ZHANLING JIANG v. Holder
2011 U.S. App. LEXIS 19618
| 9th Cir. | 2011Background
- Jiang, a native and citizen of China, petitions for review of the BIA's denial of his applications for adjustment of status, asylum, withholding of removal, and CAT protection.
- Jiang challenges the IJ's denial of his motion for a continuance and the BIA's denial of remand to reconsider his adjustment application.
- Jiang offered two documents (Affidavit of Single and a Notarial Certificate) to prove he is unmarried, to qualify as the unmarried son of a U.S. citizen.
- The IJ refused to accept the documents absent consular authentication under 8 C.F.R. § 287.6 and did not permit authentication by Jiang's testimony.
- The court holds that authentication may be accomplished by non-consular methods, and remands for BIA to reconsider Jiang's adjustment application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jiang is eligible for adjustment as the unmarried son. | Jiang contends documents prove unmarried status. | HOLDER contends documents are inadmissible absent consular authentication. | Jiang is statutorily eligible; substantial evidence does not support IJ finding otherwise. |
| Whether the IJ abused discretion by denying a continuance to authenticate documents. | Jiang should have a short continuance to obtain valid authentication. | Proceedings should not be delayed; authentication was not properly established. | IJ abused discretion; remand for reconsideration of adjustment. |
Key Cases Cited
- Zhao v. Mukasey, 540 F.3d 1027 (9th Cir. 2008) (unmarried-son eligibility for adjustment)
- Khan v. INS, 237 F.3d 1143 (9th Cir. 2001) (documents may be authenticated by methods other than consular certification)
- Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007) (consider testimony as evidence of document authenticity)
- Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008) (factors for denial of continuance and administrative delay)
- Karapetyan v. Mukasey, 543 F.3d 1118 (9th Cir. 2008) (balance of continuance factors; administrative efficiency not sole justification)
- INS v. Ventura, 537 U.S. 12 (2002) (remand authority and administrative review context)
- Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009) (continuance doctrine and review of BIA decisions)