                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 12-1654

                              GI KUAN TSAI,

                               Petitioner,

                                     v.

              ERIC H. HOLDER, JR., Attorney General,

                               Respondent.




              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS



                                  Before

                        Lynch, Chief Judge,
                      Howard, Circuit Judge,
                   and Casper,* District Judge.


     Cora J. Chang on brief for petitioner.
     Gregory M. Kelch, Trial Attorney, United States Department of
Justice, Office of Immigration Litigation, Linda S. Wernery,
Assistant Director, Civil Division, and Stuart F. Delery, Acting
Assistant Attorney General, Civil Division, on brief for
respondent.


                              March 6, 2013



     *
          Of the District of Massachusetts, sitting by designation.
            CASPER, District Judge.          Petitioner Gi Kuan Tsai seeks

review of the decision by the Board of Immigration Appeals ("BIA")

denying his untimely motion to reopen removal proceedings on the

basis that he failed to meet the exception to the ninety-day filing

requirement for changed country conditions material to the claim

for asylum.       Finding no abuse of discretion, we deny Tsai's

petition for review.

                          I.    Facts & Background

            Tsai is a native and citizen of China who entered the

United States at Los Angeles International Airport on May 8, 2000

using a counterfeit passport and counterfeit non-immigrant visa,

both   in   the   name   of    Zhao   Jian   Min.     Tsai   was   detained   by

immigration officials and on May 9, he gave a sworn statement to an

Immigration and Naturalization Service officer.               When asked the

purpose of his visit, Tsai replied, "I come here to make a living.

The American policy is more human and they respect human rights."

Tsai explained that he had opened a restaurant in China, but did

not want to pay the "many taxes."             Tsai also mentioned that he

wanted to have more children, but did not mention his wife being

forced to have an IUD implanted or being forced to have an

abortion. At a subsequent interview with an immigration officer on

May 23, 2000, Tsai said that he had only one child because Chinese

officials made his wife get an abortion when she got pregnant again

in violation of the one child policy.               He added that he was not


                                       -2-
asked about his wife's abortion during the interview on May 9.

Tsai also said he was afraid to return to China because he would

like to have more children and would be apprehended, jailed and

fined for fleeing China illegally.

          On May 7, 2001, Tsai filed an "Application for Asylum and

for Withholding of Removal." In the application, he explained that

after his wife gave birth to their son, the Chinese authorities

forced his wife to have an IUD implanted.   According to Tsai, his

wife became pregnant despite the presence of the IUD and Chinese

officials forced her to have an abortion.

          On January 10, 2003, Tsai appeared before an Immigration

Judge ("IJ") and testified about his wife's forced abortion and

closing his eatery because he refused to pay the taxes.     The IJ

denied Tsai's application for asylum, withholding of removal and

protection under the Convention Against Torture ("CAT").    The IJ

noted that the record did not contain any evidence apart from

Tsai's own testimony concerning his wife's abortion or his tax

debt.   The IJ found that Tsai's testimony "cannot be given any

credence" because (1) he "consistently lied" by using a false name,

a fraudulent passport and a fraudulent non-immigrant visa upon

arrival in the United States; and (2) he failed to mention his

wife's abortion when questioned about the reason he came to the

United States during his initial sworn statement during the May 9

interview upon arrival in the U.S.   The IJ further noted that Tsai


                               -3-
had failed to provide documentary evidence of his wife's abortion

and IUD and his tax issues.         The IJ found that Tsai could have

obtained these materials because he was able to proffer some

documents    from    China   such   as    his   wife's   and    son's      birth

certificates.       Based on Tsai's lack of credibility and lack of

corroborating evidence supporting his claims, the IJ denied Tsai's

application.

            On appeal, the BIA affirmed the IJ's decision.                The BIA

noted that the IJ's credibility analysis was "minimal," but upon

its own review of the record the BIA declined to set aside the IJ's

decision. The BIA based its decision on the material inconsistency

between Tsai's sworn statement on May 9 and his asylum application

and later testimony. Given this inconsistency, "[Tsai's] testimony

alone is not sufficient to sustain the burden of proof."                  The BIA

considered that Tsai failed to offer corroboration and "did not

convincingly explain the absence of corroboration of his wife's

alleged hospitalization, abortion or the insertion of an IUD,"

which were "reasonably available . . ., especially in light of the

other documents he received from China."

