On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA No. A70-838-800) Immigration Judge: William Strasser. On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA No. A77-340-635) Immigration Judge: Donald Ferlise.
The opinion of the court was delivered by: Greenberg, Circuit Judge.
BEFORE: SLOVITER and GREENBERG, Circuit Judges, and IRENAS, District Judge.*fn1
These two matters come on before this Court on separate petitions for review of decisions and orders of the Board of Immigration Appeals ("BIA") brought by Jian Zhau Zheng and Zhi Yong Chen. Both petitioners are citizens of the People's Republic of China from Fujian Province who currently reside in the United States, and each is married with more than one child born in this country. In both cases the BIA rejected the petitioner's appeal from an immigration judge's denial of his application for asylum, following which each petitioner filed an unsuccessful motion with the BIA to reopen his removal proceedings.*fn2 These petitions for review of the denial of the motions for reopening followed. Significantly, each petitioner based his motion on allegations that there had been changed circumstances in China from those extant at the time of the denial of his application for asylum.
Inasmuch as the two cases concern similar questions of law and of fact and reach this Court following almost parallel procedural paths, we will address both petitioners' petitions in this consolidated opinion. For the reasons that we will discuss, we will vacate the BIA's denial of the petitioners' respective motions to reopen and remand the matters to the BIA for further proceedings. In doing so, however, we make clear that we do not suggest that we disagree with the results the BIA reached on the records before it as we predicate our holding solely on procedural deficiencies that we find existed in the BIA proceedings.
Zheng arrived in the United States on August 27, 1993. He married in New York on January 23, 1998, and he and his wife have three children, the first born on January 29, 1998, the second born on January 4, 1999, and the third born on June 21, 2000. On August 27, 1993, Zheng, who was represented by an attorney other than his attorney on this appeal, sought asylum. An immigration judge conducted a hearing on his application on March 10, 1997, but, based on Zheng's failure to appear at the hearing, denied his request for asylum and ordered his exclusion in absentia. Zheng asserts that he did not appear because his attorney did not inform him of the hearing date.*fn3 Moreover, he claims that he did not learn of the denial of his request for asylum until September 1997, when an application for renewal of his employment authorization was denied. Zheng appealed from the denial of asylum, but on December 18, 1997, the BIA denied the appeal as untimely.
On June 27, 2002, Zheng filed a motion with the BIA to reopen his case on the basis of his changed personal circumstances, namely, the birth of his three children in the United States. He claimed that "[u]nder the current recognized climate of coercive population control" in China if he returned to China he would be persecuted for having more than one child. App. at 177. He did not claim, however, that there had been a material change in circumstances in China with respect to population control between the time that he filed his asylum application and the time of his motion to reopen. On October 9, 2002, the BIA denied his motion to reopen and inasmuch as Zheng did not file a petition for review of that denial, no court of appeals has reviewed that denial and we, of course, do not review it now.
On August 18, 2006, Zheng filed a second motion to reopen his case, contending that he should be granted asylum because of changed circumstances in China by reason of its enhanced enforcement of its population control policies as compared to those at the time that the immigration judge and BIA denied his asylum application. Moreover, he argued that his counsel had been ineffective during his original asylum proceedings that an immigration judge had dismissed because of his failure to appear for his hearing. Zheng submitted several documents in support of his motion as evidence of those changed circumstances and filed a personal affidavit which stated:
In my recent phone contacts with my family and friends in China, I was told that in the past year, the government had increased the use of labor camp, forced abortions and sterilizations. I was also told that a couple is only allowed to have one child. Those who resist and violate the new law would not only be forced to undergo abortion operations or sterilization procedures, but also face criminal prosecution pursuant to the Population and Family Planning Law. What I heard is consistent with the 2005 County [sic] Report on China by the [State Department].
Id. at 55. Zheng further stated in his affidavit:
Such persecutions have done irreparable damage to many families of young couples. My neighbor Zhou Zheng is an example. [He] and his wife Lin, Hui ha[d] their first daughter several years ago,... and  secretly gave birth to their second daughter. Unfortunately, the government family planning officials found out and forced Zhou Zheng to undergo sterilization immediately on 04/10/2006. My neighbor Zheng, Qun is another victim. After his wife gave birth to [a boy and a girl]..., on Feb[.] 28, 2006, Zheng, Qun was forcibly sterilized by the family planning officials.
Id. at 55-56. Zheng also stated:
I requested my parents to inquire with the villager's committee in my hometown. My parents told me that the village officials were already aware that I had two children in the United States. An official letter issued by the villager committee in response to my inquiry stated that I was still considered  a citizen of China and had to undergo necessary family planning procedures with[in] one week once I return to China....
Id. at 56. Zheng also submitted what purports to be a letter from Changle City Shouzhan Town People's Government Family Planning Office ("Changle City letter") dated June 9, 2006, which states: "[a]lthough you are currently residing in the United States, you are still a citizen of the People's Republic of China who had three children, and therefore you will definitely be targeted to [sic] sterilization." Id. at 72.
In addition to his affidavit and the Changle City letter, Zheng submitted several documents describing what he claims are changed circumstances in China. These documents include:
(1) two reports by the State Department entitled "China--Country Reports on Human Rights Practices" ("Country Report") for 2004 and 2005 (issued in 2005 and 2006 respectively); (2) a State Department document entitled "Consular Information Sheet--China" ("Consular Information Sheet") dated May 29, 2003; (3) a report entitled "Congressional-Executive Commission on China--Annual Report" ("Commission Report") for 2005; (4) testimony by John Aird to Congress concerning China's family planning law from September 23, 2002; (5) testimony by Harry Wu to Congress on December 14, 2004; (6) a document entitled "Population and Family Planning Regulation of Fujian Province" ("Fujian Regulation") dated July 26, 2002; and (7) two newspaper articles from 2005. Inasmuch as these documents did not exist when he filed his original petition to reopen, he could not present any of them with that motion.
On June 21, 2007, the BIA denied Zheng's second motion to reopen his case, and on July 16, 2007, Zheng filed the petition now before us to review the ...