SHWARTZ

Theodore N. Cox, Esq., [argued], New York, NY for Petitioner. Eric H. Holder, Jr., Esq., Stuart F. Delery, Esq., Thomas W. Hussey, Esq., Blair O'Connor, Esq., Glen T. Jaeger, Esq., Rachel L. Browning, Esq., [argued], United States Department of Justice, Washington, DC, for Respondent.
Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Fei Yan Zhu, a native and citizen of the People's Republic of China, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying her motion to reopen her removal proceedings pursuant to 8 C.F.R. § 1003.2. Because the BIA's opinion did not reflect meaningful consideration of much of the evidence that Zhu submitted in support of her motion, we will grant the petition for review, vacate the order denying the motion to reopen, and remand to the BIA for further proceedings.

I.

Zhu is from Changmen Village, Guantou Town, Lianjiang County, Fujian Province, China. She entered the United States in 1999 without proper documentation. During her interview with the Immigration and Naturalization Service (“INS”), she stated that she feared persecution because of her opposition to China's population control policies. The INS determined that she met the credible fear standard, and she was paroled into the United States for a hearing before an immigration judge (“IJ”) to determine her eligibility for asylum.

On February 15, 2000, Zhu appeared before the IJ, conceded her removability, and filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), based on a claim that she had been and/or would be persecuted for having resisted population control measures. At the hearing, Zhu testified that she had a heated exchange with birth control officials and that they tried to force her to wear an intrauterine device when they learned she and her boyfriend were living together. The IJ found Zhu's testimony lacked credibility, denied her application, and ordered her removed to China. The BIA affirmed the IJ's decision without an opinion.

In 2002, Zhu filed a timely motion to reopen, alleging that since the time of the IJ's decision she had married and given birth to a son, and that she would be forcibly sterilized if she returned to China. The BIA denied the motion, noting that Zhu only had one child, which was not in violation of Chinese population control policies, and that she had not shown that “a Chinese national becomes automatically subject to punitive birth control measures if she has returned with a child or children born outside China.” Appendix (“App.”) 1213.

In 2008, Zhu filed a second motion to reopen, alleging that she had given birth to two more children and that conditions had changed in China because the Chinese government now counted children born overseas when considering violations of its population control policies. She submitted, among other things, a notice from the Family Planning Office of Lianjiang County to Zhu's parents, indicating that Zhu must submit to sterilization upon her return to China, and a letter from her mother, noting that the officials had learned that Zhu had children. The BIA denied the motion because Zhu's documentation showed no material change in country conditions, but rather reflected “incremental increases in the enforcement of family planning policies in China that have been in existence for approximately 30 years.” App. 1146.

On January 14, 2013, Zhu filed a third motion to reopen, this time with voluminous documentation that she asserts demonstrates a “material change” in China's enforcement of its population control policies in her home region. See App. 11–1143. These documents purportedly come from the U.S. government, Chinese government websites, Chinese governmental entities or officials, and international media outlets. She contends that these documents show that the United States Department of State's May 2007 “China: Profile of Asylum Claims and Country Conditions” (the “2007 Profile”), which the BIA had previously relied upon concerning treatment of those who violate the population control policies, does not reflect current conditions in China. Among other things, Zhu asserts that these documents show that foreign-born children now count for family planning purposes and new programs have been implemented in her home province that more strictly enforce population controls. Zhu also provided an affidavit from an expert opining about the authenticity of four documents purporting to embody population control enforcement measures from Changle City, which is approximately thirty kilometers from Zhu's hometown of Guantou. On March 28, 2013, the BIA denied Zhu's motion to reopen, concluding that she had failed to establish a material change in country conditions and had not demonstrated a prima facie case for CAT relief. Zhu thereafter filed a petition for review.

II.

The BIA had jurisdiction under 8 C.F.R. § 1003.2 to review Zhu's motion to reopen, and we have jurisdiction to review the BIA's decision pursuant to 8 U.S.C. § 1252(a)(1). We review the denial of a motion to reopen for an abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) Thus, the BIA's ultimate decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003) (internal quotation marks omitted), and “will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 562 (internal quotation marks and citation omitted). Similarly, we review the BIA's evidentiary rulings deferentially. See Cheng v. Att'y Gen., 623 F.3d 175, 182 (3d Cir.2010).

III.

