Zhima Jiata v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4244
___________
ZHIMA JIATA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A099-611-993
Immigration Judge: Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 4, 2009
Before: MCKEE, HARDIMAN and COWEN, Circuit Judges
(Opinion filed: December 18, 2009)
___________
OPINION
___________
PER CURIAM
Petitioner Zhima Jiata, a native of Tibet and citizen of China, was admitted to the
United States on or about August 31, 2005. On April 17, 2006, he was served with a

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Notice to Appear, which charged that he was removable under Immigration & Nationality
Act (“INA”) § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as an alien who did not possess a
valid entry document. On May 5, 2006, Jiata filed an application for asylum under INA §
208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. §
1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c),
1208.18, claiming persecution based on his Tibetan ethnicity and his Buddhist religion,
and he attached to it a personal statement about events that transpired in his Tibetan
village in 2004 and 2005.
Jiata conceded that he was removable as charged. At his merits hearing in
Immigration Court on October 19, 2006, he testified that he was from Yazhong, a small
village in the Lithang District of occupied Tibet. All of the people in his village were,
like him, ethnic Tibetans and followers of the Buddhist teachings of His Holiness the
Dalai Lama. He testified that his wife, Abang, and their eldest daughter, Luorang Zhema,
remained in Yazhong, but that, in 2004, he sent his two younger daughters, Tashi
Choezom and Namgyal Wangmo, to India in the company of his elder brother. He did
this so that they could study the Tibetan culture and heritage in Dharamsala, the Tibetan
community in exile in India.
Because he sent his daughters to school in India, the Chinese police in Yazhong
arrested him on December 20, 2004 on charges that he supported the Tibetan government
in exile. The police detained him for two weeks at the local police station and questioned

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him about whether he had political connections with the Dalai Lama in India. When he
denied that he had any such connections, they beat him on the back with a rubber stick,
hit him in the face, and kicked him in the legs. Jiata testified that the police would not
release him until he paid a 5000 RMB fine, which sum he lacked and had to borrow from
his wife’s relative. The police released him on January 4, 2005 on the condition that he
report to the station every month or face further arrests and fines. The pain he felt from
the beatings caused him to consult a local doctor three or four times during the month
after he was released from detention. Jiata testified that he left Tibet on August 31, 2005,
because he was afraid that he might again face arrest, and he testified that he was afraid to
return to Tibet because he might face life imprisonment.
On cross-examination, Jiata was asked whether the Chinese police had been
looking for him in Yazhong since he left, and he testified: “At home, I have no contact
right now.” App. 177. He admitted, however, that he had contact with his wife, Abang,
in Yazhong, through her relative, Lobsang. See id. Asked whether Lobsang had told him
that anyone had been looking for him since he left home, Jiata testified: “I didn’t get any
such information.” Id. at 178. Asked why he believed the police even cared about him
now, since he had not reported, as required, for over a year, he testified: “I have no
information.” Id. at 179. Asked whether he had contact with his daughters in India, Jiata
testified that, since his arrival in the United States, he had talked with them by telephone
on their school holidays. Id. at 167.

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The initials TAR stand for the Tibet Autonomous Region.1
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Along with his asylum application and attached statement, Jiata submitted into
evidence a copy of the following documents: (a) his passport and visa; (b) his Household
Register; (c) his Freedom Movement Book; (d) his Residence ID; (e) a letter from the
Dhokham Chushi Grangdruk, Inc., in New York; (f) undated photographs of his family,
and a photograph of a Free Tibet demonstration in New York; (g) the affidavit of Kalsang
Gyatotsang, from New York; (h) the State Department’s 2005 Country Report for China
(including Tibet); (i) the State Department’s 2005 Profile of Asylum Claims and Country
Conditions in China; (j) a Washington Post newspaper article on Tibetans in China; (k) a
report entitled, “Prisons in non-TAR Tibet;” (l) an internet report from guchusum.org on1
deaths in Tibet; (m) a 1997 report, entitled “Striking Hard: Torture in Tibet;” (n) a 2000
report entitled, “Torture in Tibet,” submitted to the United Nations Committee Against
Torture; and (o) the 2005 Report to Congress on human rights in China.
The Immigration Judge denied relief and ordered Jiata removed to China. The IJ
found that Jiata’s testimony compelled an adverse credibility finding due to two material
omissions from his application and attached statement: that police demanded that he pay a
fine before they would release him from detention, and that his pain from the beatings in
detention caused him to seek treatment from a doctor three or four times during the month
after his release from detention. The IJ pointed out that Jiata could have, but did not,
provide documentary evidence that might have overcome the weaknesses in his case and

