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Zhanling Jiang v. Eric H. Holder Jr

September 26, 2011

ZHANLING JIANG, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A095-446-775

The opinion of the court was delivered by: Pregerson, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted December 15, 2010-Pasadena, California

Before: Harry Pregerson, Kenneth F. Ripple,*fn1 and Susan P. Graber, Circuit Judges.

Opinion by Judge Pregerson

OPINION

Zhanling Jiang, a native and citizen of China, petitions for review of the Board of Immigration Appeals' (BIA) decision denying his applications for adjustment of status, asylum, withholding of removal, and protection under the Convention Against Torture. Jiang also appeals both the immigration judge's (IJ) denial of his motion for a continuance and the BIA's denial of his motion to remand to the IJ for reconsider-ation of his application for adjustment of status. We grant the petition as to Jiang's adjustment of status application and remand to the BIA for further proceedings.

I.

Substantial evidence does not support the IJ's finding, and the BIA's conclusion, that Jiang was married and thus ineligible for adjustment of status as the unmarried son of a United States citizen. See Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008). Jiang submitted two documents that were issued in China to establish that he was single: an "Affidavit of Single" issued by the China Family Planning Commission, and a notarial certificate indicating that there was no record of a marriage registration for Jiang found in the Marriage Registration Authority of Jiang's domicile. The IJ refused to accept those documents because they were not authenticated by consular certification through a United States consulate in China, in accordance with 8 C.F.R. § 287.6. The IJ also prohibited Jiang from authenticating the documents through his own testimony.

[1] But "[d]ocuments may be authenticated in immigration proceedings through any recognized procedure, such as those required by INS regulations or by the Federal Rules of Civil Procedure. The procedure specified in 8 C.F.R. § 287.6 provides one, but not the exclusive method." Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam) (internal quotation marks and citations omitted). Thus, the IJ erred by refusing to allow Jiang to authenticate the foreign documents through his own testimony. See Vatyan v. Mukasey, 508 F.3d 1179, 1183 (9th Cir. 2007) (holding that the IJ must consider a petitioner's testimony as evidence that is relevant to the issue of a document's authenticity). And the IJ also erred by refusing to accept as evidence the attestation in the Notarial Certificate without consular certification, in violation of Federal Rule of Civil Procedure 44(a)(2)(C)(ii) (permitting the lack of a foreign record "to be evidenced by an attested summary with or without a final certification").

[2] The documents that Jiang offered as proof of his unmarried status, had they been accepted into evidence, would have demonstrated that Jiang is the unmarried son of a United States citizen and is, therefore, eligible for adjustment of status. See 8 U.S.C. §§ 1255(a), 1153(a)(1). Thus, substantial evidence does not support the IJ's finding to the contrary.

II.

The IJ also abused her discretion by denying Jiang's motion for a continuance, and the BIA erred in upholding the denial. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We weigh four factors to determine whether the BIA has abused its discretion in denying a continuance: 1) the importance of the evidence, 2) the unreasonableness of the immigrant's conduct, 3) the inconvenience to the court, and 4) the number of continuances previously ...


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