With limited exceptions, a motion to reopen must be filed within ninety days of the date of entry of a final administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain relief based on an untimely motion to reopen, Zhu had to provide material evidence of changed conditions in China that could not have been discovered or presented during the previous proceeding. See8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA denied Zhu's motion to reopen her removal proceedings because it found: (1) “[h]er evidence is not sufficient to establish a material change in circumstances or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitations for filing another late motion to reopen to apply for asylum,” and (2) she “has not demonstrated a prima facie case for protection under [CAT].” App. 6.

To determine if the BIA abused its discretion in finding that Zhu did not present evidence to establish a material change in country conditions, we must determine if the BIA meaningfully considered the evidence and arguments Zhu presented. Zheng v. Att'y Gen., 549 F.3d 260, 266 (3d Cir.2008). This does not mean that the BIA is required to expressly parse each point or discuss each piece of evidence presented, id. at 268, but “it may not ignore evidence favorable to the alien.” Huang v. Att'y Gen., 620 F.3d 372, 388 (3d Cir.2010). To fulfill this requirement, the BIA must provide an indication that it considered such evidence, and if the evidence is rejected, an explanation as to why it was rejected.

In this case, Zhu presented more than 85 documents, spanning over 1,000 pages. With little explanation, the BIA concluded that: (1) Zhu failed to authenticate documents from China; (2) documents from places other than Zhu's hometown or county do not establish she is likely to be persecuted; (3) her expert's opinion concerning the authenticity of four foreign documents was speculative; (4) evidence from components of the United States government did not show Zhu would be subjected to sterilization; and (5) she did not show that the 2007 Profile is now inaccurate or unreliable. We will examine the BIA's treatment of each category of evidence.

A. Foreign Government Documents

1. Authentication Generally

We first address the authentication of documents from foreign sources. Pursuant to 8 C.F.R. § 1287.6, official foreign records must be “evidenced by an official publication” or “certified by an officer in the Foreign Service of the United States, stationed in the foreign country where the record is kept.” Attempting to comply with this provision, Zhu's attorney sent each Chinese government document to the Consulate General of the United States in Guangzhou, China, and the Fujian Provincial Foreign Affairs Office, asking for assistance in authenticating the documents, but he received no replies.

Although failure to authenticate pursuant to 8 C.F.R. § 1287.6 does not result in automatic exclusion, Liu v. Ashcroft, 372 F.3d 529, 532 (3d Cir.2004), an unsuccessful effort to obtain such a certification does not excuse the proponent of the document from providing other grounds on which the BIA could find that a document is what it purports to be. Indeed, we have held that when an asylum seeker fails to comply with the certification procedure set forth in 8 C.F.R. § 1287.6 because of a “lack of cooperation from government officials in the country of alleged persecution,” that individual may “attempt to prove the authenticity ... through other means.” Lin v. Att'y Gen., 700 F.3d 683, 686–87 (3d Cir.2012) (citing Liu, 372 F.3d at 533). Proponents of evidence have an obligation to lay a foundation from which a factfinder can conclude the evidence is what it purports to be and that it is trustworthy. The BIA concluded that Zhu had not “established the authenticity of her foreign documents in another manner.” App. 5. Other than its analysis of the expert's opinion concerning a handful of local documents, the decision treats most of the foreign documents Zhu submitted similarly, regardless of their alleged source, and does not address whether other efforts were made to authenticate the documents and, if so, why they failed.

Although the Federal Rules of Evidence do not apply to immigration proceedings, Ezeagwuna, 325 F.3d at 405, evidence is admissible if it is probative and its use is fundamentally fair so as not to deprive the alien of due process. See, e.g., Lin v. U.S. Dep't of Justice, 459 F.3d 255, 268 (2d Cir.2006). Exclusion of evidence is exceptional. INS v. Lopez–Mendoza, 468 U.S. 1032, 1050, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). Nonetheless, the BIA can reject evidence that it finds to be untrustworthy or irrelevant and can accept evidence that has significant indicia of reliability.

These significant indicia of reliability may be shown in various ways. For example, proponents could turn to the Federal Rules of Evidence, even though they are not binding, for guidance. Here, some of the documents Zhu presented appear to come from Chinese government websites (indicated by “.gov.cn” domain names). App. 307–33. The Court of Appeals for the Seventh Circuit, considering the same documents and relying on Fed.R.Evid. 902, held that documents from Chinese government websites are “presumptively authentic if government sponsorship can be verified by visiting the website itself.” Chen v. Holder, 715 F.3d 207, 212 (7th Cir.2013). This is one example of how the Federal Rules of Evidence may provide an avenue to authenticate documents.

