Zheng, et al v. Holder
Filing
FILED OPINION (MARY M. SCHROEDER, SIDNEY R. THOMAS and RONALD M. GOULD) Petition for review GRANTED in part and DENIED in part. Each party shall bear its own costs.Judge: MMS Authoring, FILED AND ENTERED JUDGMENT. [7742468] [06-75258, 08-71663]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAO FEI ZHENG, aka Eddie Zheng,
Eddy Zheng,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.
XIAO FEI ZHENG, aka Eddie Zheng,
Eddy Zheng,
Petitioner,
v.
ERIC H. HOLDER JR.,* Attorney
General,
Respondent.
No. 06-75258
Agency No.
A038-049-471
No. 08-71663
Agency No.
A038-049-471
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
San Francisco, California—December 9, 2010
Filed May 6, 2011
* Eric H. Holder Jr. is substituted for his predecessor Michael B.
Mukasey as Attorney General of the United States. See Fed. R. App. P.
43(c)(2).
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ZHENG v. HOLDER
Before: Mary M. Schroeder, Sidney R. Thomas, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Schroeder
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ZHENG v. HOLDER
COUNSEL
Zachary Nightingale, San Francisco, California, for petitioner
Xiao Fei Zheng.
Sarah Maloney, Department of Justice, Washington, D.C., for
respondent Eric H. Holder Jr., Attorney General.
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OPINION
SCHROEDER, Circuit Judge:
Petitioner Xiao Fei “Eddy” Zheng, a native and citizen of
China, petitions for review of two final orders of the Board of
Immigration Appeals (BIA). In the first, the BIA denied Petitioner relief under former § 212(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(c), and denied Petitioner
protection under the Convention Against Torture (CAT). In
the second, the BIA denied Petitioner’s motion to reopen his
CAT claim based on alleged changed country conditions, and
refused to sua sponte reopen Petitioner’s application for
§ 212(c) relief to consider Petitioner’s newly acquired equities. We grant the petition for review with respect to the
denial of § 212(c) relief and therefore do not reach the BIA’s
denial of a sua sponte reopening of Petitioner’s § 212(c) proceedings. We deny relief on the CAT claims.
This case is unusual in that the Petitioner was convicted at
the age of sixteen of very serious crimes, served nineteen
years in prison followed by immigration detention, yet demonstrated, beyond his own rehabilitation, a genuine desire and
commitment to prevent youth from following in his criminal
footsteps. Petitioner performed substantial service to the community, through his youth work, leading to a grant of parole
by the California Board of Prison Terms, and he continued
such work while in immigration proceedings.
The dispositive issue in this case is whether the BIA should
have considered Petitioner’s value and service to the community in assessing all of the relevant concerns bearing on his
eligibility for § 212(c) relief. This court has consistently
emphasized that in considering eligibility for § 212(c) relief,
the BIA must consider all relevant circumstances, and the
BIA itself has recognized that such circumstances include
value and service to the community. Because the BIA in this
case did not indicate that it had considered Petitioner’s value
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and service to the community, we grant the petition for review
with respect to Petitioner’s application for § 212(c) relief and
remand for consideration of all relevant factors.
I.
Factual Background
Petitioner was admitted to the United States as a lawful permanent resident in November of 1982. He is married to a
United States citizen. His mother, father, sister, and brother
are also United States citizens.
In 1986, at the age of sixteen, Petitioner was convicted pursuant to a California plea agreement of criminal offenses
involving kidnaping, robbery, and a firearm violation. He was
sentenced as an adult and was incarcerated for 19 years.
While incarcerated, among many other activities, Petitioner
learned English, obtained his GED, earned an Associate of
Arts Degree in Liberal Arts, co-facilitated a course entitled
“Alternatives to Violence,” developed a curriculum targeting
at-risk immigrant teenagers, currently being used by community service providers in Northern California, and developed
a business plan for a non-profit agency.
Petitioner applied for parole from prison on the basis of his
extraordinary rehabilitation and positive equities. He supported his application with a letter of family support if he
were removed to China. Petitioner was released from prison
on parole in 2005 and was placed in removal proceedings
immediately thereafter.