            Tsai    petitioned   for     judicial   review     of   the    BIA's

decision.    See Tai v. Gonzales, 423 F.3d 1 (1st Cir. 2005).               This

Court denied Tsai's petition and held that the BIA's adverse

credibility finding was supported by substantial evidence because

it was based on Tsai's initial failure to mention his wife's


                                    -4-
contraception and abortion, which was a discrepancy that "went to

the heart of [Tsai's] claim."       Id. at 5.

            On September 14, 2011, many years after the IJ's 2003

decision and the BIA's 2004 decision, Tsai filed a motion to reopen

his removal proceedings. As required to excuse his failure to file

a motion to reopen within the ninety-day regulatory window, 8

C.F.R. § 1003.2(c)(3)(ii), Tsai argued that "his allegations of new

facts arising in China constitute changed country circumstances

that materially affect his eligibility for asylum."                 In support of

his motion, he offered:        (1) his own sworn affidavit; (2) unsworn

letters purporting to be from his wife, son and neighbor;(3)

unauthenticated hospital records; and (4) an April 2011 State

Department report on China.

            Tsai claimed in his affidavit that during a telephone

call with his wife in February 2011, he told her that United States

citizens enjoy "democracy, freedom and human rights," that the

Chinese government is "inhumane" and is the only government that

"forces" people to undergo abortions and sterilizations, and that

Chinese    citizens   should    oppose   the       "coercive   family      planning

policy."    Tsai claimed that his wife discussed these remarks with

their neighbors in China.       Tsai also claimed that in March 2011, he

sent his wife "many reports and articles" that "reveal the cruelty

of Chinese government to slaughter lives and persecute women under

the   coercive   family   policy   and     .   .    .   criticize    the    Chinese


                                     -5-
government to undermine human rights of Chinese people" and asked

her to distribute them to their neighbors.               According to Tsai, his

wife did so and was arrested, beaten and detained by the police in

April 2011 for these actions.

                 Tsai also provided written statements purporting to be

from       his   wife,   his    son   and    a    neighbor   along   with   English

translations of those documents.                  They were all dated July 15,

2011, written in support of Tsai's motion to reopen and contained

very similar (if not identical) language recounting the same

account of events Tsai made in his affidavit.1                 A prescription note

from       Changle   City      Hospital     indicated   that    Tsai's    wife   was

prescribed medication for a "[s]oft tissue contusion" on April 11,

2011.       Tsai also provided his wife's medical records from the

Medical Institution of Fuzhou City indicating that she experienced

symptoms "after [being] beaten by someone yesterday."                    Tsai's wife

explained in her letter that the hospital declined to provide



       1
          For example, Tsai's wife's letter said, "In March 2011,
after my husband collected some reports and articles to reveal the
cruelty of Chinese government on slaughtering lives by executing
coercive family planning policy and on persecuting many women and
to denounce Chinese government for violation of people's human
rights, he mailed these materials to our home in China."
Similarly, Tsai's son's letter explained that his father sent
"reports and articles [that] revealed the cruelty of Chinese
government to slaughter lives and persecute women under the
coercive family planning policy and to criticize [the] Chinese
government to undermine human rights of Chinese people." Tsai's
wife expressed that her "neighbors and I were shocked after we read
through these materials" and Tsai's neighbor also recounted that
"[w]e were shocked after reading those reports and articles."

                                            -6-
authentication of her medical records and prescription note.                 Tsai

did not provide any official documentation of his wife's arrest.

According to Tsai's wife, she went to the police station and asked

for official documentation of her arrest, but was ordered to go

home.

            On April 25, 2012, the BIA denied Tsai's motion to reopen

the removal proceedings.        The BIA considered Tsai's evidence and

found that it did not "satisfy the heavy burden of establishing

materially changed circumstances."                The BIA also stated that the

evidence    was   insufficient        with    regard    to     the   documentation

"allegedly issued by a hospital, which has not been authenticated

in   any   manner"   and   in   light        of   the   IJ's    previous   adverse

credibility determination. Tsai timely filed this petition seeking

review of the BIA's denial of his motion to reopen.

