05-5741-ag Qin Wen Zheng v. Gonzales UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2006 3

05-5741-ag
Qin Wen Zheng v. Gonzales
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2006 3
(Submitted: March 21, 2007 Decided: August 31, 2007 4
Errata Filed: September 20, 2007) 5
Docket No. 05-5741-ag 6
7
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QIN WEN ZHENG, 9
Petitioner, 10
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ALBERTO R. GONZALES, 12
Attorney General of the United States 13
Respondent. 14
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Before: SACK, PARKER, and HALL, Circuit Judges. 16
Petition for review of a decision by the Board of 17
Immigration Appeals denying the petitioner's motion to reopen his 18
asylum proceedings. The Board did not abuse its discretion in 19
determining that the petitioner failed to demonstrate changed 20
country conditions. 21
Petition denied. 22
Michael Brown, New York, NY, for 23
Petitioner. 24
Margaret A. Hickey, Assistant United 25
States Attorney for the Northern 26
District of Illinois (Patrick J. 27
Fitzgerald, United States Attorney, 28
Craig Oswald, Assistant United States 29
Attorney, on the brief), Chicago, IL, 30
for Respondent. 31

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1 United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. See
also 8 C.F.R. § 208.16(c) (implementing regulations).
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SACK, Circuit Judge: 1
Qin Wen Zheng, a Chinese citizen from Changle City in 2
the Fujian Province of China, petitions for review of a decision 3
by the Board of Immigration Appeals ("BIA") denying his second 4
motion to reopen proceedings in his case as untimely and 5
numerically barred under 8 C.F.R. § 1003.2(c)(2). In re Qin Wen 6
Zheng, No. A 77 224 430 (B.I.A. Oct. 18, 2005); see also 8 C.F.R. 7
§ 1003.2(c)(3)(ii) (allowing for one motion to reopen filed 8
within ninety days of the final agency decision). Zheng contends 9
that the BIA wrongly determined that he failed to demonstrate 10
changed country conditions in China that might exempt the motion 11
from those bars. As particularly relevant here, Zheng argues 12
that the BIA erred in rejecting for lack of authentication a 13
purported notice from a municipal government in China threatening 14
him with "severe[] punish[ment]" if he did not abandon his 15
application for asylum and return to China forthwith. 16
BACKGROUND 17
Zheng arrived in the United States in July 1998. He 18
applied for asylum, withholding of removal, and relief under the 19
Convention Against Torture1 ("CAT") based on the alleged forced 20
sterilization of his wife under the Chinese family-planning 21
policy. At a hearing before Immigration Judge ("IJ") Adam 22

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Opaciuch, Zheng conceded removability. He testified and 1
submitted documentary evidence in support of his claims. On June 2
23, 2000, the IJ denied Zheng's requests for relief, determining 3
that his testimony was not credible because it was inconsistent 4
with his prior statements and other documentary evidence, and 5
that he, therefore, failed to meet his burdens of proof. In re 6
Qin Wen Zheng, No. A 77 224 430 (Immig. Ct. N.Y. City June 23, 7
2000). Zheng appealed to the BIA, which affirmed the IJ's 8
decision, without opinion, on November 21, 2002. In re Qin Wen 9
Zheng, No. A 77 224 430 (B.I.A. Nov. 21, 2002). Zheng did not 10
petition this Court for review of that decision. 11
In October 2003, Zheng filed a motion to reopen his 12
removal proceedings. He again argued the merits of his asylum 13
claim and submitted, inter alia, affidavits from, and photographs 14
of, his wife and children in China. On April 19, 2005, the BIA 15
denied the motion, finding that Zheng had filed the motion beyond 16
the ninety-day time limit and had failed to establish changed 17
circumstances that would permit a late filing. In re Qin Wen 18
Zheng, No. A 77 224 430 (B.I.A. Apr. 19, 2005). Again, Zheng 19
refrained from petitioning this Court for review. 20
In August 2005, Zheng filed a second motion to reopen, 21
claiming that he was newly eligible for relief based on changed 22
country conditions in China. He submitted a variety of documents 23
in support of his motion, including various country reports from 24
the United States Department of State, the governments of the 25
United Kingdom and Canada, and Amnesty International; a newspaper 26

