Zhao v. Holder

The Board of Immigration Appeals abuses its discretion in deciding whether to grant or deny a motion to reopen an application for asylum when it applies an incorrect legal standard and does not adequately consider the substantial evidence submitted.

The Board of Immigration Appeals (“BIA”) denied Yan Rong Zhao’s (“Zhao”) motion to reopen her application for asylum. The BIA asserted that Zhao had provided evidence showing she would be subject to persecution for violating China’s family planning policy. Zhao presented evidence to the BIA showing she would undergo persecution and mandatory sterilization if required to return to China through providing a notice from her town’s family planning office stating the consequence for violating the family planning policy and an affidavit from her brother further explaining forced sterilization for violating the policy. The Ninth Circuit held that BIA improperly rejected this evidence finding that Zhao had not produced an original document or specific evidence of her town’s local policy and enforcement. However, Zhao’s evidence was improperly rejected because she was never required to produce an original document or town specific evidence. The BIA attempted to shift its burden of proof requirements, which was an abuse of its discretion. In order for Zhao’s motion to be reopened, she was only required to present evidentiary material to support the facts. The BIA is to consider that evidence in its entirety, and not to judge each piece of evidence individually. Although Zhao provided substantial evidence to the BIA supporting her motion to reopen, the BIA did not properly consider it. PETITION GRANTED. REMANDED.