Ni v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: May 10, 2012
• Docket: 11-3252
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 11-3252 ____________

YAN YING NI, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent __________________________________

On a Petition For Review of an Order of the Board of Immigration Appeals (Agency No. A077-282-988) Immigration Judge: Donald Vincent Ferlise __________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) May 2, 2012

Before: FISHER, WEIS and BARRY, Circuit Judges

(Opinion filed: May 10, 2012) ____________

OPINION ____________

PER CURIAM.

Yan Ying Ni (“Ni”) petitions for review of the Board of Immigration Appeals’

final order of removal. For the reasons that follow, we will deny the petition for review.

1 Ni, a native and citizen of China, entered the United States without a valid entry

document on July 14, 1999. She sought asylum, claiming persecution on the basis of her

parents’ Christian religion. Her application for asylum, withholding of removal, and for

protection under the Convention Against Torture was denied by an Immigration Judge

after a merits hearing on May 27, 2005. The Board of Immigration Appeals adopted and

affirmed the IJ’s decision on December 15, 2006, except with respect to the IJ’s finding

that Ni’s application was frivolous. We denied Ni’s petition for review in Ni v. Att’y

Gen. of U.S., 293 Fed. Appx. 966 (3d Cir. 2008). Ni gave birth to two children in the

United States during the original proceedings before the agency: a girl on June 4, 2000

and a boy on July 4, 2002.

At issue now, on February 7, 2011, more than four years after the Board’s final

order of removal, Ni filed an untimely motion to reopen with the Board, in which she

claimed that the Chinese government had increased the enforcement of its population

control policies in her home locale of Guantou Town, Fujian Province, since her merits

hearing, warranting an exception to the filing deadline for motions to reopen. Ni sought

asylum based on her opposition to China’s one-child policy. Ni argued that, beginning in

2007, Fujian Province officials imposed new family planning targets and quotas

throughout the Province. Pressure on local officials to meet predetermined targets and

quotas, she argued, invariably leads to coercive enforcement of family planning laws,

including involuntary sterilization. Ni feared that she would be forcibly sterilized in

China because she is in violation of China’s one-child policy.

2 In support of her claim, Ni submitted numerous exhibits, including, in particular,

the “Eleventh Five-Year” Population and Family Planning Special Regulations of Fujian

Province; a Notice from her Village Committee; affidavits from her father, and a friend

and cousin; the 2007 United States Department of State Profile of Asylum Claims and

Country Conditions for China (“2007 Profile”); a report by Dr. Flora Sapio of Julius-

Maximilians University in Wurzburg, Germany, which concluded that the 2007 Profile

was deficient, unreliable and not balanced; and a portion of the 2009 Annual Report of

the Congressional-Executive Commission on China, which concludes that persecutory

enforcement measures including forced abortions and involuntary sterilization continued

to be commonplace in Fujian Province in 2009. The motion to reopen was opposed by

the Department of Homeland Security.

On July 20, 2011, the Board denied Ni’s motion to reopen as untimely filed,

concluding that the exception to the time requirement invoked by Ni did not apply in her

case. With respect to her evidence of worsening conditions in China with regard to

family planning enforcement, the Board found that Ni’s evidence was insufficient

because some documents she submitted were not authenticated as required by 8 C.F.R. §

1287.6 or in any manner; some documents were not new or previously unavailable; some

documents were relevant only to towns other than Guantou Town; and none of the

documents indicated that Ni would be subjected to involuntary sterilization or economic

harm amounting to persecution if she returned to Guantou Town. The Board found

evidence in the 2007 Profile that China regards a child of Chinese nationals who was

born abroad as a Chinese national, but that same 2007 Profile, which was a superior

3 source of information on conditions in China, did not establish that Ni would be

subjected to involuntary sterilization. In addition, Ni’s cousin and friend were not

similarly situated to Ni because they gave birth to their children in China, not the United

States. The Board found that Dr. Sapio was not an expert on the 2007 Profile, and that

her report did not establish worsening conditions in China, only that China continues to

enforce its one-child policy; and the Board declined to give much weight to the Guantou

Township Village Committee’s Notice. Last, the Board noted that the birth of Ni’s two

children was a change in personal circumstances, not a change in country conditions, 8

C.F.R. § 1003.2(c)(3)(ii).

Ni timely petitions for review of the Board’s decision. We have jurisdiction under

8 U.S.C. § 1252(a)(1), (b)(1). We review the Board’s denial of a motion to reopen for

abuse of discretion. INS v. Abudu, 485 U.S. 94, 105 (1988). Under this deferential

standard of review, we will not disturb the Board’s decision unless it is arbitrary,

irrational, or contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).

