                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 11-2681
                                     ___________

                                 JIAN ZUAU ZHENG,
                                               Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                               Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A070-838-800)
                    Immigration Judge: Honorable William Strasser
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 8, 2012

             Before: RENDELL, VANASKIE and GARTH, Circuit Judges

                            (Opinion filed: March 12, 2012)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      As the parties are familiar with the background of the case, which we have set

forth previously in Zheng v. Attorney Gen. of the United States, 549 F.3d 260 (3d Cir.
                                            1
2008) (“Zheng I”), and Zheng v. Attorney Gen. of the United States, 396 F. App‟x 812

(3d Cir. 2010) (“Zheng II”), we will only briefly summarize the background here

(although we will refer to other facts as they become relevant to our analysis).

       Essentially, Jian Zhau Zheng, whose exclusion order became final in 1997, sought

to reopen his immigration proceedings in the Board of Immigration Appeals (“BIA”). In

2006, he filed his second motion to reopen,1 which the BIA denied. Zheng then filed a

petition for review. We granted the petition and vacated the BIA‟s order on the basis of a

procedural deficiency in the BIA‟s analysis. In short, and without implying that the BIA

came to the wrong result, we held that the matter had to be remanded because the BIA

needed to fully consider the evidence Zheng presented. Zheng I, 549 F.3d at 272.

       On remand after Zheng I, Zheng submitted additional evidence (14 additional

documents) to the BIA. The BIA again denied the motion to reopen. Zheng filed another

petition for review, which we also granted. Reviewing the matter, we described the

BIA‟s ruling and stated that it was unclear whether the BIA followed the “directive that it

„must actually consider the evidence and argument that a party presents.‟” Zheng II, 396

F. App‟x at 814. We further explained:



       1
        Generally, an alien may file with the BIA one motion to reopen his proceeding
and that motion must be filed within 90 days of the date of the final administrative
decision. 8 C.F.R. § 1003.2(c)(2). Zheng sought to avoid the time- and number-bars by
showing that his motion to reopen was “based on changed circumstances arising in the
country of nationality . . . if such evidence is material and was not available . . . at the
previous hearing[.]” Id. at § 1003.2(c)(3)(ii).
                                                2
      The BIA‟s approach is deficient because it completely fails to examine the
      submitted evidence and to determine whether it supports Zheng‟s claim that
      conditions in China have changed. We remanded this case because the BIA
      did not “discuss most of the evidentiary record[.]” 549 F.3d at 269. The
      BIA‟s decision following remand still lacks any reasoned discussion of
      either the initial submissions from Zheng or the additional fourteen
      documents submitted on remand. Without a substantive analysis by the BIA
      of the evidence adduced by Zheng, we are unable to discern its reasons for
      denying the motion to reopen.

Id. at 815. Stating also that the BIA had not conducted a qualitative assessment of the

evidence submitted, as it must to analyze material evidence of changed country

conditions, we vacated the BIA‟s decision. Id. We remanded the matter so that the “BIA

may address Zheng‟s evidence and explain whether that evidence supports his claim of

changed country conditions and thereby warrants reopening his exclusion proceeding.”

Id.

      On remand before the BIA, Zheng again submitted additional documents (totaling

192 pages). He provided documents about two individuals who purportedly were

sterilized in China after having two children in the United States; more information about

Chinese household registration requirements for children born in the United States; and

additional State Department and Congressional reports on China. The materials also

included a “review and evaluation” of the State Department Report and a packet of cases

about forced abortions, infanticide, and other examples of coercive family planning

originally collected by an anonymous Chinese national and prepared by the China Aid

Association and Women‟s Rights without Frontiers for a Congressional hearing.

                                            3
       The BIA again denied Zheng‟s motion, this time issuing a seven-page, single-

spaced decision to support its ruling that Zheng‟s evidence was insufficient to establish a

material change in the enforcement of the population control policy. The BIA also

declined to exercise its authority to reopen the proceedings sua sponte, holding that

Zheng had not shown an exceptional situation warranting reopening.

       Zheng presents another petition for review. We have jurisdiction under 8 U.S.C.

§ 1252(a). We review the BIA‟s order denying the motion to reopen for abuse of

discretion. Zheng I, 549 F.3d at 264-65.