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article; an internet printout of a Chinese law addressing the 1
entry and exit of citizens to and from China; and a copy of a 2
decision by the United States Court of Appeals for the Ninth 3
Circuit. He also submitted a notice allegedly sent to his wife 4
from officials of his local village that, he contends, 5
demonstrates that conditions had materially changed there. 6
The Village Notice 7
The notice that Zheng submitted was in Chinese 8
accompanied by an English translation. Entitled "Notice" (we 9
refer to it hereinafter as such), it is dated June 26, 2005, and 10
its letterhead in the submitted English translation reads "Long 11
Tian Villager Commission, Guhuai Town, Changle City, Fujian 12
Province, China." It also appears to have a stamp on the lower 13
right quadrant which is translated to read "Long Tian Villager 14
Commission, Guhuai Town, Changle City." As translated, the 15
Notice reads in its entirety: 16
The government is currently investigating those 17
people who had left the country illegally and 18
applied for asylum in overseas. Their behaviors 19
has damaged our countries' international image. 20
From the report we received, we found out that 21
your husband, Zheng Qin Wen is among those people. 22
He not only violated the family planning policy in 23
China, but also illegally left China and went to 24
the United States wherein he did something 25
detrimental to our country's dignity. It is 26
hereby ordered that you must persuade your husband 27
Zheng Qin Wen immediately stopping his asylum 28
application in overseas, coming back to China and 29
surrendering himself to the government to obtain a 30
lenient treatment. Otherwise, he will be severely 31
punished if he is arrested. 32

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2 Although the text of the "Translation Certificate" refers
to Lawrence He as the translator, the document is signed by Allen
Chan.
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The Notice was supported solely, and only to some extent, by an 1
affidavit from Zheng's wife. Also translated from Chinese to 2
English,2 the affidavit rehearses the underlying assertions of 3
Zheng's asylum application. The affidavit also attempts to 4
provide further context to the local government's crackdown 5
against Chinese citizens who apply for asylum elsewhere, and 6
generally reiterates the message and substance of the Notice. It 7
does not include any reference to the Notice. 8
The BIA Opinion 9
The BIA was unpersuaded by Zheng's submission. See In 10
re Qin Wen Zheng, No. A 77 224 430 (B.I.A. Oct. 18, 2005) (per 11
curiam). "Much of the evidence now presented, including the 12
wife's affidavit and background material," it said, "was not 13
previously unavailable or is not new. . . . The new country 14
reports have not been highlighted. . . ." Id. The BIA 15
continued: "[T]he purported notice from the respondent's home 16
town has not been authenticated, a fact which is relevant in the 17
context of this case in light of the [IJ's] adverse credibility 18
finding." Id. The agency denied Zheng's motion to reopen on the 19
grounds that his evidentiary submissions failed to demonstrate 20
changed country conditions, which could have excepted the motion 21
from the time and numerical bars that otherwise apply. 22
Zheng petitions for review. 23

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3 The applicable portion of section 1229a provides:
(7) Motions to reopen.
(A) In general. An alien may file one motion to
reopen proceedings under this section . . . .
. . . .
(C) Deadline.
(i) In general. Except as provided in this
subparagraph, the motion to reopen shall be
filed within 90 days of the date of entry of
a final administrative order of removal.
(ii) Asylum. There is no time limit on the
filing of a motion to reopen if the basis of
the motion is to apply for relief under
sections 208 or 241(b)(3) [8 USCS §§ 1158 or
1251(b)(3)] and 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
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DISCUSSION 1
I. Standard and Scope of Review 2
Zheng's petition to this Court, filed on October 26, 3
2005, is timely only as it pertains to the BIA's denial of his 4
second motion to reopen on October 18, 2005. See 8 U.S.C. 5
§ 1252(b)(1) (requiring a petition for review to be filed no 6
later than thirty days after the date of the order to be 7
challenged). We therefore may review no more than that denial. 8
See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam) 9
(noting that we are precluded from reviewing the underlying 10
merits of an asylum claim on a motion to reopen). 11
It is undisputed that both the time and numerical bars 12
pertaining to motions to reopen apply here. See 8 U.S.C. 13
§ 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).3 Zheng argues, 14