We uphold the Board’s factual determinations underlying the denial of the motion to

reopen if they are “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Zheng v. Att’y Gen. of the U.S., 549 F.3d 260, 266 (3d

Cir. 2008) (quoting Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478,

481 (1992)). Put another way, such determinations must be upheld unless the evidence

presented would compel a reasonable factfinder to reach a contrary result. 8 U.S.C. §

1252(b)(4)(B); Guo, 386 F.3d at 561.

4 We will deny the petition for review. Although a motion to reopen “must be filed

no later than 90 days after the date on which the final administrative decision was

rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), this time

limitation does not apply if the alien seeks reopening “based on changed circumstances

arising in the country of nationality or in the country to which deportation has been

ordered, if such evidence is material and was not available and could not have been

discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). See also 8

U.S.C. § 1229a(c)(7)(C)(ii). Because Ni’s motion to reopen was not filed within 90 days

of the Board’s December, 2006 decision, it had to be based on material, previously

unavailable evidence of worsening conditions in China with respect to enforcement of its

one-child policy for Chinese nationals who have returned to China with two children

born in the United States.

We conclude that the Board’s findings concerning Ni’s country conditions

evidence are supported by substantial evidence, Zheng, 549 F.3d at 266; Elias-Zacarias,

502 U.S. at 48, and that the Board did not abuse its discretion in determining that Ni did

not qualify for the changed country conditions exception to the time requirement for

filing a motion to reopen, see Abudu, 485 U.S. at 105; Guo, 386 F.3d at 562. Just as the

Board concluded, the evidence Ni submitted with her motion to reopen did not provide a

reliable or sufficient basis for concluding that there has been a worsening of China’s

population control enforcement policies since Ni’s merits hearing in May, 2005, or that

she will be subjected to involuntary sterilization upon her return to China. For example,

the Fujian Province “Eleventh Five-Year” Population and Family Planning Special

5 Regulations, show continuing efforts to control population increases, but do not show

increased use of involuntary sterilization or economic punishments that rise to the level

of persecution. A.R. 332-33. Moreover, this is not a case in which the agency ignored

evidence favorable to Ni. See generally Huang v. Att’y Gen. of U.S., 620 F.3d 372, 388

(3d Cir. 2010).

In her brief, Ni has specifically challenged only the Board’s findings regarding her

Village Committee Notice, A.R. 112, her father’s affidavit, Dr. Sapio’s report on the

2007 Profile, and the 2009 Congressional-Executive Commission on China report, A.R.

145-54. Accordingly, we will address only these exhibits. None of these items are

sufficiently persuasive to compel a reasonable factfinder to reach a result contrary to that

of the Board’s in Ni’s case. 8 U.S.C. § 1252(b)(4)(B); Guo, 386 F.3d at 561. Ni argues

that the Board failed to consider her father’s affidavit and that it was sufficient to

authenticate the Village Committee Notice. She argues that the Board erred in failing to

give the Notice any weight merely because it was not authenticated. See Petitioner’s

Brief, at 17-22. We disagree. The Notice was not authenticated in accordance with 8

C.F.R. § 1287.6(b), and thus we consider whether it was authenticated in accordance with

our more lenient precedent, see Leia v. Ashcroft, 393 F.3d 427, 434 (3d Cir. 2005). In

the affidavit Ni’s father explains that he sought information from the Village Committee

and received the Notice in response. A.R. 106.

The Board specifically referenced in its decision that Ni had submitted an affidavit

from her father, see Zheng, 549 F.3d at 268 (Board has duty to expressly consider any

country conditions evidence submitted by the applicant that materially bears on her

6 claim), but it is true that the Board did not specifically address whether the affidavit

would suffice to authenticate the Notice, see generally Chen v. Att’y Gen. of the U.S., ---

F.3d --- , 2011 WL 923353, at * 4 (3d Cir. 2011) (Board “properly observed that the

Village Committee document had not been authenticated by any means at all, such as an

affidavit from Ms. Chen’s mother as to how the document was obtained”). After

reviewing Ni’s motion to reopen, we conclude that this is likely because Ni’s authenticity

argument in her motion to reopen made no mention of her father’s affidavit. The motion

to reopen devotes three full pages to the authenticity of the exhibits Ni offered, A.R. 59-

62, observing that many reports and articles came from publically accessible government

websites, or were specifically authenticated by Dr. Sapio in her report, see id. at 59-61.

