                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________                   FILED
                                                                 U.S. COURT OF APPEALS
                                      No. 10-12106                 ELEVENTH CIRCUIT
                                  Non-Argument Calendar              JANUARY 13, 2011
                                ________________________                JOHN LEY
                                                                         CLERK
                                  Agency No. A097-959-210


SHAO JUN GAO,

lllllllllllllllllllll                                                     Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllll                                                     Respondent.

                                ________________________

                            Petition for Review of a Decision of the
                                 Board of Immigration Appeals
                                 ________________________

                                      (January 13, 2011)

Before HULL, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
      Shao Jun Gao (“Gao”), a native and citizen of China, and resident of Zhejiang

Province, petitions for review of the Board of Immigration Appeals’s (“BIA”) order

denying her untimely motion to reopen that was based on changed country conditions.

On appeal, Gao challenges the BIA’s rejection of various documents she submitted

in support of her motion to reopen. After careful review, we grant Gao’s petition, and

vacate and remand to the BIA.

      We review the denial of a motion to reopen an immigration petition for abuse

of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “Our

review is limited to determining whether the BIA exercised its discretion in an

arbitrary or capricious manner.” Id.

      Motions to reopen removal proceedings are particularly disfavored, and

      there are at least three independent grounds upon which the BIA may
      deny a motion to reopen: 1) failure to establish a prima facie case; 2)
      failure to introduce evidence that was material and previously
      unavailable; and 3) a determination that despite the alien’s statutory
      eligibility for relief, he or she is not entitled to a favorable exercise of
      discretion.

Id. (brackets and quotation omitted). An alien may generally file only one motion to

reopen no later than 90 days after the final administrative decision. Id. These time

and numerical limitations, however, do not apply

      when (1) an alien files a motion to reopen that seeks asylum,
      withholding of removal, or relief under the Convention Against Torture;

                                           2
      (2) the motion is predicated on changed country conditions; and (3) the
      changed conditions are material and could not have been discovered at
      the time of the removal proceedings.

Id. Proving that evidence is material is a “heavy burden” because an alien seeking

to reopen removal proceedings on the basis of changed country conditions must

demonstrate “that, if the proceedings were opened, the new evidence would likely

change the result in the case.” Id. at 1256-57.

      Additionally, the alien must prove that the material evidence was not available

and could not have been discovered or presented at the previous hearing. 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Official documents submitted as

evidence in support of a motion to reopen need to be evidenced by an official

publication or attested to by an authorized official. See 8 C.F.R. § 1287.6(a) (stating

that “an official record or entry therein, when admissible for any purpose, shall be

evidenced by an official publication thereof, or by a copy attested by the official

having legal custody of the record or by an authorized deputy”).

      On the record here, the BIA did not abuse its discretion in refusing to afford

substantial weight to many of the documents Gao submitted because they were, as the

BIA correctly found, available and could have been discovered or presented at Gao’s




                                          3
initial hearing in 2005.1 Additionally, several of Gao’s documents were not material

to her claim that China has increased family planning enforcement against emigrants

who resettle in the country. This is because the documents establish only that China

has family planning policies that are consistently enforced, not that China has

increased enforcement of its coercive family planning policies against emigrants with

foreign-born children since 2005.

       However, the BIA arbitrarily discounted: (1) the joint statement from Gao’s

mother and mother-in-law, (2) the first statement from Chen Fucun (her

father-in-law), and (3) Chen Fucun’s supplemental statement about Ms. He’s

sterilization. Only official documents submitted as evidence in support of a motion

to reopen need to be evidenced by an official publication or attested to by an

authorized official. See 8 C.F.R. § 1287.6(a). The statements that Gao submitted are

translations, with copies of the originals that were written in Chinese. It is therefore

difficult to ascertain the basis for the BIA’s conclusion that the documents did not