In addition, proponents may provide other grounds upon which the BIA could find the documents authentic. For instance, the proponent could provide information concerning how the document was obtained, identify the source of the information contained in the document, or show that there are consistencies between the information contained in the otherwise unauthenticated document and authenticated documents. A proponent could also offer an expert to testify about these topics and others, such as the use of government seals or the presence of official signatures with which the expert is familiar. The proponent could also offer forensic testing results or evidence from the United States Department of State concerning foreign documents. Cf. Liu, 372 F.3d at 534–35 & n. 9 (reminding the BIA that it may “choose to order forensic testing of the original [document] ..., take additional testimony, [and] seek guidance from State Department reports”). We emphasize that the burden to make this showing of authenticity as well as relevance rests with the proponent of the document. The BIA is not required to conduct an independent examination of a document where the proponent has provided no basis from which it could find the document is authentic or decipher its relevance. Thus, if a proponent fails to make such a showing, then it is within the BIA's discretion to decline to rely on such evidence. If such a showing is made, then the BIA must consider the evidence. See Zheng, 549 F.3d at 266.

2. Documents from Guantou Town and Lianjiang County

Turning to Zhu's evidence, we will first examine the BIA's treatment of documents from Zhu's hometown and county, which the BIA either ignored, rejected, or discounted. These documents purport to describe recent population campaigns to meet quotas for sterilizations and abortions. The Court of Appeals for the Seventh Circuit reviewed many of the same documents and noted that if the documents are genuine, “they constitute strong evidencethat harrowing practices are common in” her hometown and county. Ni, 715 F.3d at 628. The BIA did not specifically discuss these documents, so we do not know if it discounted them because they lacked authenticity or relevance, or for some other reason. Thus, we are unable to evaluate whether the BIA appropriately exercised its discretion.

Because the documents from Zhu's hometown and county that she presented, if authentic, may be probative and other avenues may be available to authenticate them, and because we are unable to discern why the BIA discounted them, we will remand to the BIA for it to consider whether Zhu has made a showing of authenticity and relevance concerning those documents. If the BIA determines that such a showing has been made, then it may give whatever weight it deems appropriate to that evidence in light of all of the other evidence presented. Liu, 372 F.3d at 534 n. 9 (“[T]he BIA may proceed on remand as it does with respect to any evidentiary question, evaluating issues of materiality, relevance, probity, and the general requirements of due process.”).

3. Documents from Fujian Province

We next examine the documents from neighboring areas within Zhu's home province, Fujian. Zhu offered documents that appear to come from Fujian's government website and other province level sources, as well as internal government documents from other towns and counties within Fujian, that purport to describe population control campaign details and policies. The BIA found documents outside Zhu's hometown and county inapplicable to Zhu, and hence irrelevant. The BIA's treatment of this evidence is inconsistent with its past decisions wherein it allowed a petitioner to establish eligibility for relief based upon evidence that the births of her children “violated family planning policies in that alien's local province, municipality, or otherlocally-defined area.” In re J–H–S–, 24 I. & N. Dec. 196, 197–98 (BIA 2007); cf. Shao v. Mukasey, 546 F.3d 138, 142 (2d Cir.2008) (noting the BIA acknowledges the local nature of family planning enforcement in China). Moreover, the BIA inexplicably found the information in these documents to be of no value yet found information in U.S. country reports describing activities in areas outside of Zhu's home region, as described below, worthy of consideration. Because the BIA did not explain why it did not consider Zhu's evidence from other areas within her home province of Fujian—some of which are within 30 kilometers of her hometown—and which may corroborate her claim, we will remand for the BIA to consider whether the documents from Zhu's province are authentic and relevant, and, if they are, why they do not warrant reopening the proceedings.

We will, however, not disturb the decision to reject the expert opinion that Zhu offered to authenticate four documents purportedly from the Chang Le City Population and Family Planning Leadership Group, Chinese Communist Party Chang Le City Shou Zhan Township Committee, and the Shou Zhan Township Population and Family Planning Leadership Group. Zhu's expert, Dr. Flora Sapio, opined that the documents were authentic based on their language, style, format, and internal coherence. She identified two of the documents as notices, and concluded, based on their bureaucratic language and the persons to whom they are addressed, that one is from an organ of the state and one is from the party committee of Shouzhan Township in Fujian Province. She then explained that the other two documents are likely internal memoranda that administrative law enforcement officials used or possibly distributed to residents, given their simple language and terse tone. The BIA discounted Dr. Sapio's expert opinion because it found it “speculates as to the credibility of the authors and the circumstances under which the documents were created.” App. 6.

