                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2009

Zhou v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3276




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 07-3276


                                 YUN MEI ZHOU,
                                             Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent




                       Petition for Review of an Order of the
                         United States Department of Justice
                           Board of Immigration Appeals
                              (BIA No. A96-053-885)
                Immigration Judge: Honorable Donald Vincent Ferlise


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 2, 2008

          Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges.

                               (Filed: January 6, 2009)


                             OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

      Yun Mei Zhou petitions for review of a June 28, 2007 order of the Board of

Immigration Appeals (“BIA”) denying her motion to reopen removal proceedings. For
the reasons below, we will grant the petition for review and remand the matter to the BIA

for proceedings consistent with this opinion.

                                  I. Factual Background

       Yun Mei Zhou, a native and citizen of China, was admitted to the United States on

January 15, 2002 with authorization to remain in the United States no later than February

14, 2002. Zhou overstayed her visa, and, on August 7, 2002, she filed an application for

asylum based on religious persecution and sought withholding of removal under 8 U.S.C.

§ 1231(b)(3) and the Convention Against Torture (“CAT”). On May 3, 2004, the

Immigration Judge (“IJ”) denied Zhou’s application for asylum under 8 U.S.C. § 1158 as

well as her application for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3) and

the CAT. In rendering his decision, the IJ expressly made an adverse credibility

determination. Zhou appealed, and the BIA dismissed her appeal on October 12, 2005.

Zhou did not file a petition for review of the BIA’s decision.

       In October 2006, Zhou filed with the BIA a motion to reopen her removal

proceedings pursuant to 8 C.F.R. § 1003.2(c)(3)(ii) based on changed country conditions

in China. Zhou claimed that in March 2006 she joined the China Democracy Party

(“CDP”), an organization that opposes the Communist Party leadership in China and

promotes democracy. In connection with her membership in the CDP, Zhou asserted that

she participated in protest rallies in New York and Washington, D.C., distributed CDP

literature in New York, and published three articles on CDP-affiliated Web sites. Zhou



                                             2
argued she was entitled to reopen her removal proceedings because she would be

persecuted if removed to China due to her involvement with the CDP and the

deteriorating treatment of political dissidents in China. Zhou further claimed that she

could file a successive application for asylum pursuant to 8 U.S.C. § 1158(a)(2)(D) based

on changed personal circumstances affecting her eligibility for relief.

       On June 28, 2007, the BIA denied Zhou’s motion to reopen as untimely. The BIA

concluded that Zhou “has not submitted evidence which tends to demonstrate that

conditions in China have deteriorated” for political dissidents since her last hearing. J.A.

at 54. The BIA also observed that Zhou had been deemed not credible at her removal

hearing and that the credibility finding had not been overturned on appeal. On July 27,

2007, Zhou filed a petition for review of the BIA’s order.1

                          II. Jurisdiction and Standard of Review

       This Court has jurisdiction to consider Zhou’s petition for review of the denial of

her motion to reopen pursuant to 8 U.S.C. § 1252(b). This Court reviews the BIA’s denial

of a motion to reopen removal proceedings for an abuse of discretion. INS v. Doherty,

502 U.S. 314, 323 (1992); Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Under the

abuse of discretion standard, a decision “will not be disturbed unless [it is] found to be




       1
          Around the same time, Zhou filed with the BIA a motion to reconsider its denial
of her motion to reopen, which the BIA denied on October 4, 2007. Because Zhou did
not file a separate petition for review, that denial is not before this Court. Nocon v. INS,
789 F.2d 1028, 1032-33 (3d Cir. 1986).

                                              3
‘arbitrary, irrational or contrary to law.’” Guo, 386 F.3d at 562 (quoting Tipu v. INS, 20

F.3d 580, 582 (3d Cir. 1994)).

                                       III. Discussion

                      A. Motion to Reopen the Removal Proceedings

       In general, an alien may file only one motion to reopen removal proceedings, and

the alien must file that motion no later than ninety days after the date of the final

administrative decision denying relief. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).

Nevertheless, the numerical and time limitations set forth in 8 U.S.C. § 1229a(c)(7) do

not apply if the petitioner can establish “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 have been discovered or presented at the

previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). In

addition, a motion to reopen must establish the petitioner’s prima facie eligibility for

asylum. Guo, 386 F.3d at 563-64. The prima facie standard requires that the moving party

“‘produce objective evidence showing a reasonable likelihood that he can establish [that

he is entitled to relief].’” Id. at 563 (quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d

Cir. 2002)).

