Le Bin v. Holder, Jr.

Filing 920101014

Opinion

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United States Court of Appeals
For the First Circuit

No. 10-1042

LE BIN ZHU,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDEROF THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

    Michael Brown was on brief for petitioner.
    Tim Ramnitz, Attorney, Office of Immigration Litigation, Tony
West, Assistant Attorney General, Civil Division, and Jennifer
Levings, Senior Litigation Counsel, were on brief for respondent.

 

October 14, 2010

 

         LYNCH, Chief Judge. Petitioner Le Bin Zhu, a native and
citizen of China, seeks review of a Board of Immigration Appeals
(BIA) decision denying his motion to reopen removal proceedings
based on a claim of changed country circumstances. We deny his
petition.
I.
         Zhu entered the United States at the Miami International
Airport on June 21, 2001. As he did not possess proper entry
documents, he was interviewed by an officer of Immigration and
Nationality Service and detained. In a credible fear interview, he
stated that he came to the United States because his family had
beaten him and expelled him from their house after he converted
from Buddhism to Christianity. An asylum officer found his fear
credible and referred his application to an Immigration Judge (IJ).
         On June 25, 2001, Zhu was served with a Notice to Appear,
charging him with removability and ordering him to appear before an
IJ at a date to be determined. He was then paroled into the United
States, after which he moved to Boston. Zhu claims that within a
month he hired an attorney to handle his case. He claims that this
attorney told him that in order to file for political asylum, he
first needed to file a motion to transfer venue from Miami to
Boston, and that this could not be done until the hearing in Miami
had been scheduled. Approximately two years later, on July 8,
2003, Zhu was issued notice that his hearing had been scheduled at
the Miami Immigration Court. On July 21, Zhu's counsel filed a
motion to transfer venue to Boston, which was granted.
         On September 16, 2003, Zhu's counsel appeared before an
IJ in Boston, stating that Zhu intended to file an application for
asylum and requesting a continuance. The IJ granted the
continuance until March 23, 2004, and requested that Zhu's counsel
submit a brief on whether any asylum application would be time
barred. Zhu claims that ten days before his hearing, his
counsel--who had failed to submit an asylum application or the
requested brief--informed Zhu that he would be unable to continue
representing him. At the hearing, Zhu appeared with new counsel.
He conceded removability and filed an application for asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT). This was almost three years after Zhu entered the
country.
         The IJ held a hearing on the merits on July 17, 2006. We
briefly summarize Zhu's testimony, which discussed two asserted
grounds for asylum: his new practice of Falun Gong, and his
Christianity.
         Zhu testified that he began practicing Falun Gong shortly
after arriving in the United States, in October 2001, and that he
practiced every two or three days. He stated that his
predominantly Buddhist village would not allow him to return
because of his practice, and that he feared returning to China
because he had read a newspaper reporting that China persecutes
those who practice Falun Gong.
         Zhu testified that he converted from Buddhism to
Christianity when he was about 18 years old and that he started
attending a Protestant Church in China in 1995. He stated that he
could not return to China, as neither his village nor his family
would accept him given that he associated and prayed with
Christians. Zhu explained that although he had not practiced
Christianity since arriving in the United States, he would resume
his practice if he returned to China where he had Christian
friends. However, when Zhu was asked what it means to be a
Christian, he did not provide an answer.
         At the hearing, Zhu was also asked to explain
inconsistencies in his statements. He was asked why he had told
the asylum officer during his credible fear interview that he
converted to Christianity in 2000, not 1995. Zhu answered that it
was not until approximately 2000 that he learned more about
Christianity and its terminology. Zhu was asked why he had told
the immigration official who interviewed him on his arrival at the
Miami airport that he came to the United States to look for a job.
He testified, improbably, that this is what the snakehead who
helped him leave China told him to say. Zhu was asked whether
someone also advised him on what answers to give in his IJ hearing.
He said no.
         In an oral decision, the IJ denied Zhu's petition for
