Ding Hui Wang v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 17, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11262
Non-Argument Calendar
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Agency No. A098-714-838
DING HUI WANG,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 17, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Ding Hui Wang (Wang) petitions for review of the Board of Immigration
Appeals’ (BIA’s) decision denying his motion to reopen his removal proceedings.

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Because we conclude that the BIA’s decision was not arbitrary or capricious, we
deny Wang’s petition.
I.
We review the BIA’s decision not to reopen immigration proceedings for
abuse of discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006).
We will only find that the BIA has abused its discretion if its decision was
arbitrary or capricious. Id.
In order to prevail on a motion to reopen, a petitioner must make a prima
facie showing that he is entitled to relief. See Jiang v. U.S. Att’y Gen., 568 F.3d
1252, 1256 (11th Cir. 2009). The motion must be supported by affidavits or other
evidentiary material, but the board is entitled to discount unauthenticated
documents. 8 C.F.R. § 1003.2(c); Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1353 (11th Cir. 2009).
II.
Wang entered the United States without authorization on December 13,
2004. Shortly thereafter he was charged as removable. Wang conceded that he
was removable, but filed an application for asylum and withholding of removal
under the Immigration and Nationality Act (INA) and the United Nations
Convention Against Torture (CAT) based on his opposition to China’s family
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planning policies. Wang’s application for relief was ultimately denied by both the
Immigration Judge and the BIA. After the BIA denied Wang’s application, he
filed a motion to reopen his removal proceedings based on new and previously
unavailable evidence.
Wang’s motion contended that he had begun practicing Falun Gong while in
the United States and that his activities had been reported to Chinese officials who
ordered him to cease his religious practices and return to China to be punished. In
support of his motion Wang attached three affidavits and a notice that Wang
claimed was the Village Council sent to his parents. He also submitted the State
Department’s 2007 Country Report for China.
The BIA denied Wang’s motion because it concluded that Wang failed to
make a prima facie showing that his new evidence entitled him to relief. The
board reached this conclusion because the evidence Wang submitted in support of
his motion was unauthenticated and thus failed to meet his evidentiary burden.
See 8 C.F.R. § 1287.6 (setting out procedures for authentication of official foreign
documents). The BIA noted that although it would be difficult for Wang to
authenticate the notice from the Village Council by asking the same government
officials who he contended were his persecutors to do so, he had failed to
authenticate the notice in any matter. He also failed to provide any evidence
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showing that affidavits from his relatives were genuine. The BIA further
explained that even if the documents were authentic, they were not sufficient to
warrant reopening Wang’s immigration proceedings.
Wang has petitioned for review, and he argues that the BIA erred by finding
his supporting foreign documents insufficiently reliable because they were
unauthenticated. He also argues that the documents should have established a
prima facie case that warranted reopening his removal proceedings.
We conclude that the BIA did not act arbitrarily or capriciously in denying
Wang’s motion to reopen. The BIA acknowledged that it was unlikely that his
persecutors would authenticate the Village Council notice, and suggested that it
would consider alternative methods of authentication. But Wang did not attempt
to authenticate the notice any way. Because the BIA was entitled to discount this1
unauthenticated foreign document, it did not abuse its discretion in denying
Wang’s motion to reopen.2
PETITION DENIED.
Wang has not argued that the BIA erred by discounting the affidavits purportedly from1
his family and as such he has abandoned that argument. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005).
Because the BIA was entitled to discount Wang’s unauthenticated foreign documents,2
we need not decide whether Wang otherwise made out a prima facie case.
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