       Zhou filed her motion to reopen more than ninety days after the agency issued its

final order of removal. Accordingly, for the BIA to grant her motion to reopen, Zhou was

required to present material evidence of “changed circumstances arising in the country of



                                               4
nationality” that was not available during her earlier hearing. See 8 C.F.R. §

1003.2(c)(3)(ii). In support of her assertion of “changed country conditions,” Zhou

submitted information that was not available at her removal hearing, including the

Chinese government’s “Measures for Administering the Release of News and Information

in China by Foreign News Agencies,” reports detailing the recent arrests of and sentences

imposed on political dissidents who published articles critical of the Chinese government

on the Internet, and the 2005 U.S. Department of State Country Report on Human Rights

Practices in China.2 J.A. at 90-183. The 2005 U.S. Department of State Country Report

reported a “trend towards increased harassment, detention, and imprisonment by

government and security authorities of those perceived as threatening to government

authority” as well as government measures to “control more tightly print, broadcast and

electronic media and censor[] online content.” Id. at 182. With respect to the CDP, the

2005 Department of State Report noted that “[d]ozens of CDP leaders, activists, and

members have been arrested, detained, or confined.” Id. at 183.

       The BIA did not specifically address any of this newly acquired evidence, and it


       2
         Zhou also submitted the 2006 U.S. Department of State Country Report on
Human Rights Practices in China. This report was not submitted to the BIA until after it
denied Zhou’s motion to reopen on June 28, 2007. J.A. at 5-51. Because our review is
limited to the record that was before the agency when it issued the decision under review,
we may not consider the 2006 U.S. Department of State Report on Human Rights
Practices in China. See 8 U.S.C. § 1252(b)(4)(A) (providing that reviewing court must
decide the petition “only on the administrative record on which the order of removal is
based”); Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (“[I]t is axiomatic that we
may not foray outside the administrative record in considering this appeal.”).

                                             5
did not point to any evidence refuting Zhou’s claim of changed country conditions. In

deciding that Zhou had failed to demonstrate “changed circumstances in the country of

nationality,” the BIA concluded that Zhou

       has not submitted evidence which tends to demonstrate that conditions in
       China have deteriorated since the time of [her] hearing. The evidence does
       not tend to show that Chinese officials’ treatment of dissidents is more
       severe at this point. Finally, we note that the Immigration Judge found that
       [Zhou] was not credible, a finding not overturned on appeal. In this motion,
       the respondent’s claims were not adequately supported by documentary
       evidence concerning current conditions in China and her assertions on this
       issue are not credible.

J.A. at 54-55.

       When evaluating the BIA’s decision for an abuse of discretion, this Court is “‘not

foreclosed from determining whether the BIA followed proper procedures and considered

and appraised the material evidence before it.’” Thu v. Att’y Gen., 510 F.3d 405, 412 (3d

Cir. 2007) (quoting Sotto v. INS, 748 F.2d 832, 837 (3d Cir. 1984)); see also Sevoian, 290

F.3d at 177 (quoting Tipu v. INS, 20 F.3d at 583). As the Sotto Court noted, “[t]o

determine whether the administrative action was arbitrary, the courts must be apprised

why evidence, relevant and persuasive on its face, was discredited.” Sotto, 748 F.2d at

837; see also Shardar v. Att’y Gen., 503 F.3d 308, 314-16 (3d Cir. 2007) (concluding that

the BIA abused its discretion when it offered no explanation for its rejection of evidence

offered to show changed country conditions). “If the administrative record fails to reveal

that such evidence has been fairly considered, the proper course is to remand the case to

the INS so that the Service may evaluate such evidence and consider its effect on the

                                             6
application as a whole.” Sotto, 748 F.2d at 837.

       Based on its perfunctory denial of Zhou’s motion to reopen, the BIA abused its

discretion in rejecting her claim of changed country conditions. It failed to explain why

newly acquired evidence, most notably the State Department’s 2005 Country Report on

Human Rights Practices in China and the Chinese government’s “Measures for

Administering the Release of News and Information in China by Foreign News

Agencies,” was discredited or disregarded. Indeed, this Court, in assessing the adequacy

of the BIA’s consideration of evidence, has specifically pointed to the failure to consider

State Department Country Reports on Human Rights Practices as a ground for remand.

Thu, 510 F.3d at 407 (holding that IJ failed to consider all evidence, especially the

Department of State’s Country Report on Human Rights Practices in Burma); see also

Mansour v. INS, 230 F.3d 902, 907-08 (7th Cir. 2000) (concluding that BIA failed to

conduct sufficient review of claim where it incorrectly described petitioner as Syrian

Christian rather than Assyrian Christian and declined to address the U.S. Department of

State’s report detailing persecution of Assyrian Christians in Iraq). Nevertheless, the

BIA’s failure to mention a State Department report specifically does not automatically

render its decision an abuse of discretion. See Toussaint v. Att’y Gen., 455 F.3d 409, 416-

17 (3d Cir. 2006) (concluding that BIA’s decision was adequate even though “the

evidence . . . included country reports and various articles” that the BIA “failed to

mention specifically”). In Toussaint, this Court determined that the BIA’s asserted



                                              7
consideration of “background evidence” satisfied it “that the BIA considered the country

reports and [other] articles.” Id. Here, the BIA’s rejection of Zhou’s motion was

supported by conclusory statements asserting that Zhou’s “claims are not adequately

supported” and that Zhou “has not submitted evidence which tends to demonstrate that

conditions in China have deteriorated since the time of the respondent’s hearing.” J.A. at

54. This analysis does not satisfy us that the BIA “‘considered and appraised the material

evidence before it.’” See Sevoian, 290 F.3d at 277 (quoting Tipu, 20 F.3d at 583).