asylum, withholding of removal, and protection under the CAT. This
decision was based on two independent grounds.
         First, the IJ found that Zhu's asylum application was
pretermitted on the grounds that Zhu neither filed within one year
of arrival nor established an exception to this statutory
requirement. The IJ found that Zhu's argument for an exception--that the attorney he had hired to file an application in 2001 had
misdirected him about the proper process--was vague and unsupported
by the record.
         Second, the IJ found that even if the application was not
time barred, it failed on the merits. The IJ found that being
disowned by one's family does not meet the statutory criteria for
past persecution. The IJ also found that Zhu did not demonstrate
a credible, well-founded fear of future persecution. The IJ found
that Zhu's statements about his Christian faith were inconsistent
and lacked supporting documentation, and that his statements about
his practice of Falun Gong were devoid of any specificity and
unsupported by materials demonstrating that he would be sanctioned
for his type of practice. In addition, the IJ found that Zhu's
long delay in filing for asylum indicated that he did not actually
fear future persecution.
         The IJ also found that Zhu did not provide sufficient
evidence to support a claim for withholding of removal or relief
under the CAT.
         The BIA affirmed, finding that Zhu failed to provide an
adequate explanation for why he had not timely filed for asylum,
that his testimony was not credible, and that, credibility
notwithstanding, he failed to establish past persecution or a
well-founded fear of future persecution. The BIA also found that
Zhu failed to meet the burden for withholding of removal and relief
under the CAT. Zhu did not seek review of the BIA's decision and
it became final. That decision is not before us.
         After more than a year had passed, however, Zhu filed a
motion to reopen with the BIA. While a motion to reopen must
normally be filed within ninety days, Zhu argued that his case
qualified for two exceptions to this rule--equitable tolling based
on ineffective assistance of counsel, and a statutory exception
based on changed country conditions.
         On equitable tolling, Zhu argued that ineffective counsel
was responsible for the untimeliness of his underlying application
for asylum. He did not specify how this explained or justified the
untimeliness of his motion to reopen.
         On changed country conditions, Zhu argued that events
that had transpired since his original application increased his
individualized risk of persecution in China. He alleged that his
village government had learned of his application for asylum and
his involvement with Falun Gong in the United States, and that it
had served his mother with a notice asking her to inform Zhu that
he had committed treason and needed to return to China and
surrender himself for severe punishment. In support of this claim,
Zhu provided an unauthenticated copy of the notice and what
purported to be an affidavit from his mother; he argued that the
requirement, under 8 C.F.R. § 1287.6, that the notice be
authenticated should be waived. In addition, Zhu provided evidence
of his recent marriage to a Chinese citizen in the United States
and the birth of their daughter, stating that they wished to have
more children. Although Zhu did not say so expressly, the BIA took
this to be a claim that he would therefore run afoul of China's
family planning policies.
         On December 12, 2009, the BIA denied Zhu's motion to
reopen. The BIA rejected Zhu's claim for equitable tolling based
on ineffective counsel, finding a lack of due diligence: "Although
[Zhu] was aware of the alleged ineffective assistance since July
2006, at the latest, [he] did not file a complaint or this motion
until June 2009."
         The BIA also rejected Zhu's argument that changed
conditions in China materially affected his case. As to Zhu's
claim regarding his new family, the BIA found that Zhu did not
provide evidence of changes in China's family planning policies.
As to Zhu's claim regarding his practice of Falun Gong, the BIA
found that in light of the IJ's adverse credibility finding, the
unauthenticated village committee document and "the letter
allegedly sent by [his] mother" failed to satisfy the "heavy
burden" of establishing material changed circumstances.
         On January 6, 2010, Zhu filed a timely petition for
review of the BIA's refusal to reopen his case on the basis of
changed country conditions. He argues generally that the BIA's
decision was "against the weight of the evidence" and "in error as
a matter of law." He also argues, more specifically, that the
BIA's decision was based on the fact that the village committee
notice was not authenticated--and that this was an abuse of
