     Case: 11-60407     Document: 00511750018         Page: 1     Date Filed: 02/07/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 7, 2012
                                     No. 11-60407
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JISHENG XIAO,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A094 907 040


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Jisheng Xiao, a native and citizen of China, was ordered deported in 2008,
and his applications for asylum, withholding, and protection under the
Convention Against Torture (CAT) were denied. We denied his petition for
review, concluding that “Xiao offered no support for his assertion that he would
be forcibly sterilized upon returning to China.” Xiao v. Holder, 349 F. App’x 909,
910 (5th Cir. 2009). We stated that the State Department Country Profile in
evidence noted that the Family Planning Regulations of Fujian Province

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 11-60407

provided that “the penalty for not meeting the population and family planning
regulations is a social maintenance fee, not sterilization.” Id.
        Xiao filed a motion to reopen with the Board of Immigration Appeals
(BIA), accompanied by an application for asylum, withholding, and relief under
the CAT. Xiao asserted once again that he feared sterilization in China on
account of his two United States citizen children. The BIA denied Xiao’s motion
to reopen on May 23, 2011. The BIA noted that the motion was untimely
because it was not filed within 90 days of the administrative final order in his
case.    The BIA held that Xiao’s motion failed to demonstrate prima facie
eligibility for asylum because his key evidence—a letter from a village
committee—was unreliable and lacked authentication and a certification of
translation.
        In his petition for review, Xiao argues that the BIA abused its discretion
by failing to consider the evidence in the record which established that he has
a prima facie fear of persecution based on changed country conditions in China.
Xiao argues that the village certification is new and previously unavailable
evidence of changed country conditions in China material to his claim that he
fears persecution on account of his two U.S. born children. He argues that the
BIA abused its discretion in finding that the village certificate was unreliable
because it was unauthenticated. He contends that the BIA failed to consider
multiple factors in the record relevant to the authenticity and reliability of the
village certificate. He argues that because authentication of foreign documents
can be established by any recognized procedure, the BIA’s failure to explain why
the village certificate was not authenticated by other means requires remand.
He asserts that the village certification was individualized evidence which
showed that he had violated the family planning policy in his village and that
the violation subjected him to mandatory sterilization. Xiao also argues that the
BIA’s finding that the certificate was lacking a proper certificate of translation


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is not supported by the record and that the BIA failed to explain why the
evidence is unreliable because it was obtained for the purpose of the proceedings.
      We have jurisdiction to review the denial of an untimely motion to reopen
based on changed circumstances in the alien’s home country. Panjwani v.
Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). We review the denial of a motion
to reopen “under a highly deferential abuse-of-discretion standard,” upholding
the Board’s decision so long as it is not capricious, racially invidious, without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.         Manzano-Garcia v.
Gonzales, 413 F.3d 462, 469 (5th Cir. 2005). Motions to reopen must be “filed
within 90 days of the date of entry of a final administrative order of removal.”
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the filing periods
are not applicable if the motion to reopen is “based on 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.”
§ 1229a(c)(7)(C)(ii); § 1003.2(c)(3)(ii); Zhao v. Gonzales, 404 F.3d 295, 304 (5th
Cir. 2005).
      Section 287.6(b)(1) of Title 8 of the Code of Federal Regulations provides
that a foreign record “shall be evidenced by an official publication thereof, or by
a copy attested by an officer so authorized.” Xiao does not dispute that the
village certificate was not so authenticated. He seeks to establish the reliability
of the document by means of his own affidavit, in which he asserted that his
mother obtained the village certificate upon inquiry at the local authority. This
is not an assertion made upon his personal knowledge. According to the
authority cited by Xiao, Chen v. Attorney General of U.S., ___ F.3d ___, 2011 WL
923353 at * 4 (3d Cir. Mar. 18, 2011), the immigration judge and BIA properly
discounted the village committee notice as unauthenticated, noting that a proper


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means of alternate authentication would be an affidavit from the petitioner’s
mother as to how the document was obtained.
      The background evidence does not tend to support a finding that the
village committee letter is authentic. As noted in Matter of H-L-H & Z-Y-Z, 25
I & N Dec. 209, 214-15 (BIA 2010), according to the State Department’s 2007
Profile, which contained an October 13, 2006 letter from the Fujian Province
Population and Family Planning Commission, the Village Committees “are not
authorized to make any decisions pertaining to family planning issues, and that
a certificate issued by such a committee should be deemed ineffective.”
Regarding Xiao’s argument that the certificate of translation was merely
misplaced in the record and the BIA ignored it, assuming that is true, the lack
of authentication is sufficient in itself to discount the document, even with a
proper certificate of translation.
      The BIA did not abuse its discretion in determining that the village
certificate was unreliable due to lack of authentication and because it was
obtained for the purpose of these immigration proceedings. See Song Wang v.
Keisler, 505 F.3d 615, 622-23 (7th Cir. 2007); Matter of H-L-H & Z-Y-Z, 25 I &
N Dec. at 214-15. Thus, the BIA did not abuse its discretion in determining that
the evidence failed to establish a prima facie case of eligibility for asylum. See
In re S-Y-G, 24 I. & N. Dec. 247, 258-59 (BIA 2007), petition for review denied by
Shao v. Mukasey, 546 F.3d 138, 168-69, 172-73 (2d Cir. 2008) (holding that the
petitioner “had not adduced evidence that convincingly established a reasonable
possibility that she would face enforcement amounting to persecution” and that
“[b]ecause substantial evidence supports this determination, we identify no
abuse of discretion in the denial of Show Yung Guo’s motion to reopen.”).
      Xiao argues that the village certificate was new and previously
unavailable evidence of changed country conditions material to his claim that he
fears persecution on account of his two U.S. born children. Because the BIA


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found that Xiao had not demonstrated prima facie eligibility for asylum, it had
no need to decide whether Xiao had also presented material evidence of changed
country conditions. See Panjwani, 401 F.3d at 632 n.7. We need not address
Xiao’s argument regarding changed country conditions.
      Lastly, Xiao argues that the BIA failed to consider the 2008 and 2009
Annual Reports from the Congressional-Executive Commission on China, which
provided a more accurate account of conditions in China than the 2007 Profile.
Xiao states that he cited these reports extensively, although he admits that they
are not in the record. He contends that these reports are publicly available
documents issued by the Government of which the BIA may take administrative
notice.
      Even though the BIA may take administrative notice of such reports, Xiao
points to no regulation or court decision that requires the BIA to do so. The BIA
did not abuse its discretion in failing to indicate in its opinion whether or not it
had considered these reports, and to the extent that it may have failed to
consider them, in not taking administrative notice sua sponte of reports not in
evidence. See 8 C.F.R. § 1003.1(d)(3)(iv) (providing that BIA may not engage in
fact finding, but may take administrative notice of commonly known facts
including current events or contents of official documents); Meghani v. INS, 236
F.3d 843, 848 (7th Cir. 2001) (explaining that the BIA is not required sua sponte
to take administrative notice of new country reports).
      PETITION FOR REVIEW DENIED.




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