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have been discovered or presented at the
previous proceeding.
8 U.S.C. § 1229a(c)(7)(A), (C).
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however, that he has demonstrated the existence of materially 1
changed conditions in China affecting the possibility of his 2
persecution there should he be forced to return, which would 3
satisfy one of four possible exceptions to those limitations. 4
See 8 C.F.R. § 1003.2(c)(3)(ii) ("[T]ime and numerical 5
limitations . . . shall not apply to a motion to reopen 6
proceedings . . . based on changed circumstances arising in the 7
country of nationality or in the country to which deportation has 8
been ordered, if such evidence is material and was not available 9
and could not have been discovered or presented at the previous 10
hearing."). 11
"A motion to reopen proceedings [must] state the new 12
facts that will be proven at a hearing to be held if the motion 13
is granted and shall be supported by affidavits or other 14
evidentiary material." 8 C.F.R. § 1003.2(c)(1). Such a motion 15
"[may] not be granted unless it appears to the [BIA] that 16
evidence sought to be offered is material and was not available 17
and could not have been discovered or presented at the former 18
hearing." Id. 19
"We review the decision to deny a motion to reopen 20
removal proceedings for abuse of discretion." Bhanot v. 21
Chertoff, 474 F.3d 71, 73 (2d Cir. 2007) (per curiam). The BIA 22
abuses its discretion if its decision "provides no rational 23

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explanation, inexplicably departs from established policies, is 1
devoid of any reasoning, or contains only summary or conclusory 2
statements." Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 3
2006) (internal quotation marks and citation omitted). 4
II. The Notice 5
The propriety of the BIA's decision to deny Zheng's 6
second motion to reopen depends on its conclusion that Zheng had 7
not established a change in country conditions, which in turn was 8
based in part on the BIA's refusal to credit the Notice. The BIA 9
noted that the Notice lacked authentication, which, "in light of 10
the [IJ's] adverse credibility finding," prompted the BIA to 11
reject the document's authenticity. Citing no authority, Zheng 12
argues that "the Board committed a legal error in giving no 13
weight to the merit of the evidence[,] instead focusing on the 14
admissibility of the evidence." Pet. Br. at 7. 15
We conclude that the BIA, in relying on the adverse 16
credibility determination made by the IJ following Zheng's asylum 17
hearing, reasonably rejected the authenticity of the Notice. In 18
Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007), we found that the 19
doctrine of falsus in uno, falsus in omnibus supported a general 20
adverse credibility finding based on a determination that the 21
petitioner had submitted a fraudulent document. Id. at 170. In 22
reaching that conclusion, we noted that "a single false document 23
or a single instance of false testimony may (if attributable to 24
the petitioner) infect the balance of the alien's uncorroborated 25