                                II.    Analysis

            We review the BIA's denial of a motion to reopen for

abuse of discretion, which means an error of law or exercise of

judgment in an arbitrary and capricious or irrational manner. Raza

v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).                  We will "uphold

the [BIA's] subsidiary findings of fact as long as they are

supported by substantial evidence," and review "embedded legal

conclusions de novo," and "judgment calls for abuse of discretion."

Vaz Dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir. 2010).                  Our review

"is highly deferential, focusing on the rationality of the decision


                                        -7-
to deny reconsideration and reopening, not on the merits per se, of

the underlying claim."        Abdullah v. Gonzales, 461 F.3d 92, 99 (1st

Cir. 2006).

              "Motions to reopen removal proceedings are disfavored as

contrary to 'the compelling public interests in finality and the

expeditious processing of proceedings.'"              Raza, 484 F.3d at 127

(quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005)).

"As a result, the BIA enjoys considerable latitude in deciding

whether to grant or deny such a motion," id., and a person seeking

to   reopen    such    proceedings    bears   a    "heavy    burden."     Ven   v.

Ashcroft, 386 F.3d 357, 361 (1st Cir. 2004) (quoting In re Coelho,

20 I. & N. Dec. 464, 472 (BIA 1992)) (internal quotation marks

omitted).

              "There   are   both    substantive    and     procedural   bars   to

reopening removal proceedings." Smith v. Holder, 627 F.3d 427, 433

(1st Cir. 2010). Procedurally, a petitioner is limited to a single

motion to reopen a removal proceeding, which must be submitted

within ninety days of the final administrative decision.                 8 C.F.R.

§    1003.2(c)(2).       However,     these   procedural       limitations      are

"relaxed" if a petitioner "makes a convincing demonstration of

changed conditions in his homeland."                Smith, 627 F.3d at 434

(quoting Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir. 2008))

(internal quotation marks omitted).               "The change in conditions

'must be material to the underlying substantive relief that the


                                       -8-
alien is seeking . . . and the evidence tendered in support thereof

must have been unavailable during the prior proceedings.'"                  Id.

(omission   in    original)   (quoting        Raza,   484   F.3d   at    127).

Substantively, the BIA may deny a petition if it determines that

the movant has failed to meet either of two requirements:                    (1)

establish a prima facie case for the underlying relief sought; and

(2) introduce previously unavailable, material evidence.                 Id. at

433.

            Tsai brought his motion to reopen more than ninety days

after the BIA's final administrative decision.              Because he missed

the ninety-day window, Tsai must demonstrate changed conditions in

China that are material to his application for asylum, withholding

of removal and CAT protection.               The BIA denied Tsai's motion

because the evidence he presented in support of his motion failed

to "satisfy the heavy burden of establishing materially changed

circumstances."     The heart of Tsai's challenge to the BIA's ruling

is his contention that the BIA failed to give adequate weight to

that evidence.

            Tsai argues that the BIA erred as a matter of law in

refusing to accord proper weight to the supporting documents and by

denying   his    motion   based   in   part    on   the   IJ's   prior   adverse

credibility finding.      Specifically, Tsai argues that the BIA erred

in considering that the hospital records were not "authenticated in

any matter" when rendering its decision and such alleged lack of


                                       -9-
authentication should not be detrimental to his motion to reopen.

Tsai asserts that "to the extent that he is facing the prospect of

harm and persecution in China, it is equally impractical for him to

personally have the Chinese government authenticate his wife's

hospital medical record" pursuant to 8 C.F.R. § 1287.6.              However,

in considering materials offered in support of a motion to reopen,

the "BIA has discretion to deem a document's lack of authentication

a telling factor weighing against its evidentiary value," Hang Chen

v. Holder, 675 F.3d 100, 107 (1st Cir. 2012), notwithstanding the

difficulty a Chinese citizen may have authenticating the record

pursuant to 8 C.F.R. § 1287.6.       See Xiu Xia Zheng v. Holder, No.