       On review, we conclude that on this remand, the BIA thoroughly considered the

evidence, as we expected, and corrected the procedural deficiency in its analysis that we

identified in the earlier decisions in this case. We hold that the BIA‟s conclusion, based

on a full analysis of the evidence, was not an abuse of discretion. 2

       As Zheng argues, the BIA did not discuss every piece of evidence in detail. For

instance, the BIA declined to address evidence it had already addressed in earlier

precedential decisions (including documents submitted after the first remand, namely the

       2
         Zheng does not seem to challenge the BIA‟s decision not to reopen the
proceedings sua sponte. The BIA‟s decision to decline to exercise its discretion to reopen
a case sua sponte is generally unreviewable, see 8 U.S.C. § 1252(a)(2)(B)(ii); Calle-
Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003), although the Court can review the
BIA‟s ruling on whether a petitioner has shown an “exceptional situation” or, stated
otherwise, whether a petitioner has established a prima facie case for sua sponte relief.
See Cruz v. Att‟y Gen., 452 F.3d 240, 250 (3d Cir. 2006). Even if Zheng were to present
this type of argument, however, it would be without merit. There is no evidence that the
BIA is ignoring a general policy it had established as there was in Cruz. See 452 F. 3d at
246 n.3 & 249-50.
                                             4
1999 Changle City Family Planning Office handbook and opinion, the 2003

Administrative Decision of the Fujian Province Family Planning Committee, as well as

the earlier submitted testimony of John Aird). However, here the BIA incorporated by

reference the reasoning in such cases as Matter of S-Y-G-, 24 I. & N. Dec. 247, 252 (BIA

2007), and Matter of J-W-S-, 24 I. & N. Dec. 185, 189-90 (BIA 2007).

       The BIA otherwise discussed the other evidence in detail. It rejected Zheng‟s

personal evidence as unpersuasive for establishing changed country conditions, noting

that the portion of his affidavit concerning the enforcement of the family planning laws in

China was not based on personal knowledge. The BIA stated that Zheng had not

supported his claims related to forced sterilization of his neighbors in China (or even

asserted that the alleged incidents were related to the birth of foreign-born children). A

letter from the Changle City Family Planning Office also did not persuade the BIA on the

grounds that it was a photocopy without the name or signature of an official. The BIA

may “properly discount” documents that are not authenticated. See Chen v. Att‟y Gen., -

-- F.3d ---, No. 09-3459, 2011 U.S. App. LEXIS 5358, at *14 (3d Cir. Mar. 18, 2011).

The BIA further acknowledged that the letter indicated that Zheng would have to undergo

the same family planning procedures as a local resident would, but noted that the letter

did not specify the penalties for refusing sterilization or demonstrate a reasonable

likelihood that he would be sterilized or face any other sanction that would qualify as

persecution.

                                             5
      The BIA considered the State Department Reports for 2005, 2007, and 2009, and

read them to mean that the Chinese government continues its population control policy,

with enforcement and penalties varying by region, with reports of sporadic human rights

violations by local officials. The BIA noted that violators may have to pay a social

compensation fee of varying amounts, but that Zheng did not prove that any such fee

imposed on him would be persecutory. The BIA also concluded that the State

Department Reports were more reliable than the review and evaluation of them that

Zheng submitted, not only because State Department Reports are generally considered

highly probative evidence but also because the reviewer did not provide a curriculum

vitae, based conclusions in speculation instead of personal knowledge, and demonstrated

an unfavorable bias against the State Department and all government agencies. The BIA

separately noted that the reviewer conceded that there is no universal consensus on

whether forced abortions occur and stated that the review did not purport to address

individual claims. State Department Reports may serve as substantial evidence, and the

BIA provided a well-reasoned explanation to permissibly credit the Reports over other

evidence. See Yu v. Att‟y Gen., 513 F.3d 346, 349 (3d Cir. 2008). We have approved of

similar conclusions by the BIA based on the 2007 State Department Report in an asylum

case brought by a Chinese national from Fujian province who was the mother of two

children born in the United States. See Chen, 2011 U.S. App. LEXIS 5358, at *9-10. In

Chen, we discussed Matter of H-L-H-, which Zheng tries to distinguish. However, as in

                                            6
Chen, Matter of H-L-H- “contains a comprehensive discussion that persuasively

addresses many of the issues before us.” 2011 U.S. App. LEXIS 5358, at *5. In Matter

of H-L-H-, the BIA noted that the 2007 State Department Report discussed evidence that

there were no cases of forced sterilizations in the ten previous years. 25 I. & N. Dec.