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or unauthenticated evidence." Id. Similarly, in Borovikova v. 1
U.S. Dep't of Justice, 435 F.3d 151 (2d Cir. 2006), we decided 2
that the conclusion that a document was fraudulent supported a 3
general finding of adverse credibility sufficient to reject an 4
asylum application. Id. at 157-58. The BIA's use here of the 5
IJ's unchallenged conclusion that Zheng was not credible in 6
support of its refusal to credit the authenticity of the Notice 7
was similarly appropriate. 8
The BIA's decision to reject the Notice was further 9
buttressed by the inconsistencies between it and the "new country 10
reports" that Zheng submitted in an attempt to demonstrate that 11
country conditions had changed adversely and materially. The 12
2004 Department of State report on China submitted by Zheng 13
states: 14
The Chinese Government accepts the 15
repatriation of citizens who have entered 16
other countries or territories illegally. In 17
the past several years, hundreds of Chinese 18
illegal immigrants have been returned from 19
the United States, and U.S. Embassy officials 20
have been in contact with scores of them. In 21
most cases, returnees are detained long 22
enough for relatives to arrange their travel 23
home. Fines are rare. U.S. officials in 24
China have not confirmed any cases of abuse 25
of persons returned to China from the United 26
States for illegal entry. Persons identified 27
as organizers or enforcers of illegal migrant 28
trafficking are liable to face criminal 29
prosecution in China. 30
China: Profile of Asylum Claims and Country Conditions, U.S. 31
Department of State, Bureau of Democracy, Human Rights and Labor, 32

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4 The petitioner also submitted a September 1999 report
from the Immigration and Refugee Board of Canada, which examines
the treatment of illegal emigrants who return to Fujian province.
Although the BIA properly disregarded this submission because it
was available to the petitioner at the time of his original
asylum application, the report focuses on the illegal activities
of immigrant smugglers, known as "snakeheads," not the emigrants
themselves. The lone discussion of the role of the Chinese
government centers on its response to the snakeheads' activities,
and its attempt to crackdown on the improper treatment of Chinese
returnees by the snakeheads. The provisions of Chinese law cited
in the document focus primarily on those who facilitate the
illegal exit from and entry into the country, and on any citizens
who obtain immigration documents through illegal means.
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at 33 (June 2004).4 Although the BIA is required to consider an 1
applicant's countervailing evidence in addition to State 2
Department reports, see Cao He Lin v. U.S. Dep't of Justice, 428 3
F.3d 391, 403 (2d Cir. 2005), the BIA does not abuse its 4
discretion in crediting the State Department reports in the face 5
of uncorroborated anecdotal evidence to the contrary, Wei Guang 6
Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir. 2006); see also Mu 7
Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir. 8
2005). Apart from the Notice, we have found no evidence in the 9
record indicating that Zheng's act of leaving China to seek 10
asylum in the United States without permission from Chinese 11
authorities would, without more, result in Zheng's persecution. 12
Although Zheng does not mention the case, his argument 13
raises a question akin to one of those we examined in Cao He Lin. 14
There, we addressed the denial by an immigration judge of an 15
application for asylum and concluded that the IJ errs if he or 16
she rejects a document supporting the application solely because 17

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5 Regulations governing authentication of official records
and public documents in BIA proceedings include the requirement,
generally, that specified foreign documents must be
authenticated, either as official documents or as an attested
copy authorized by both foreign-country officials and the United
States Foreign Service. 8 C.F.R. § 287.6.
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it was not properly authenticated under the BIA's regulations.5
1
See Cao He Lin, 428 F.3d at 405. We reasoned that "[b]ecause 2
asylum applicants can not always reasonably be expected to have 3
an authenticated document from an alleged persecutor," id., 428 4
F.3d at 404 (internal citation and quotation marks omitted), the 5
BIA's authentication regulation "is not the exclusive means of 6
authenticating records before an immigration judge," id.; accord 7
Xue Deng Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir. 2007) 8
(noting that the IJ commits error when it "reject[s] . . . 9
documents solely because they were not authenticated in strict 10
conformity with the regulation"); Yong Ting Yan v. Gonzales, 438 11
F.3d 1249, 1256 n.7 (10th Cir. 2006) ("[C]ourts generally do not 12
view the alien's failure to obtain authentication as requiring 13
the rejection of a document." (citing Cao He Lin, 428 F.3d at 14
404)); see also Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) 15
(noting that "[t]he procedure specified in 8 C.F.R. § 287.6 16
provides one, but not the exclusive, method" of authentication 17
(internal quotation marks and citation omitted)). 18
As we have discussed, however, the BIA's refusal to 19
credit the Notice in this case did not depend on the lack of 20
official authentication consonant with BIA regulations alone. 21
The BIA's rejection of the Notice's authenticity was based 22