As stated earlier, we review the BIA's evidentiary ruling deferentially. Cheng, 623 F.3d at 182. Under this deferential standard, we cannot say that the BIA abused its discretion in discounting the expert's opinion. Other than saying that she received the documents from Zhu's counsel, Dr. Sapio does not provide any information concerning how or from whom the documents were obtained. Moreover, while Dr. Sapio explained why the presence or absence of serial numbers, the paper size, headings, interlinear spaces, margins, main body of text, official seals, filing information, and classification level suggest that they are authentic documents from government entities, she provided no statements that show she is familiar with official seals or serial numbers used by the purported sources of these documents such that a factfinder could determine that the document comes from the entity associated with the seal. Thus, the BIA had no information upon which to determine the source of these four documents other than the linguistic analysis on which Dr. Sapio asked the BIA to rely. Unlike other evidence it inexplicably discounted, the BIA explained why it rejected reliance on the expert's opinion. This explanation showed that the BIA considered the documents and the opinion and found that it lacked a basis on which to conclude that the documents came from the entities listed on them. For these reasons, we will not disturb the BIA's decision not to rely upon Dr. Sapio's expert opinion.

B. U.S. Government Documents

Finally, we examine the BIA's treatment of documents from components of the U.S. government. In this case, there is no indication that the BIA misunderstood its authority to consider such documents, but it appears it did not give full consideration to their contents. The BIA found that the 2009 and 2010 Annual Reports of the Congressional–Executive Commission on China (“CECC”), the 2007 Profile, and State Department reports from 1994, 1995, 1998, 2004, and 2005 indicated that “social compensation fees, job loss or demotion, loss of promotion opportunity, expulsion from the party, destruction of property, and other administrative punishments are used to enforce [China's] family planning policy.” App. 5. The BIA then concluded that this evidence “is not sufficient to demonstrate that the respondent will be subjected to sterilization.” Id. While the BIA recited a number of social and economic actions that China takes to enforce its population control policies, it seemingly ignored statements in the 2009 and 2010 CECC Reports concerning “forced abortions” and “coerced abortions and sterilizations.” App. 111, 140, 142–43. Like our sister circuit, who criticized an identical BIA conclusion about enforcement methods, we too question “[w]hy the BIA found the [CECC] Reports' discussion of certain ‘administrative punishments' and coercive tactics to be persuasive, but [apparently] found the Reports' discussion of forced sterilizations and abortions in Fujian Province not to be persuasive....” Ni, 715 F.3d at 627. Moreover, the BIA's treatment of these reports is inconsistent with its precedent that requires a comparison of current country conditions with those that existed at the time of the hearing on the merits of the petition before the IJ. See In re S–Y–G, 24 I. & N. Dec. 247, 253 (BIA 2007). Because these reports materially bear on Zhu's claim and it appears that the BIA only considered parts of them, and in light of the BIA's duty to consider material evidence and explain why it does or does not support the position of a party, Zheng, 549 F.3d at 268, we will remand to the BIA for its full consideration of these reports.

In short, like the Seventh Circuit, we conclude that the BIA's treatment of the U.S. Government and foreign government evidence was “perfunctory,” Ni, 715 F.3d at 627, and, as a result, the BIA failed to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Id. at 631 (internal quotation marks and citation omitted); see also Chen v. Holder, 742 F.3d 171, 180–81 (4th Cir.2014) (remanding because the IJ and BIA failed to reconcile or explain why the 2009 CECC Report is “less persuasive” than the 2007 Profile); Zheng, 549 F.3d at 266 (holding that “the BIA must actually consider the evidence and argument that a party presents” (internal quotation marks and citation omitted)); Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir.2006) (holding that the BIA has “a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim,” and a “similar, if not greater, duty arises in the context of motions to reopen based on changed country conditions” (internal quotation marks and citations omitted)); Yang v. Gonzales, 427 F.3d 1117, 1122 (8th Cir.2005) ( “If an agency makes a finding of fact without mentioning or analyzing significant evidence, its decision should be reconsidered.”(internal quotation marks and citation omitted)).

IV.

Because the BIA did not meaningfully address many of the documents Zhu presented, we will remand to the BIA for a more thorough review and explanation as to whether Zhu's evidence is authentic and, if so, whether it establishes a material change in country conditions. We are not suggesting that the evidence is authentic or sufficient. Rather, we will remand for the BIA to meaningfully review the evidence, which may yield a different result or a further explanation for the BIA's decision.

For all of these reasons, we will grant the petition for review, vacate the order denying the motion to reopen, and remand the case to the BIA for further proceedings consistent with this opinion.