, we will deny the petition for review.
                                              I.

       In August 2002, Zhao was charged with removability for entering the United

States without valid entry documents. At her 2004 removal proceedings, Zhao conceded

that she was removable but filed an application for asylum and related relief claiming that

she was persecuted under China‟s family planning policy by, among other things, being

forced to have an abortion. The Immigration Judge (“IJ”) made an adverse credibility

finding and denied relief. He also found that Zhao had filed a frivolous application. On

March 23, 2006, the BIA affirmed the IJ‟s decision without opinion.

       In October 2008, Zhao filed a motion to reopen alleging a well-founded fear of

future persecution due to changed country conditions in China. She asserted that she

would be sterilized if removed to China because she had given birth to a child in the

United States and was pregnant with a second child. The BIA determined that Zhao had

not established changed country conditions, and denied the motion to reopen as untimely.

This Court then granted Zhao‟s petition for review and remanded the case to the BIA

after determining that it had failed to adequately explain its reasoning for rejecting the

evidence that Zhao submitted in support of her motion. (C.A. No. 09-1392.)

       On remand, Zhao offered additional evidence, including a supplemental statement,

her second child‟s birth certificate, a 2009 letter from her parents, a document from the

Shouzhan Town Birth Control Office notifying her that she is to be sterilized upon her

return to China, information from the Fujian Province Population and Family Planning

Commission, and various background reports. She also asserted, for the first time, that
                                              2
she received ineffective assistance of counsel during her initial appeal to the BIA because

her attorney did not challenge the IJ‟s finding of frivolousness.

       On July 19, 2010, the BIA again denied Zhao‟s motion to reopen. After

concluding that Zhao did not meet the requirements for bringing a claim of ineffective

assistance of counsel, it determined that she “failed to offer sufficient persuasive,

probative, and authenticated evidence to establish a change in circumstances or country

conditions „arising in the country of nationality‟ so as to create an exception to the time

and number limitation for filing a late motion to reopen to apply for asylum.”

       Zhao, proceeding pro se, now petitions for review of the BIA‟s final order of

removal.

                                             II.

       We have jurisdiction to review the BIA‟s final order of removal under 8 U.S.C. §

1252(a), and review a decision denying a motion to reopen for abuse of discretion. Guo

v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). “As a general rule, motions to reopen are

granted only under compelling circumstances.” Id. at 561.

       Motions to reopen must be filed with the BIA no later than 90 days after the date

of the final administrative decision in the proceeding sought to be opened. 8 U.S.C. §

1229a(c)(7)(C)(i). However, this limitation does not apply if the movant seeks reopening

“based on changed circumstances arising in the country of nationality . . . if such

evidence is material and was not available and could not have been discovered or

presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
                                              3
       An ineffective assistance of counsel claim can also toll the statute of limitations

for filing a motion to reopen. Mahmood v. Gonzales, 427 F.3d 248, 251-52 (3d Cir.

2005). To meet the procedural requirements for bringing such a claim, a petitioner must

submit: (1) an affidavit attesting to the relevant facts; (2) evidence that former counsel

was informed of the allegations and allowed a chance to respond; and (3) a statement that

a complaint against counsel has been filed with the appropriate disciplinary authority, and

if not, a reasonable explanation of why not. In re Lozada, 19 I. & N. Dec. 637, 639 (BIA

1988); see also Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001) (concluding that the

Lozada requirements are reasonable). Further, to qualify for equitable tolling, the

petitioner must exercise due diligence in raising the claim. Mahmood, 427 F.3d at 252.

       Zhao asserted that her attorney was ineffective because he failed to challenge the

IJ‟s conclusion that her asylum application was frivolous. In an attempt to comply with

the Lozada requirements, she submitted a statement regarding her attorney‟s alleged

ineffective assistance, a March 2010 complaint that she filed with the New York attorney

disciplinary committee, and a certified mail receipt indicating that she sent the

disciplinary complaint to her former counsel. The BIA determined that Zhao did not

meet the Lozada requirements because she neither informed her counsel of the allegations

against him nor did she give him a chance to respond to the allegations. It also

concluded that, even had she met the procedural requirements, she did not demonstrate

that she exercised due diligence in raising her claim.


                                              4
       We agree that Zhao did not exhibit due diligence in filing her ineffective

assistance of counsel claim. Zhao claims that she did not know that her attorney failed to

challenge the frivolousness finding until she received this Court‟s 2009 decision.