12-1325, 2013 WL 491965, at *3 (1st Cir. Feb. 11, 2013) (holding

that it was not an abuse of discretion for the BIA to discount the

evidentiary value of the Chinese petitioner's evidence where it

lacked   authentication   pursuant    to   8   C.F.R.    §   1287.6    or   an

alternative authentication method); cf. Yan v. Gonzales, 438 F.3d

1249, 1256 n.7 (10th Cir. 2006) (explaining that because the

"authentication   procedures   [described      in   8   C.F.R.   §    1287.6]

generally require attestation of documents by the very government

the alien is seeking to escape, courts generally do not view the

alien's failure to obtain authentication as requiring the rejection

of a document," but, the IJ may find this evidence to be of limited

evidentiary value).




                                 -10-
              Moreover, the BIA's decision did not solely rest on the

limited weight ascribed to an unauthenticated document, but also

relied upon consideration of an IJ's prior adverse credibility

finding      against   the    petitioner.       Giving     limited    weight    to

unauthenticated evidence where the petitioner's own credibility

remains at issue is an appropriate exercise of discretion.                See Le

Bin Zhu v. Holder, 622 F.3d 87, 92 (1st Cir. 2010) (noting that it

is   "well    within    the   BIA's    discretion    to   find   that   lack    of

authentication undermines the evidentiary value of a document" and

that "[t]his is especially the case when, as here, the BIA's

decision to do so is supported by an adverse credibility finding").

              Tsai further argues that it was error for the BIA to rely

on this lack of authentication because authenticity is a question

of fact and the BIA, as an appellate body, should not engage in

factfinding.      Although Tsai is correct that "the Board will not

engage in factfinding in the course of deciding appeals," 8 C.F.R.

§ 1003.1(d)(3)(iv), this case concerns a motion to reopen and not

an appeal of an IJ's decision.           Furthermore, as discussed above,

this   Court    has    repeatedly     held   that   the   BIA   may   assess   the

authenticity of a petitioner's evidence when deciding a motion to

reopen.      See, e.g., Zheng, 2013 WL 491965, at *3.

              The BIA was also within its discretion in finding that

Tsai's affidavit and the letters from Tsai's wife, son and neighbor

did not satisfy the "heavy burden" of establishing materially


                                       -11-
changed circumstances given that they were self-serving; i.e., each

was produced for the purpose of reopening Tsai's final order of

removal and written by the petitioner's family or a person close to

the petitioner.       See Le Bin Zhu, 622 F.3d at 92 (holding that the

BIA was within its discretion in finding that a letter allegedly

sent by the petitioner's mother did not establish material changed

circumstances); Zheng v. Mukasey, 546 F.3d 70, 72 (1st Cir. 2008)

(noting that "[a]bsent substantiation, self serving affidavits from

petitioner and her immediate family are of limited evidentiary

value").2

              Tsai also argues that the BIA should have granted his

motion   to    reopen   because   he    made   a     prima   facie    showing    of

eligibility     for   asylum.     However,     the    question   of    whether    a

petitioner has presented sufficient evidence of changed country

conditions to excuse the untimely filing of a motion to reopen is

distinct from the question of whether this evidence, along with the

evidence already in the record, shows that the petitioner has a

reasonable likelihood of prevailing on his asylum claim.                        See

Smith, 627 F.3d at 433.         The BIA did not abuse its discretion in



     2
          Tsai also argues that the BIA failed to evaluate whether
his alleged new facts are material. This argument is without merit
because the BIA considered the evidence upon which Tsai relied in
support of his motion and explained that it did "not find that the
evidence presented satisf[ied] the heavy burden of establishing
materially changed circumstances" and we have found that this
determination does not constitute an abuse of discretion.


                                       -12-
concluding that Tsai failed to make a convincing demonstration of

materially changed conditions in China, and thus Tsai did not make

the showing necessary to relax the procedural limitations such that

he could file an untimely motion to reopen.   Accordingly, the BIA

did not need to address the merits of Tsai's claim, that is,

whether or not he made a prima facie case for eligibility for

asylum.   See id. at 440 (treating the establishment of a change in

country conditions that would excuse the petitioner's late filing

and the showing of a prima facie case of eligibility for asylum as

discrete and sequential inquiries); Larngar v. Holder, 562 F.3d 71,

80 (1st Cir. 2009) (same).

                         III.   Conclusion

           For the foregoing reasons, Tsai’s petition for review is

denied.




                                -13-