But, with respect to Ni’s having “offered original documentation received from the local

planning office,” her authentication argument references only “the envelope in which the

evidence was sent from China,” see id. at 61, and makes no mention whatever of her

father’s affidavit. The Board understandably did not address Ni’s argument that her

father’s affidavit would suffice to authenticate the Village Committee Notice because

there was nothing to alert the Board to its existence.

In any event, the Board concluded that the Village Committee Notice also was

unreliable and unpersuasive, and not just that it had not been authenticated. The Board

did not act arbitrarily in giving little weight to the Notice. The Notice was not signed by

any individual or member of the Village Committee, Ni obtained the document in support

of her motion to reopen, and the stamp on the document is completely illegible. See

Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 (BIA 2010) (giving less weight to

7 documents which were obtained for the purpose of the hearing, were unsigned, or which

failed to even identify the authors). Moreover, the Notice does not state that Ni will be

involuntarily sterilized upon her return to China for giving birth to two children in the

United States. It states in an introductory paragraph that Chinese citizens who have two

children “will sure be sterilized,” A.R. 112, and then goes on to discuss Ni’s particular

situation. In discussing Chinese citizens like Ni who have two children born in the

United States, the Notice is more equivocal, stating, “[n]ow that you have already had

two children in the United States, you need to decide the nationality issue after the

children return to China,” and “[i]f you return to China and register your children’s

residencies, you should strictly abide by the local family planning regulations just like the

local residents. There are no exceptions.” Id.

Accordingly, the Notice is not entitled to much weight. We agree with the

Attorney General that the “best resource,” Zubeda v. Ashcroft, 333 F.3d 463, 478 (3d Cir.

2003), continues to be the 2007 Profile, which states that: “U.S. Officials in China are not

aware of the alleged official policy, at the national or provincial levels, mandating

sterilization of one partner of couples that have given birth to two children, at least one of

whom was born abroad,” A.R. 238. The Notice does not undermine the 2007 Profile,

which indicates that China continues to enforce its family planning regulations but does

not use measures such as involuntary sterilization on Chinese couples who return to

China with two children born abroad. See Matter of H-L-H-, 25 I. & N. Dec. at 214

(“Although acknowledging that there were ‘reportedly’ forced sterilizations in Fujian in

2006, the State Department observes [in its 2007 Profile] that Consulate General officials

8 visiting Fujian have found that coercion through public and other pressure has been used,

but they did not find any cases of physical force employed in connection with abortion or

sterilization.”). See also Chen, --- F.3d at ---, 2011 WL 923353, at *2 (Board’s opinion

in Matter of H-L-H- is comprehensive and persuasive). The 2009 Congressional-

Executive Commission on China report concerns only women who have given birth to

children in China, and thus is not material to Ni.

Considering the report Ni submitted by Dr. Sapio, substantial evidence supports

the Board’s finding that Dr. Sapio was not an expert on the reliability of the State

Department’s 2007 Profile. Ni failed to establish that the 2007 Profile is deficient in any

way. She argues in her brief that the Board failed to consider Dr. Sapio’s report, which

directly contradicts the 2007 Profile, or explain why Dr. Sapio is not an expert on the

reliability of the 2007 Profile, and that Dr. Sapio’s affidavit is precisely the type of

countervailing evidence called for by the Board in Matter of H-L-H-. Moreover, the

2009 Congressional-Executive Commission on China report should be considered the

best evidence on the matter. See Petitioner’s Brief, at 23, 28-33, 35 n.3. Again we

disagree. The Board reasonably concluded that Dr. Sapio is not an expert on the quality

and reliability of State Department reports on country conditions in China, including the

2007 Profile. Dr. Sapio’s report and curriculum vitae support the Board’s conclusion

with respect to her lack of expertise in evaluating the methodology of the 2007 Profile.

Dr. Sapio’s curriculum vitae does not indicate relevant education or employment by

which she would have obtained any expertise about the State Department and how it

9 prepares its reports. 1 Moreover, contrary to Ni’s argument, the Board did not create an

impossibly high standard to meet in rejecting Dr. Sapio’s affidavit. It simply gave special

weight to the 2007 Profile, which is based on the collective expertise and experience of

the State Department.

For the foregoing reasons, we will deny the petition for review.

1 Dr. Sapio received her doctorate in History and Civilization of the Far East, and describes herself as a Chinese law scholar. Her published articles concern corruption and economic crimes in China. 10