Hua Chen v. Holder

358 F. App'x 705
Court of Appeals for the Seventh Circuit·Decided December 23, 2009·No. No. 09-1984·Published·Cited by 1 cases

Opinion

ORDER

Hua Chen, a citizen of the People’s Republic of China, petitions for review of an order of the Board of Immigration Appeals denying his motion to reopen deportation proceedings. We deny the petition to the extent that we have subject-matter jurisdiction.

Chen entered the United States without valid entry documents in 1990. In 1993 he applied for asylum, withholding of deportation, and protection under the Convention Against Torture, claiming that he had a well-founded fear of persecution if he returned to China because he participated in pro-democracy demonstrations in 1989 and then illegally fled the country. After numerous continuances and a change of venue, Chen’s application was finally adjudicated in 2000. The immigration judge denied all relief and issued a deportation order. The Board of Immigration Appeals affirmed the decision in 2002, but Chen remained in the United States.

In 2008 Chen filed a motion through counsel asking the Board to reopen his deportation proceedings in light of what he characterizes as “new and previously unavailable” evidence of changed country conditions. See 8 U.S.C. [707] § 1229a(c)(7)(C)(ii). At the time he filed this motion, Chen was in removal proceedings under a different name that he apparently gave to police in Chicago after a traffic stop. In the motion Chen alleges that his girlfriend gave birth to their daughter in 1999 in violation of China’s family-planning policy, and that since 2007 he has practiced Falun Gong and participated in protests against the Chinese government. Chen also maintains that local officials in his hometown in Fujian Province are now aware of his activities in America and want him to return to China so that he can be punished.

The materials Chen submitted with his motion include a child’s birth certificate, photographs of himself participating in Falun Gong activities, and what purports to be a notice from the village committee in his hometown ordering his parents to urge him to return to China to receive punishment for fathering a child out of wedlock, practicing Falun Gong, and applying for asylum. The Board concluded that Chen had not met his burden of establishing materially changed country conditions as would be necessary to avoid the 90-day deadline that ordinarily applies to motions to reopen. See 8 U.S.C. § 1229a(e)(7)(C)(i), (ii). The Board noted that the father identified in the child’s birth certificate does not share Chen’s name or date of birth (or the name Chen gave when he was detained in Chicago); the Board also observed that Chen did not mention the child in 2000 when testifying before the immigration judge. In addition, the Board declined to consider the notice from the village committee because it was not authenticated as required under 8 C.F.R. § 1287.6. The Board distinguished Lin v. Mukasey, 532 F.3d 596 (7th Cir.2008), where we relied on the petitioner’s submission of a letter from her hometown village committee — the authenticity of which the government did not doubt — to hold that she had established changed country conditions. In contrast with Lin, the Board explained, the Department of Homeland Security had not conceded the authenticity of Chen’s evidence.

In his petition for review, Chen challenges the Board’s conclusion that he did not demonstrate a material change in country conditions. This ruling is the kind of determination that we lack jurisdiction to review except as to claims that the ruling rests on a constitutional or legal error. See Sharashidze v. Mukasey, 542 F.3d 1177, 1179 (7th Cir.2008); Kucana v. Mukasey, 533 F.3d 534, 538 (7th Cir.2008), cert. granted, — U.S. ---, 129 S.Ct. 2075, 173 L.Ed.2d 1132 (2009) (argued Nov. 10, 2009). Chen maintains that the Board abused its discretion by “failing to consider significant evidence in the record.”

Chen principally argues that the Board erroneously refused to consider the village committee notice because he failed to authenticate it as required by 8 C.F.R. § 1287.6. This is a question of law that we may entertain. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008), cert. denied, --- U.S. ---, 129 S.Ct. 737, 172 L.Ed.2d 728 (2008). Lack of compliance with § 1287.6 is not a valid basis for immigration courts to disregard relevant evidence unless there are additional reasons to doubt its authenticity. Castilho de Oliveira v. Holder, 564 F.3d 892, 897 (7th Cir.2009); see also Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir.2006) (explaining that failure to authenticate evidence “does not amount to presumptive proof of falsity”); Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir.2003) (noting that compliance with regulation is “not the only way” to authenticate evidence introduced in immigration courts). The Board did not cite the discrepancies in Chen’s other evidence as a basis for doubting the authenticity of the notice, so arguably the Board should not have disregarded it.

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