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the discrepancies between his testimony and his application; for example, he could have
corroborated his testimony that his daughters attended a Tibetan school in India and he
could have corroborated his testimony that he was arrested and detained because his
daughters attended the school. He could have provided a statement from his wife to
corroborate his arrest on December 20, 2004, and he could have provided a statement
from his wife’s relative to corroborate his testimony that the police would not release him
until he paid them a fine. The IJ also found that Jiata had failed to prove that he had a
well-founded fear of future persecution, in part because of his admission that his wife and
all of the other Tibetan Buddhists in Yazhong remained there. The IJ also noted that,
despite Jiata’s testimony that he might be imprisoned for life if he returned home, his
application contained no mention of the police contacting anyone in his family about him
since he left his village. The IJ found that Jiata failed to meet the higher standard
required to establish eligibility for withholding of removal, and he also denied Jiata’s
CAT claim for lack of evidence.
Jiata appealed to the Board of Immigration Appeals. On March 21, 2008, the
Board dismissed his appeal, concluding that the IJ’s credibility determination was not
clearly erroneous, 8 C.F.R. § 1003.1(d)(3). The Board agreed with the IJ that material
inconsistencies existed between Jiata’s testimony and his asylum application and
statement regarding the medical treatment he received after his detention and the fine he
was required to pay to secure his release. He also failed to provide readily available

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corroboration from his daughters and his wife. The Board noted that, although Jiata
claimed to have a well-founded fear of persecution, he failed to provide any evidence that
his wife or any of his family members have been contacted by police or have experienced
any problems since his departure in August 2005. The Board also agreed with the IJ that
Jiata failed to establish that he is more likely than not to be tortured, citing 8 C.F.R. §
1208.16(c)(2).
Jiata did not file a petition for review of the Board’s March 21, 2008 final order.
On or about May 12, 2008, he filed a timely motion to reopen with the Board pursuant to
8 C.F.R. § 1003.2(c), explaining that he had recently obtained evidence to substantiate his
claim of past persecution. Specifically, he now had an affidavit from his wife and one
from his brother-in-law, Lobsang, attesting to his treatment by the Chinese government in
2004 and 2005. His wife asserted in her statement that the Chinese police have paid her a
visit and questioned her about Jiata’s whereabouts, verbally and physically abusing,
harassing and intimidating her. She believes that she is still being monitored. Lobsang
asserted in his statement that he paid 5000 RMB to secure Jiata’s release from detention
on January 4, 2005. In addition, Jiata had evidence to document that his two daughters
are bona fide students at the Tibetan SOS Children’s Village. The motion to reopen also
relied on the recently issued 2007 State Department Country Report on China.
Jiata claimed that he obtained these statements and documents only recently, and
he attached an envelope in which they had arrived, via mail, that was postmarked October

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22, 2006, and which, he asserted, demonstrated that they were not available and could not
have been presented at his October 19, 2006 hearing.
On September 22, 2008, the Board denied Jiata’s motion to reopen, concluding
that he failed to show that his new evidence was material, unavailable and could not have
been presented at his original hearing. See 8 C.F.R. § 1003.2(c)(1); Caushi v. Att’y Gen.
of U.S., 436 F.3d 220, 231 (3d Cir. 2006). The Board reasoned that Jiata had failed to
explain adequately why his family members’ statements, describing events in 2004 and
2005, were not available and could not have been presented at his October 19, 2006
hearing, given that they contained information that was clearly discoverable at an earlier
time. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 408-10 (3d Cir. 2003). It appeared to
the Board that Jiata was simply tardy in requesting the evidence from family members.
The information about his daughters’ school attendance also could have been obtained
earlier through the exercise of diligence. Furthermore, it did not corroborate Jiata’s claim
that he had been arrested and beaten by Chinese authorities because of their school
attendance in India. Finally, the 2007 Country Report did not, by itself, given the
previous adverse credibility determination, establish that Jiata now had a prima facie case
for asylum, and, in any event, the pertinent information in the Country Report was
previously available.
Jiata has timely petitioned for review of the Board’s decision denying his motion
to reopen, and thus we may exercise jurisdiction, 8 U.S.C. § 1252(a)(1). We lack