       One observation the BIA did offer in support of its denial of Zhou’s motion to

reopen was the IJ’s previous adverse credibility determination. Nevertheless, an initial

adverse credibility determination does not automatically taint subsequent applications for

relief. Guo, 386 F.3d at 562-63. Instead, each adverse credibility assessment must be

supported “with statements or record evidence specifically related to the issue under

consideration.” Id. at 562 (“Nor does one adverse credibility finding beget another.”).

While the IJ’s credibility assessment stemmed from Zhou’s initial claim of religious

persecution, Zhou based her subsequent motion to reopen on changed country conditions

in China regarding persecution of political dissidents; there is no indication that the

claims asserted in the motion to reopen are related to Zhou’s earlier claims of religious

persecution. Further, the BIA offered no explanation of why it found the assertions in

Zhou’s motion to reopen based on fear of political persecution to be incredible. See

Shardar, 503 F.3d at 313 (“Facts presented in the motion to reopen are ‘accepted as true



                                              8
unless inherently unbelievable.’” (quoting Bhasin v. Gonzales, 423 F.3d 977, 987 (9th

Cir. 2005))).

                               B.Convention Against Torture

       Zhou asserts that the BIA erred in failing to consider whether she established a

prima facie case for withholding of removal pursuant to the CAT. Because the BIA’s

denial of Zhou’s motion contained no specific analysis of the claim for relief under the

CAT, it appears that the BIA concluded that it was unnecessary to address the issue based

on the IJ’s adverse credibility findings and the stated insufficiency of Zhou’s proffered

evidence of conditions in China.

       An alien is entitled to relief under the CAT if she shows that “it is more likely than

not that he or she would be tortured if removed to the proposed country of removal.” 8

C.F.R. § 208.16(c)(2). In considering a claim under the CAT, “all evidence relevant to the

possibility of future torture shall be considered.” 8 C.F.R. § 208.16. This inquiry is

independent of the inquiry required for consideration of claims for asylum and

withholding of removal. See Ramasameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.

2004). As this Court has observed, “‘claims for relief under the [CAT] are analytically

separate from claims for asylum . . . and for withholding of removal.’” Zubeda v.

Ashcroft, 333 F.3d 463, 467 (3d Cir. 2003) (quoting Kamalhas v. I.N.S., 251 F.3d 1279,

1283 (9th Cir. 2001)). Accordingly, the BIA erred in failing to consider Zhou’s claims




                                              9
under the CAT separately.3 Further, the BIA’s apparent reliance on an adverse credibility

assessment was inappropriate. Zubeda, 333 F.3d at 476 (finding that petitioner’s

credibility with respect to asylum and withholding claims should not “bleed through to

the BIA’s consideration of her claim under the [CAT]”); see also Guo v. Gonzales, 463

F.3d 109, 114 (2d Cir. 2006) (“A CAT claim cannot be denied solely on the basis of an

adverse credibility finding since a CAT claim may be established using different evidence

and theories than those used for asylum claims.”).

                           C. Changed Personal Circumstances

       The BIA did not address Zhou’s contention that she is permitted pursuant to 8

U.S.C. § 1158(a)(2)(D) to bring a successive asylum application based on changed

personal circumstances in connection with her motion to reopen. Because we hold that the

BIA abused its discretion in denying Zhou’s untimely motion to reopen the removal

proceedings, as discussed supra, the BIA may find it appropriate to consider Zhou’s

successive asylum application based on her changed personal circumstances if it

concludes that her motion to reopen based on changed country circumstances should be




       3
        “[J]udicial review of an agency’s decision is limited to the rationale that the
agency provides.” Konan v. Att’y Gen., 432 F.3d 497, 501 (3d Cir. 2005). In rejecting
Zhou’s motion to reopen, the BIA focused on Zhou’s failure to establish changed country
conditions and did not consider whether Zhou established a prima facie claim for relief
under the CAT. Accordingly, this Court cannot consider in the first instance whether
Zhou established a prima facie claim for relief under CAT. See Konan, 432 F.3d at 501
(“A reviewing court is powerless to decide in the first instance issues that an agency does
not reach.”).

                                            10
granted.4

       For the foregoing reasons, we will grant the petition for review and remand the

matter to the BIA for further proceedings consistent with this opinion.




       4
        We note that the BIA recently ruled that an alien unable to prevail on a motion to
reopen is barred from filing a successive asylum application under 8 U.S.C. §
1158(a)(2)(D). In re C-W-L-, 24 I&N Dec. 346, 350 (BIA 2007).

                                            11
