Fei Yan Zhu v. Attorney General United States
744 F.3d 268
| 3rd Cir. | 2014Background
- Zhu Fei Yan, a Chinese national, entered the U.S. in 1999 without authorization and sought asylum, withholding of removal, and CAT protection based on alleged population-control persecution.
- IJ found Zhu not credible and denied her asylum; BIA affirmed without opinion.
- Zhu filed a 2002 motion to reopen asserting new child(ren) and risk of sterilization; BIA denied.
- A 2008 motion to reopen claimed new county-level enforcement changes; BIA denied for lack of material change in country conditions.
- Zhu filed a third motion to reopen in 2013 with voluminous documentary evidence and an expert affidavit; BIA denied for lack of demonstrated material change and CAT claim, prompting this petition for review.
- Court remands to BIA for meaningful consideration of the evidence and authenticitiy/relevance assessment of documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did BIA abuse discretion by not meaningfully addressing Zhu’s evidence? | Zhu's 85+ documents were not adequately considered. | BIA appropriately weighed the evidence and found key documents unauthentic or irrelevant. | Remanded for thorough, meaningful consideration of all evidence. |
| Authentication of foreign government documents; standard of proof? | Documents from Zhu’s hometown/province may be authentic and probative; authentication should be explored. | BIA appropriately discounted/authentication due to lack of clear authentication. | Remanded to allow authentication assessment and determine weight of those documents. |
| Did BIA properly consider U.S. government and Fujian province documents on population control changes? | CECC/State Department materials indicate increased coercive measures; should be weighed against 2007 Profile. | BIA treated such material as not sufficient to show sterilization likelihood and selectively weighed sources. | Remanded for full, explicit consideration of all country-conditions evidence and cross-cutting sources. |
| Was the BIA’s reliance on 2007 Profile over other sources justified? | Recent CECC reports suggest changes undermining reliance on 2007 Profile. | State Department reports are a valid baseline; balance with other sources needed. | Remanded to reconcile weight given to various sources and explain rationale. |
Key Cases Cited
- Liu v. Ashcroft, 372 F.3d 529 (3d Cir. 2004) (authentication can be proved by methods other than §1287.6 when government officials hinder access)
- Zheng v. Att’y Gen., 549 F.3d 260 (3d Cir. 2008) (BIA must meaningfully consider evidence and explain rejection)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004) (abuse-of-discretion standard for motions to reopen; deference to BIA)
- Ni v. Holder, 715 F.3d 620 (7th Cir. 2013) (BIA’s failure to address evidence meaningfully is remediable on remand)
- In re J-H-S-,, 24 I. & N. Dec. 196 (BIA 2007) (local enforcement evidence can support relief when authentic and relevant)