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6 We note further that the context of the immigration
proceeding was crucially different in Cao He Lin, which addressed
a petition for review of the denial of an asylum application. An
applicant for asylum may meet his burden of proof based entirely
on his testimony alone; corroborating documents are not required.
See 8 C.F.R. § 1208.13(a) ("The testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof
without corroboration."). Corroborating evidence is required in
an asylum proceeding only "where it would reasonably be
expected." Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000). A
motion to reopen based on changed country conditions, by
contrast, depends solely on a showing of previously unavailable,
material documentary evidence in support of the underlying
proceeding. The Board may consider only the documents submitted
to establish that conditions have indeed changed critically since
the applicant's departure from his home country. The concerns
motivating the Cao He Lin panel are largely absent. The
petitioner need not have -- indeed could not have -- brought the
required documents with him given the requirement that the
evidence must have been previously unavailable, see Wei Guang
Wang, 437 F.3d at 274 (concluding that evidence obtained before
the petitioner left China could not support the BIA's grant of a
motion to reopen because such proof could not amount to "evidence
that 'is material and was not available and could not have been
discovered or presented at the previous hearing'" (quoting 8
C.F.R. § 1003.2(c)(3)(ii)), but the petitioner nevertheless must
present credible, documentary evidence in order for the BIA to
grant the motion.
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substantially on legitimate concerns about Zheng's credibility 1
and contrary evidence in the record. That removes this case from 2
the teaching of Cao He Lin.6
3
We do not reach the question of whether the BIA might 4
err if it required strict compliance with 8 C.F.R. § 287.6 for 5
foreign documents submitted in support of motions to reopen. We 6
recognize that it may not be possible for an applicant filing a 7
motion to reopen to obtain from a foreign government valid and 8
proper authentication of a document such as the Notice, which 9
purports to threaten persecution of an individual seeking asylum 10
elsewhere, even if the evidence supporting its authenticity were 11

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7 Conversely, we have found that a foreign government's
statement that a document is not authentic may be of limited
probative value. In Zhen Nan Lin v. U.S. Dep't of Justice, 459
F.3d 255, 269-70 (2d Cir. 2006) (finding unreliable a United
States Consular Report that relied entirely "on the opinions of
Chinese government officials who appear to have powerful
incentives to be less than candid on the subject of their
government's persecution of political dissidents" because
"[w]here . . . the document at issue, if authentic, is evidence
that a foreign government violated human rights, that
government's 'opinion' as to the document's authenticity is
obviously suspect and therefore of questionable probative
value").
8 To the extent that the wife's affidavit was submitted in
an effort to authenticate the Notice -- which is not clear from
the text of the affidavit, as it does not mention the Notice --
it fails to do so. In addition to the fact that it includes no
mention of the Notice, such as how, when, and where the wife
received it, the affidavit merely reiterates the underlying
asylum arguments and the substance of the Notice.
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credible.7 We decide only that, in this case, the BIA did not 1
abuse its discretion in declining to consider a document -- 2
questionable on its face, supported only by a spouse's affidavit,8
3
and not authenticated pursuant to regulation -- that attempts to 4
establish the sweeping proposition that subsequent to the date of 5
the petitioner's entry into the country and application for 6
asylum, country conditions had undergone a material adverse 7
change sufficient to affect his petition for asylum. 8
B. Other Evidence 9
The petitioner's other evidence, and arguments in 10
support thereof, are also unavailing. The BIA acted within its 11
discretion in determining that many of the documents submitted to 12
it were previously available and that the country reports alone 13
did not demonstrate changed country conditions. Zheng failed to 14

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explain why any of the documents, which were dated from September 1
1999 to February 2004, could not have been submitted earlier. 2
CONCLUSION 3
The BIA did not abuse its discretion in denying the 4
motion to reopen. The petition is denied. Our review having 5
been completed, the petitioner's request for a stay of removal is 6
also denied. 7

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