                                                                    NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                        No. 13-4504
                                       _____________

                                    JIN LONG ZHANG,
                                            Petitioner

                                              v.

               ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                  Respondent
                             _____________

                              On Petition for Review of an Order
                             of the Board of Immigration Appeals
                                 (Agency No. A078-712-730)
                            Immigration Judge: Donald V. Ferlise

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     October 27, 2014

    Before: McKEE, Chief Judge, GREENAWAY, JR. and KRAUSE, Circuit Judges.

                                (Opinion filed: April 2, 2015)

                                         _________

                                         OPINION*
                                         _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
McKEE, Chief Judge.

       Petitioner Jin Long Zhang filed a petition for review of the October 28, 2013 decision

of the Board of Immigration Appeals denying his motion to reopen as untimely. For the

reasons that follow, we will deny the petition for review.

                                              I.

       Zhang is a native and citizen of China who first entered the United States in 2000.

On January 9, 2001, Zhang was placed in removal proceedings and charged as an alien

unlawfully present in the United States under 8 U.S.C. § 1182(a)(6)(A)(i). On January 4,

2002, Immigration Judge Ferlise denied Zhang’s request for asylum, withholding of

removal, and relief under the CAT.1 This initial request was based on a claim of persecution

under China’s coercive population control policies. On September 16, 2003, the BIA

partially affirmed the decision of the Immigration Judge.2

       In August 2013, Zhang filed a motion to reopen seeking to reapply for asylum,

withholding of removal, and CAT relief. The basis for this motion was a claim of changed

1
 The Immigration Judge, Donald V. Ferlise, also found that Zhang filed a frivolous application for
asylum. (J.A. at 19.) As we note below, the BIA disagreed with that finding.
2
  The BIA found that the Immigration Judge “correctly determined that [Zhang]’s asylum
application [was] time barred under the regulations and that none of the exceptions applie[d].”
(J.A. at 16.) However, the BIA also stated that it “d[id] not find [Zhang] filed a frivolous
application for asylum as stated by the Immigration Judge.” Id. This is not, by a long stretch, the
first time that the BIA or this Court has concluded that Judge Ferlise’s finding of a frivolous
petition was groundless. Nor is he any stranger to criticism from this Court. See Cham v. Att’y
Gen., 445 F.3d 683, 691–94 (3d Cir. 2006); Shah v. Att’y Gen., 446 F.3d 429, 434–37 (3d Cir.
2006); Sukwanputra v. Gonzales, 434 F.3d 627, 637–38 (3d Cir. 2006); Fiadjoe v. Att’y Gen., 411
F.3d 135, 154–58 (3d Cir. 2005). These cases are only some of the precedential opinions that have
criticized Ferlise. We need not also cite the not precedential opinions where we have been troubled
by his handling of cases before him or his proclivity for declaring that asylum claims are
“frivolous.”

                                                   2
country conditions in China and Zhang’s fear of persecution based on his being a practicing

Catholic. On October 28, 2013, the BIA denied the motion, declaring it untimely. This

petition for review followed.

                                             II.

      We have jurisdiction pursuant to 8 U.S.C. § 1252 to review the Board’s decision

denying the motion to reopen. Where the BIA issues a decision on the merits, we review

the BIA’s decision and not the Immigration Judge’s decision. Chavarria v. Gonzalez, 446

F.3d 508, 515 (3d Cir. 2006) (citing Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)).3

      Where the BIA concludes that a petitioner has not made a prima facie showing for a

motion to reopen proceedings, we review the BIA’s findings of fact under the substantial

evidence standard. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Under the

substantial evidence standard, we must uphold the BIA’s factual findings “unless the

evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242

F.3d 477, 483–84 (3d Cir. 2001) (citation omitted). Although “adverse credibility

determinations cannot be based on speculation or conjecture, such a finding will be afforded

substantial deference” where the BIA provides “specific cogent reasons” grounded in the




3
 However, to the extent that the BIA substantially relied on the Immigration Judge’s adverse
credibility determination, we have jurisdiction to review both opinions. Xie v. Ashcroft, 359 F.3d
239, 242 (3d Cir. 2004).


