Yan Zhao v. Eric Holder, Jr.
2013 U.S. App. LEXIS 18590
| 9th Cir. | 2013Background
- Yan Rong Zhao, a Chinese national, seeks review of the BIA's denial of her motion to reopen removal proceedings on fear of persecution under China’s family planning policy.
- The IJ denied asylum, withholding of removal, and CAT relief; Zhao testified she faced persecution for being unmarried with two children.
- Zhao gave birth to a second son while her BIA appeal was pending and submitted affidavits and a notice from Duhu Town Family Planning Office claiming she would be sterilized upon return.
- The BIA held Zhao’s motion to reopen numerically barred and failed to show a material change in China since the 2008 hearing; it also rejected evidence as insufficient for prima facie eligibility.
- The BIA restricted the evidentiary scope to Duhu Town-specific proof rather than province- or locality-wide evidence, and discounted copies and unauthenticated documents.
- The court held that the BIA abused its discretion by misapplying law, failing to consider the record as a whole, and misapplying evidence standards, and granted the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA erred by holding Zhao’s motion to reopen numerically barred | Zhao argues the first remand motion pre-dates a final decision, so §1003.2(c)(2) does not apply. | BIA maintained numerical bar applies to subsequent motions absent changed country conditions. | BIA erred in treating Zhao as numerically barred. |
| Whether the BIA restricted admissible evidence to Duhu Town-specific proofs | Zhao need not prove municipal proof; province- or locality-wide evidence may suffice. | BIA required local municipal proof of enforcement rising to persecution. | BIA abused discretion by requiring Duhu Town-specific proof and not applying predecessor standard. |
| Whether the BIA failed to consider the evidence in its entirety | Zhao’s substantial evidence was improperly discounted piecewise and not weighed collectively. | BIA properly weighed evidence on its own terms. | BIA failed to consider the record as a whole; remand appropriate. |
| Whether Zhao established prima facie eligibility for relief with the new evidence | The record, read holistically, supports prima facie eligibility for asylum under local family planning policies. | Evidence did not establish prima facie eligibility for relief. | BIA erred in evaluating prima facie eligibility. |
| Whether the proper standard and treatment of evidence require remand | The agency must apply its standard consistent with case law and practice, not impose an undue evidentiary shell game. | Agency acted within its discretion on evidentiary evaluation. | Remand for reconsideration consistent with governing standards. |
Key Cases Cited
- Chang Hua He v. Gonzales, 501 F.3d 1128 (9th Cir. 2007) (abuse of discretion when agency departs from its precedent)
- Singh v. INS, 295 F.3d 1037 (9th Cir. 2002) (arbitrary or irrational agency action standard)
- Ali v. Holder, 637 F.3d 1025 (9th Cir. 2011) (limits on agency grounds for denial on appeal)
- Ordonez v. INS, 345 F.3d 777 (9th Cir. 2003) (prima facie requirement and burden in asylum cases)
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (consideration of evidence and remand standards)
- Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005) (affidavits and testimony treated as true unless inherently unbelievable)
- Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006) (authentication and admissibility of foreign documents; weight considerations)