Fang Zheng v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2943
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FANG ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A98-712-421
(U.S. Immigration Judge: Honorable Alberto J. Riefkohl)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 24, 2009
Before: SCIRICA, Chief Judge, JORDAN and STAPLETON, Circuit Judges.
(Filed: December 29, 2009)
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OPINION OF THE COURT
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PER CURIAM.
Fang Zheng, a native and citizen of the People’s Republic of China, petitions for
review of a decision entered by the Board of Immigration Appeals (“BIA”) denying her
motion to reopen removal proceedings. We will deny the petition for review.

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Zheng entered the United States without inspection in 2004 and reunited with her
husband, a Chinese national who remained in this country despite having been ordered
removed in 2002. Zheng herself was placed in removal proceedings, at which time she
conceded removability as an alien present without being admitted or paroled, and applied
for asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Zheng claimed that she and her husband had a daughter in 1999 who allegedly
remains in China in the care of in-laws. Zheng states that she evaded the authorities for a
short time after becoming pregnant again, but was ultimately found at her mother’s home
and forced to have an abortion, along with an IUD inserted, in May 2000. After coming
to the United States in 2004, Zheng allegedly had the IUD removed, and she and her
husband had another daughter, a United States citizen, in 2006. Zheng states that she
fears persecution in China on account of now having had a second child, purportedly in
violation of that country’s family planning policies.
After a hearing, the Immigration Judge (“IJ”) rejected the credibility of Zheng’s
testimony and denied relief. Among other things, the IJ noted that a written certificate
introduced by the husband at his removal proceeding to establish Zheng’s forced abortion
and IUD insertion was expressly rejected by the IJ in that proceeding as fraudulent.
Zheng was unable to authenticate the certificate at her own proceeding, and the IJ found
her testimony as to how she had obtained the certificate, and how it had wound up in her
husband’s possession for use in connection with his asylum claim, to be inconsistent and

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lacking in credibility. On September 15, 2008, the BIA dismissed Zheng’s appeal,
agreeing with the IJ that Zheng lacked credibility, and further finding that she did not
establish a well-found fear of persecution based on having had a second child while in the
United States.
Zheng timely filed a motion to reopen with the BIA, submitting what she claimed
was previously unavailable evidence to support her alleged fear of persecution, including
a letter from her mother-in-law and a certificate from a local village committee in Fujian
Province purporting to order that Zheng be sterilized in light of having had two children.
On June 12, 2009, the BIA denied the motion to reopen, holding that Zheng’s
submissions were insufficient to justify reopening the proceedings. With respect to the
purported notice from the local village committee and letters from family members, the
BIA found this evidence insufficient to meet Zheng’s burden of proof on a motion to
reopen, particularly in light of the IJ’s adverse credibility finding. The BIA noted that the
purported certificate was not authenticated “in any manner,” and that “it is well-known
that Fujian Province, the province from which the respondent comes, has a major problem
with false documents.” Zheng timely filed a petition for review in this Court from the
order denying her motion to reopen.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the denial of Zheng’s
motion to reopen. This Court reviews the denial of a motion to reopen for abuse of
discretion, affording “broad deference” to the agency’s decision. Ezeagwuna v. Ashcroft,

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325 F.3d 396, 409 (3d Cir. 2003). We will not disturb the BIA’s decision unless Zheng
shows that it was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580,
582 (3d Cir. 1994).
Zheng argues that the BIA abused its discretion because local officials have
ordered her sterilization. Zheng notes that she submitted materials indicating that her
child born in the United States will be considered a Chinese citizen in China, and that she
will be held in violation of family planning policy. She argues that the BIA erred in
failing to accept the authenticity of her sterilization certificate, which she claims is
supported by a letter from her mother-in-law, and failed to consider the import of her
background materials on Chinese law. Appellant’s Br. at 2-3.
After a review of the record, we cannot conclude that the BIA abused its discretion
in denying the motion to reopen. Given the IJ’s determination that Zheng’s testimony
lacked credibility, and given that Zheng and her husband had sought to introduce a
fraudulent document regarding her alleged abortion and IUD in her husband’s removal
proceeding, the BIA did not act unreasonably in expecting Zheng to authenticate the
purported sterilization certificate submitted in support of the motion to reopen. As the
BIA noted, however, the certificate was not authenticated “in any manner,” despite the
fact that Zheng claims that her mother-in-law recently obtained the certificate directly
from the local village committee. Zheng presumably could have obtained consular
authentication pursuant to 8 C.F.R. § 287.6, or authentication in some other form. While

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we have held that failure to authenticate under § 287.6 does not warrant “per se exclusion
of documentary evidence, and a petitioner is permitted to prove authenticity in another
manner,” Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004), Zheng, as noted, did not
authenticate in any manner. The unsworn letter from her mother-in-law regarding the
certificate was insufficient. Particularly in view of the fraudulent document previously
submitted, and the concern generally with fraudulent documents from Fujian Province,
the BIA did not err in rejecting the unauthenticated “certificate” that formed the core of
Zheng’s motion to reopen.
As to Zheng’s additional evidentiary submissions regarding China’s family
planning policies, none of Zheng’s materials post-dates the BIA’s final removal order,
and indeed there appears to be no reason why Zheng could not have submitted the
materials at the time of her hearing before the IJ. The BIA thus did not err in finding this
evidence insufficient to support a motion to reopen. Finally, Zheng had represented in the
hearing before the IJ that, upon her removal, she planned to leave her United States child
in the care of her mother, who resides here as a lawful permanent resident. The BIA
reasonably declined to revisit Zheng’s claimed fear of future persecution insofar as Zheng
sought to base the claim on a new, wholly contradictory assertion that she now intends to
return to China with her second child.
For the foregoing reasons, we will deny the petition for review.

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