                                                   3
record to support those determinations. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d

Cir. 2003).4

       We review the ultimate denial of a motion to reopen for abuse of discretion. Pllumi

v. Att’y Gen., 642 F.3d 155, 158 (3d Cir. 2011). The BIA abuses its discretion only where it

acts in a manner that is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447

F.3d 241, 251 (3d Cir. 2006) (quoting Sevoian, 290 F.3d at 174) (internal quotation marks

omitted).

                                              III.

       The BIA denied Zhang’s motion as untimely. A motion to reopen ordinarily must be

filed with the BIA “within 90 days of the date of entry of a final administrative order of

removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). However, an exception exists and the time

limitation does not apply where the motion to reopen is based on “changed country

conditions arising in the country of nationality . . . 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). The question of whether there is sufficient evidence of

changed country conditions is a threshold issue. Shardar v. Att’y Gen., 503 F.3d 308, 312

(3d Cir. 2007). Accordingly, Zhang must produce evidence showing a change in country

conditions to show that the motion to reopen is timely and may be argued. Id. If this

threshold is established, we can then inquire into whether the evidence makes out a prima

facie case for asylum. Id.

4
 “Adverse credibility determinations may be based on ‘inconsistent statements, contradictory
evidence, and inherently improbable testimony.’” Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.
2005) (quoting Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)).

                                                     4
       In support of Zhang’s contention that changed country conditions justify his motion

to reopen, Zhang submitted the following for the BIA’s consideration:

           The U.S. State Department’s 2012 International Religious Freedom Report for
            China (“Religious Freedom Report”);

           Recent news articles describing conditions in China for Christians and
            Catholics from Voice of America, Fox News, and Gateway News;

           Letters from Zhang’s wife and a neighbor in China; and

           A certification describing Zhang’s history with the Fuzhou Catholic
            Archdioceses of Fujian Province (“Fujian Province Certificate”).

       As to the Religious Freedom Report, the BIA acknowledged Zhang’s evidence of

“detention of some leaders of underground, or ‘house,’ churches and harassment of church

members.” (J.A. at 11.) However, the BIA ultimately ruled against Zhang because it

concluded that he had not established that “the arrest of some leaders of underground

churches and harassment of church members demonstrates that he will likely suffer

mistreatment amounting to persecution upon his return to China based on his practice of

Christianity as a Catholic.” (J.A. at 11.)

       The BIA was further not convinced by the letters from Zhang’s wife and neighbor

and the Fujian Province Certificate because they “[were] unsworn statements that

appear[ed] . . . created for the purpose of litigation and [were] from interested witnesses

who [were] not subject to cross-examination.” (J.A. at 12.) According to the BIA, the

documents were from persons “of essentially unknown reliability and, given [Zhang]’s

previous lack of candor, . . . they have [not] been shown to be of sufficient evidentiary

worth to support reopening these proceedings.” (J.A. at 12.)



                                                  5
         Although we are not without some reservations, as we note below, the BIA’s factual

findings are entitled to substantial deference. Accordingly, we agree that the motion to

reopen was correctly denied.

         We have stated that substantial reliance on State Department reports is justified and

that such reports are sometimes the best resource for determining country conditions.

Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003) (citing Lal v. INS, 255 F.3d 998,

1023 (9th Cir. 2001)). However, we find the BIA’s analysis of the Religious Freedom

Report troublesome, as portions of the report that seem to indicate changed country

conditions appear not to have been considered by the BIA. For instance, the BIA failed to

address a portion of the Religious Freedom Report that indicates that religious adherents

have been “harassed, detained, arrested, or sentenced to prison . . . for activities . . . related

to their religious beliefs and practice.” (A.R. 268–69.) This statement, among others,

appears to directly relate to and support Zhang’s claim of changed country conditions in

China.

         However, the failure to specifically cite this portion and other pertinent portions of

the Religious Freedom Report does not amount to an abuse of discretion. “The BIA must

consider the evidence presented to it, but it need not expressly parse each piece of evidence

submitted in its opinion.” Zhao v. Att’y Gen., 386 F. App’x 37, 39 (3d Cir. 2010). This case

is similar to Kayembe. There, the petitioner claimed that the BIA “failed to consider the

record as a whole.” Kayembe, 334 F.3d at 235. While the BIA cited portions of the country

report, the report contained additional data indicative of changed country conditions that

was not considered by the BIA. Id. Nevertheless, in Kayembe, we explained that “[j]ust


                                                     6
because the State Department report cuts both ways [ ] does not mean that it does not

constitute substantial evidence.” Id. at 236. While the additional information provided in

the Religious Freedom Report does appear to support a contrary conclusion, it does not

compel a contrary conclusion as it must if Zhang is to prevail under the substantial evidence

standard.