However, she has failed to provide any evidence that she acted with diligence. Assuming

her stated reason for the late filing is correct, then she took no steps to inquire about her

removal proceedings from 2004, when she hired an attorney to file her appeal before the

BIA, until this Court issued a decision in 2009. This does not constitute diligence.

Accordingly, the BIA‟s decision regarding Zhao‟s claim of ineffective assistance of

counsel is not arbitrary or contrary to law. See Shardar v. Att’y Gen., 503 F.3d 308, 311

(3d Cir. 2007) (reciting standard for reviewing a denial of a motion to reopen).

       The BIA also did not abuse its discretion by rejecting Zhao‟s claim that the 90-day

limit for filing a motion to reopen should be excused due to changed country conditions.

See 8 U.S.C. § 1229a(c)(7)(C)(ii). Zhao first contends that the BIA improperly

discounted the evidentiary value of the documents that she submitted in support of her

motion to reopen. See Huang v. Att’y Gen., 620 F.3d 372, 391-92 (3d Cir. 2010)

(remanding where the BIA failed to consider evidence that was both material and

previously unavailable). Zhao is correct that a failure to authenticate documents under 8

C.F.R. § 287.6 does not warrant per se exclusion, and that a petitioner is permitted to

prove authenticity by other means. See Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004).

However, because Zhao did not authenticate the documents in any manner, the BIA


                                               5
“properly discounted” them. See Chen v. Att’y Gen., No. 09-3459, 2011 WL 923353, at

*4 (3d Cir. Mar. 18, 2011).

       We agree with Zhao that it was improper for the BIA to have taken into account

the IJ‟s adverse credibility assessment when considering what weight to give her newly

filed documents, as the credibility determination was unrelated to the claim in her motion

to reopen. See Guo v. Ashcroft, 386 F.3d at 562. This does not, however, warrant a grant

of the petition for review because the BIA also specifically considered the newly filed

documents and found them to be lacking in probative value for other valid reasons. The

BIA also considered the substance of “the statement[s] from family and friends,” and

noted that they did not “demonstrate[] a material change in the application of the family

planning policy in their local village since the date of the last hearing in 2004.” Further,

as explained below, the BIA appropriately based its ultimate conclusion on the finding

that it was unreasonable for Zhao to fear forced sterilization upon her return to China.

See Shardar, 503 F.3d at 312 (noting that a petitioner must establish a prima facie case

for asylum to succeed on a motion to reopen).

       Zhao‟s motion to reopen is based on her fear of being sterilized for having had two

children in the United States in violation of China‟s family planning policy. See 8 U.S.C.

§ 1101(a)(42) (providing that forced sterilization constitutes persecution on account of

political opinion). The BIA determined that the independent record, including the 2007

U.S. State Department Country Report, does not reflect that forced sterilization is used to

enforce the family planning policy in Fujian Province. See In re S-Y-G, 24 I. & N. Dec.
                                              6
247, 257 (BIA 2007) (noting distinction between documents reflecting a policy of

mandatory sterilization and mandatory forcible sterilization and explaining that refugee

status extends only to the latter); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 (BIA

2010) (noting discussion in 2007 Report that there have been no cases of forced

sterilization in Fujian Province in ten years).1 The BIA acknowledged that Zhao‟s

evidence indicated that children born abroad, whose parents are both Chinese nationals

who have not settled in another country, are regarded as foreign nationals. Relying on

the 2007 Country Report and In re H-L-H- & Z-Y-Z-, it nonetheless concluded that this

was not dispositive of whether Zhao would face forcible sterilization. As in Chen, this is

not a situation where the BIA “ignore[d] [the petitioner‟s] evidence or fail[ed] to conduct

a case-specific analysis of the evidence.” 2011 WL 923353, at *3. We thus agree with

the BIA that “the record supports the finding that [Zhao] does not have a well-founded

fear” of forcible sterilization.” See id. Accordingly, we will not disturb the BIA‟s

finding that Zhao failed to establish a prima facie case for asylum.

       In sum, we conclude the BIA did not abuse its discretion in denying Zhao‟s

motion to reopen. We will therefore deny her petition for review.




       1
         Additionally, the BIA properly rejected Zhao‟s assertion that she was eligible to
file a successive asylum application based on changed personal circumstances. See Liu v.
Att’y Gen., 555 F.3d 145, 150 (3d Cir. 2009) (holding that successive asylum applications
based on changed personal circumstances are permitted only within the 90-day reopening
period).
                                             7