209, 214 (BIA 2010).

       The BIA also ruled that neither the Congressional-Executive Commission on

China‟s 2005 Annual Report nor a March 14, 2006 letter from the “Administrative Office

of the National Population and Family Planning Committee” (relating to the application

of family planning laws to citizens returning from abroad) altered the BIA‟s assessment,

in Matter of J-W-S-, 24 I & N. Dec. 185 (BIA 2007), that children born in the United

States are regarded as U.S. citizens and not counted for population control purposes and

that there is no national policy of forced sterilization of returning citizens with a second

child born outside of China. The packet of cases prepared for a Congressional hearing

was described, accurately, as anecdotal evidence that did not convince the BIA that there

is no country-wide campaign of forcible sterilization of returning nationals with children.

       The BIA also declined to rely on incomplete 2007, 2009, and 2010 Congressional-

Executive Commission on China Annual Reports, particularly because it appeared that

crucial aspects of the reports, such as the sections about the status of women, were

missing. The BIA emphasized that the interference with women‟s reproductive lives

continued, and that it varied by locality. A conclusion that conditions continued

                                              7
undermines Zheng‟s claim of changed circumstances. The BIA additionally noted that

the reports, by the references to unspecified “remedial measures” or abortion as an

“official policy instrument,” did not address the treatment of those with foreign-born

children or demonstrate that policy violators would face persecution

       The affidavits and statements that Zheng submitted regarding the forced

sterilization of parents with foreign-born children were held not to be persuasive. The

BIA concluded that two, from Renzum Yuan and Fengchai Chai, were not even affidavits

because they were not sworn before someone authorized to administer oaths. The BIA

questioned the declarants‟ identity, their reliability, and the substance of the statements,

noting additionally that the affidavits were copies from other cases and supported by

unauthenticated documents. Also, Yuan‟s appeared to have been made for purposes of

his own litigation. Discussing the affidavits of Jin Fu Chen and Jiang Zhen Chen, the

BIA noted that not only were they also copies from other cases and supported by

unauthenticated documents, but also they related to parents of children born in Japan and

presented no specific circumstances surrounding the abortions. Other Family Planning

documents were similarly questioned as unauthenticated. As noted above, the BIA may

accord less weight to unauthenticated documents. See Chen, 2011 U.S. App. LEXIS

5358, at *14.

       The BIA ruled that the remaining documents also did not warrant reopening. The

2003 Consular Information Sheet was found not to discuss the population control policy

                                              8
or show that nationals returning to Fujian province with foreign born children would be

persecuted. Although the Population and Family Planning Regulation discussed fines

and rewards to achieve compliance with the law, it did not describe sanctions amounting

to persecution. The testimony of Harry Wu was described as without a clear foundational

basis. His testimony, as well as articles in the record, was criticized as not providing

information specific to the return of nationals to Fujian province. The BIA discussed the

issues of household registration, use of travel documents and the law of entries and exits

in China, citizenship issues for foreign-born children of Chinese descent, and sanctions

for returning Chinese nationals, and concluded that none of the evidence demonstrated

that parents of foreign-born children faced persecution or that the Chinese government

has changed the way it treats the parents of foreign born children.

       In short, unlike in its earlier rulings in Zheng‟s case, the BIA considered Zheng‟s

evidence and conducted a case-specific analysis of the evidence, as it must, see Chen,

2011 U.S. App. 5358, at *10, in coming to its conclusion that Zheng did not demonstrate

a change in country conditions.3 The BIA did not abuse its discretion in denying

Zheng‟s motion to reopen. Accordingly, we will deny Zheng‟s petition for review.




       3
         We reject Zheng‟s argument that the BIA misunderstood or mischaracterized the
basis for Zheng‟s motion to reopen.
                                           9