       1
          We decline to hear Gao’s argument that she was precluded from presenting certain
documents in 2005 by her agent’s ineffective assistance. Gao’s argument improperly attempts to
re-litigate her first motion to reopen in contravention of the BIA’s express statement declining to
reassess her ineffective assistance claim. Because we will ordinarily not review a question that
the BIA declined to address in the first instance, see, e.g., Lopez v. U.S. Att’y Gen., 504 F.3d
1341, 1344 (11th Cir.2007) (findings that are made by the IJ, but that are not adopted by the BIA
and do not form any part of the final order, are not reviewable), we refuse to hear Gao’s
argument that she was precluded from presenting certain pre-2005 documents by her agent’s
ineffective assistance.

                                                 4
have original signatures, especially since, for example, the photocopy of Chen

Fucun’s first statement written in Chinese appears to bear an original signature.2

Given the BIA’s apparent misplaced insistence on authentication under 8 C.F.R. §

1287.6 and lack of an articulated basis for concluding that the Chinese statements

were unsigned, the BIA’s determination that these documents were unsigned and

unauthenticated was arbitrary.

       The BIA also misread the joint statement. The BIA concluded that the joint

statement, which contained four paragraphs referencing a directive from the Zhejiang

Province National Population and Family Planning Commission mandating

sterilization, was inconsistent with the copy of the directive attached to Gao’s motion,

which contained only three subsections, none of which mandated sterilization. The

four paragraphs, however, are summaries of what Gao’s mother and mother-in-law

learned from speaking with government agencies, not paragraph-by-paragraph

parallels of the directive referenced in the statement. Similarly, the BIA refused to

afford any weight to the joint statement because neither provincial or city regulations

mentioned mandatory sterilization.              Yet the undisputed evidence from the

       2
          In discounting Ms. He’s medical record attached to Chen Fucun’s supplemental
statement, the BIA also overlooked the portion of the translation that indicates that the record
was stamped with both the seal of the department and the hospital, as well as the imprint of an
official looking seal on the photocopy of the original. Nevertheless, the BIA correctly found that
the certificate does not indicate the forcible nature of the sterilization procedure. Thus, the BIA
properly afforded the certificate little weight in denying Gao’s motion.

                                                5
Congressional-Executive Commission on China’s 2008 Annual Report shows that

local authorities use mandatory sterilization despite the fact that the practice is

officially prohibited. In sum, the BIA’s misreading of the joint statement, its decision

to fault Gao for provincial and city regulations that fail to formally codify an illegal

practice, and its failure to address the 2006 and 2008 clarifications and responses

from the Chinese government explaining that parents of children born overseas are

subject to China’s family planning policies, and the 2008 annual report from the

Congressional-Executive Commission on China, were arbitrary and capricious. See

Jiang, 568 F.3d at 1258 (concluding that the BIA had overlooked or inexplicably

discounted two affidavits and two Country Reports that the petitioner had provided

in support of her motion to reopen based on changed country conditions in China).

      Ordinarily, we must allow the BIA to apply its expertise to a case first before

considering an issue on appeal. See Gonzales v. Thomas, 547 U.S. 183, 186 (2006).

Where the BIA has not addressed a particular issue, such as changed country

conditions, “the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16

(2002) (per curiam) (quotation omitted). Here, the BIA arbitrarily refused to consider

many of Gao’s documents relating to her claim that Zhejiang Province has increased

the use of mandatory sterilizations on Chinese citizens with foreign-born children

                                           6
since 2007, and expressly based its opinion on “the various evidentiary deficiencies

throughout the respondent’s motion.” Because the BIA’s decision was based solely

on its evidentiary findings, we remand to the agency to consider whether Gao’s new

and material evidence, particularly the statements from Gao’s relatives, establishes

a prima facie case for relief, or whether, despite her statutory eligibility for relief, her

case does not warrant an exercise of discretion. See Jiang, 568 F.3d at 1256

(articulating at least three proper grounds for denying a motion to reopen).

       PETITION GRANTED.




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