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jurisdiction to review any claims regarding the Board’s March 21, 2008 order, because
Jiata did not file a timely petition for review of that decision. See 8 U.S.C. § 1252(b)(1);
Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405 (1995). Thus, we cannot
review the agency’s initial adverse credibility determination.
We review the Board’s denial of a motion to reopen for abuse of discretion.
Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323 (1992). Under this
standard, we will reverse the Board’s decision only if it is arbitrary, irrational, or contrary
to law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). “As a general rule,
motions to reopen are granted only under compelling circumstances.” Guo v. Ashcroft,
386 F.3d 556, 562 (3d Cir. 2004).
In a motion to reopen removal proceedings, the alien must proffer “new facts to be
proven at a hearing to be held if the motion is granted,” and the motion “shall be
supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). A motion
to reopen proceedings “shall not be granted” unless it appears to the Board that the
evidence offered “is material and was not available and could not have been discovered
or presented at the former hearing.” Id. See also Caushi, 436 F.3d at 232. Even if prima
facie eligibility for the underlying relief of asylum is shown, the Board still has discretion
to deny the motion. 8 C.F.R. § 1003.2(a).
The alien carries the heavy burden of demonstrating that his motion should be
granted; there are both procedural and substantive hurdles that must be overcome.

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Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 313 (3d Cir. 2007). The Board may deny a
motion to reopen proceedings on any of these grounds: (1) it may hold that the alien has
failed to establish a prima facie case for the underlying substantive relief; (2) it may
conclude that the alien has failed to introduce previously unavailable and material
evidence; and (3) if the underlying substantive relief is discretionary, it may decline to
consider the first two threshold requirements and, instead, determine that the alien would
not be entitled to the requested discretionary grant of relief. Doherty, 502 U.S. at 323
(citing Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 104-05 (1988)).
We conclude that the Board did not abuse its discretion in denying Jiata’s motion
to reopen. Its reasons for denying the motion were not arbitrary, capricious or contrary to
law. Jiata argues that the Board engaged in speculation when it found that the statements
of family members that he submitted were previously discoverable and available and
could have been presented at his hearing. Specifically, he contends that the postmark on
the envelope containing them postdated his hearing and, thereby, proves that they were
not available on October 19, 2006. (Petitioner’s Brief, at 4-6).
We reject this argument as meritless. Under the regulation, the date on which the
statements were mailed is irrelevant. A motion to reopen proceedings “shall not be
granted” unless it appears to the Board that the evidence offered “is material and was not
available and could not have been discovered or presented at the former hearing.” 8
C.F.R. § 1003.2(c)(1) (emphasis added). The Board could, without abusing its discretion,

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conclude that the statements and documents were discoverable prior to Jiata’s October
2006 hearing date; that is, that Jiata, had he taken reasonable steps, could have obtained
the statements concerning events which transpired in 2004 and 2005. Jiata’s hearing
testimony establishes that he had contact with his wife through her brother. He also had
contact with his daughters. Jiata did not address in his motion to reopen why he could not
have contacted the school earlier and obtained his daughters’ records in advance of his
hearing. Since there was contact with both his brother-in-law, Lobsang, and his
daughters, and with his wife through Lobsang, the Board had discretion to conclude that
Jiata could have obtained the materials in time for his October 2006 hearing. See
Ezeagwuna, 325 F.3d at 409.
In addition, Jiata did not address the Board’s concern that he failed to establish that
the school report, which only indicates that his daughters attended the school in
November of 2006, corroborated his claim that he was persecuted by Chinese authorities
in 2004 and 2005 because of their attendance. The school records submitted in support of
the motion to reopen failed to establish that his daughters attended a Tibetan school in
India during the relevant time period. See 8 C.F.R. § 1003.2(c)(1) (stating that a motion
to reopen shall not be granted unless the evidence offered is “material”); Abudu, 485 U.S.
at 104-05 (stating that the Board may deny a motion where the movant has failed to
establish a prima facie case for the underlying substantive relief, or failed to introduce
material evidence). Further, Jiata he did not show that the information in the 2007

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Country Report about the treatment of Tibetans in China differed in a material way from
the information contained in the 2005 Country Report. See id. Both reports, in fact,
provide similar information concerning the Chinese government’s serious human rights
abuses against Tibetans. Accordingly, the Board acted within its discretion in concluding
that reopening Jiata’s removal proceedings was not warranted. Doherty, 502 U.S. at 323;
Abudu, 485 U.S. at 104-05.
We will deny the petition for review.
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