Occasionally, I run across an unpublished case that I think is worth blogging about. This week, the Third Circuit dismissed an appeal stemming from a decision by the Board of Immigration Appeals (BIA) to deny Jin Long Zhang's motion to reopen his removal proceedings based on changed country conditions in China that related to the likelihood that he be persecuted as a practicing Catholic. Although the Third Circuit ultimately determined that the BIA did not abuse its discretion, it expressed significant reservations about the BIA's analysis.
First, the court noted that the BIA’s analysis of the Religious Freedom Report was troublesome, as portions of the report that supported Zhang's option appeared to have been ignored. "For instance, the BIA failed to address a portion of the Religious Freedom Report that indicates that religious adherents have been 'harassed, detained, arrested, or sentenced to prison . . . for activities . . . related to their religious beliefs and practice.' This statement, among others, appears to directly relate to and support Zhang’s claim of changed country conditions in China."
Second, the BIA attempted to rely on the adverse credibility determination rendered in Zhang's removal proceedings to discredit the evidence submitted in support of his motion. The court was troubled by this, as Zhang's original asylum claim was based on a different ground (resistance to a coercive population control policy) than the one supporting his motion to reopen (religion).
Third, the court criticized the BIA's treatment of news articles supporting Zhang's motion to reopen, noting that "the BIA did not appear to consider these news articles at all, and, if they were considered, there was no explanation provided for why they were rejected." The court stated that in other circumstances, this could be ground for a remand.
For those attorneys frustrated by an adjudicator's apparent disregard of supporting evidence for no reason, this decision may provide some excellent arguments on appeal.
The full text of Zhang v. Att'y General can be found here: http://www2.ca3.uscourts.gov/opinarch/134504np.pdf