discretion. Zhu does not petition for review of the BIA's denial
of his claim for equitable tolling or his claim of changed
conditions based on his new family, thereby waiving these claims.
II.
         Motions to reopen deportation proceedings are disfavored
due to the "strong public interest in bringing litigation to a
close . . . promptly." Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st
Cir. 2003) (alteration in original) (quoting INS v. Abudu, 485 U.S.
94, 107 (1988)) (internal quotation marks omitted). "Consequently,
the BIA enjoys a broad measure of latitude in passing upon such
motions." Lemus v. Gonzales, 489 F.3d 399, 401 (1st Cir. 2007).
We review the BIA's decision for abuse of discretion, upholding the
decision "unless the complaining party can show that the BIA
committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational way." Raza v. Gonzales, 484
F.3d 125, 127 (1st Cir. 2007).
         The requirement that motions to reopen must be filed
within ninety days of the final administrative decision, 8 C.F.R.
§ 1003.2(c)(2), may be relaxed if a petitioner "makes a convincing
demonstration of changed conditions in his homeland," Raza, 484
F.3d at 127. The motion must state new facts that will be proven
at a hearing to be held if the motion is granted. 8 C.F.R.
§ 1003.2(c)(1). This new evidence must be material, and it must
have been unavailable and undiscoverable at the former hearing. 8
C.F.R. § 1003.2(c)(3)(ii). In addition, the evidence submitted
"must, at a bare minimum, establish a prima facie case sufficient
to ground a claim of eligibility for the underlying substantive
relief." Raza, 484 F.3d at 128.
         Here, the BIA did not act in an arbitrary and capricious
manner in denying Zhu's motion to reopen. Rather, it carefully
considered all of the evidence on which Zhu rested his case and
provided a clear explanation of its reasoning in finding the
evidence insufficient to support his motion to reopen.
         The BIA was not, as Zhu suggests, compelled to afford
full evidentiary weight to the unauthenticated village committee
notice that he submitted. It is well within the BIA's discretion
to find that lack of authentication undermines the evidentiary
value of a document. See Tawadrous v. Holder, 565 F.3d 35, 39 n.2
(1st Cir. 2009) (agreeing with the BIA that a document was owed
"little or no weight due to its nature as an unauthenticated
photocopy"). This is especially the case when, as here, the BIA's
decision to do so is supported by an adverse credibility finding.
See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-147 (2d Cir. 2007)
(finding no abuse of discretion in the BIA's refusal to credit an
unauthenticated notice offered by an applicant in support of his
motion to reopen where he had been found not credible in the
underlying proceedings).
         The BIA was also within its discretion in finding that
"the letter allegedly sent by [Zhu's] mother" did not satisfy the
"heavy burden" of establishing material changed circumstances. Cf.
Zheng v. Mukasey, 546 F.3d 70, 72 (1st Cir. 2008) ("Absent
substantiation, self serving affidavits from petitioner and her
immediate family are of limited evidentiary value.").
         Moreover, even if the BIA were required to give full
evidentiary weight to the letter from Zhu's mother and the village
committee notice, this evidence would not compel the BIA to
conclude that Zhu had made out a prima facie case for asylum.
Because Zhu never established a credible claim for asylum based on
his practice of Falun Gong, the BIA could reasonably find that the
alleged changes in country conditions were immaterial. Cf.
Tawadrous, 565 F.3d at 39 ("[E]ven if we were to . . . find that
the letter from [petitioner's] father was previously unavailable,
we conclude that this evidence merely reiterates [his] hearing
testimony without rehabilitating his failed credibility or
documenting materially changed country conditions."); Lemus, 489
F.3d at 401 ("To cinch matters, the newly proffered information
does nothing to rehabilitate the petitioner's failed credibility --
and . . . the final administrative decision in this case hinged
mainly on an adverse credibility determination.").
         Zhu's argument that the BIA made an error of law in
denying his motion is likewise without merit. He argues that
"[b]ecause the Board essentially failed to account whether the new
facts asserted by Zhu are ever materially relevant to his claim for
asylum . . . the finding on Zhu's failure to show changed country
conditions is erroneous as a matter of law." However, the BIA
expressly discussed the materiality of the evidence, explaining
that "the newly submitted evidence is inadequate to show changed
circumstances or conditions in China which materially affect
[Zhu's] eligibility" for the relief he requested.
         The petition is denied.
         So ordered.