       The analysis the BIA engaged in to discredit the letters and the Fujian Province

Certificate is also troublesome. As previously noted, the BIA referenced Zhang’s “previous

lack of candor” in determining the evidentiary worth of these letters and the Fujian Province

Certificate. (J.A. at 12.) However, we have held that reliance on prior adverse credibility

determinations is improper where “the basis for the [ ] credibility assessment [is] utterly

unrelated to [the] later claim.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004); cf. Lin v.

Att’y Gen., 700 F.3d 683, 688 n.3 (3d Cir. 2012) (permitting reliance on prior adverse

credibility determinations where the motion to reopen is based “on the same underlying

basis for asylum”). As Zhang’s initial basis for asylum (China’s family planning policy) is

unrelated to the basis for the motion to reopen (religious persecution), such previous adverse

credibility determinations were improperly considered. Nevertheless, consideration of the

evidence without reference to any previous lack of candor on the part of Zhang still does not

compel a contrary conclusion as to the worth of the evidence determined by the BIA.

       The BIA also did not consider the news articles provided by Zhang which

demonstrate the worsening conditions for Catholics in China. The BIA must “meaningfully

consider[ ] the evidence and arguments [the alien] present[s].” Zhu v. Att’y Gen., 744 F.3d

268, 272 (3d Cir. 2014) (citing Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir. 2008)).


                                                  7
“This does not mean that the BIA is required to expressly parse each point or discuss each

piece of evidence presented, but it may not ignore evidence favorable to the alien.” Id.

(quoting Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010)) (internal quotations and

citation omitted).

       The news articles provided undoubtedly support Zhang’s argument that the

conditions in China have changed such that a practicing Catholic would fear persecution.5

However, the BIA did not appear to consider these news articles at all, and, if they were

considered, there was no explanation provided for why they were rejected. This lack of

consideration and failure to explain why certain evidence was rejected has previously been

grounds for remanding to the BIA to consider such evidence and determine its authenticity,

relevance, and weight. Zhu, 744 F.3d at 275. However, this lack of consideration is not

grounds for remand here.

       Despite the reservations we have expressed, in the final analysis, it is clear that the

BIA did not abuse its discretion in denying Zhang’s request to reopen. In doing so, the BIA

quite properly noted inconsistencies in Zhang’s statements that caused it to appropriately

question Zhang’s assertion that he is a practicing Catholic. The BIA explained: “[h]e asserts

that he has been a practicing Catholic for almost 30 years, both in China and in the United

States, but in his asylum application filed in 2000, [Zhang] claimed that he was not a


5
  As noted in Zhang’s brief, the Voice of America article dated April 22, 2013 indicated “that the
situation for religious freedom in China continues to worsen.” The Fox News article dated
February 21, 2013 states that “there have been new tactics of persecution . . . to eradicate house
churches.” The Gateway News article dated March 7, 2013 indicates that “China’s crackdown
against its thriving home church movement is surging.”


                                                   8
member of any religion.” (J.A. at 10.) The BIA also noted that “his household registration

booklet has a blank space for his religion.” Id. These inconsistencies seriously undermine

Zhang’s claim of abuse of discretion and support the BIA’s denial of the motion to reopen.

For any findings of changed country conditions to be material, the BIA had to find that

Zhang is a practicing Catholic, as he claims. If Zhang is not a practicing Catholic and does

not follow the Christian faith, whether or not circumstances have changed in China for

practicing Christians has no bearing on his claim of asylum based on religious persecution.

       While the inconsistencies relating to Zhang’s faith do not appear to be the BIA’s

principal reason for denial of the motion to reopen, they are, by themselves, sufficient to

defeat his claim of an abuse of discretion in refusing to reopen his claim for asylum.

                                                 IV.

       For the reasons set forth above, we agree that Zhang has not shown that his untimely

motion to reopen should be considered because of changed country conditions and we

conclude that the BIA did not abuse its discretion in concluding that the attempt to reopen

was untimely under 8 U.S.C. § 1229a(c)(7)(C).




                                                  9