Since his release from prison and subsequent immigration
detention, Petitioner has continued to engage in violenceprevention work in the immigrant and youth communities of
Northern California working as Case Manager and later as
Project Coordinator for the Community Response Network —
Asian Pacific Islanders. Given Petitioner’s efforts to prevent
other young people from engaging in criminal activity, Petitioner won the support of community leaders, politicians, and
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members of the law enforcement community who wrote letters of support to the immigration court on Petitioner’s behalf.
II.
Procedural History
Petitioner was placed in immigration detention following
his release from prison and charged with removability for
having been convicted of an aggravated felony crime of violence, an aggravated felony theft offense, and a firearms
offense. The Immigration Judge (IJ) found Petitioner removable on all three grounds. The IJ then concluded that Petitioner’s case did not present exceptional circumstances and
denied Petitioner’s application for § 212(c) relief and adjustment of status. The IJ also denied relief under CAT on the
ground that Petitioner’s claims were speculative or insubstantial. The IJ reasoned that because of the financial and social
support Petitioner could expect from his relatives, if removed
to China, Petitioner lacked the vulnerable circumstances he
claimed would make him a likely torture victim.
Petitioner appealed to the BIA, which found him “deportable as charged” and dismissed his appeal. Citing In re Marin,
16 I. & N. Dec. 581 (BIA 1978), abrogated on other grounds
by In re Edwards, 20 I. & N. Dec. 191 (BIA 1990), the BIA
noted Petitioner’s rehabilitation but concluded that Petitioner
had not “identified unusual or outstanding equities sufficient
to overcome his serious criminal conviction” to obtain
§ 212(c) relief. The BIA did not mention Petitioner’s service
work for youth in the community. The BIA also found “no
reversible error” in the IJ’s denial of CAT relief and held that
the IJ’s finding regarding the expected support from Petitioner’s family, if Petitioner were removed to China, “was not
clearly erroneous.” Petitioner timely filed a petition for
review, No. 06-75258, of the BIA’s order dismissing his
appeal.
Petitioner then filed a motion to reopen with the BIA alleging changed country conditions and newly acquired equities.
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The BIA denied the motion finding the changed country conditions immaterial to Petitioner’s case and concluding that the
newly acquired equities did not constitute exceptional circumstances warranting reopening. Petitioner filed a timely petition
for review, No. 08-71663, of the BIA’s order denying his
motion to reopen. We consolidated the two petitions for
review. See 8 U.S.C. § 1252(b)(6).
III.
The BIA failed to consider all relevant factors to
determine Petitioner’s eligibility for § 212(c) relief.
Petitioner contends that the BIA erred as a matter of law in
denying his application for a waiver of inadmissibility under
§ 212(c) because it failed to conduct a complete, individualized, and reasoned analysis of the equities and adverse factors
bearing on Petitioner’s application. Specifically, Petitioner
contends that the BIA ignored the extensive evidence presented to demonstrate his value and service to the community.
We have jurisdiction to decide petitions for review brought
by an alien who is removable for having committed an aggravated felony or a firearm violation when the petition for
review presents a constitutional issue or question of law. See
8 U.S.C. § 1252(a)(2)(D) (“Nothing . . . shall be construed as
precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate
court of appeals . . . .”); see also Anaya-Ortiz v. Holder, 594
F.3d 673, 676 (9th Cir. 2010) (“[W]e retain jurisdiction to
review questions of law raised upon a petition for review.”
(citation and quotation marks omitted)).
[1] Section 212(c) provides relief from removal, at the discretion of the Attorney General, to permanent residents who
pled guilty to crimes prior to 1996. INS v. St. Cyr, 533 U.S.
289, 294-98 (2001). Although Congress repealed § 212(c) as
part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, the Supreme Court ruled in St.
Cyr that permanent residents who pled guilty to crimes prior
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to the repeal could still apply for § 212(c) relief if they would
have been eligible at the time of their plea. Id. at 326.
[2] This court has repeatedly emphasized that the BIA
abuses its discretion when it fails to consider all favorable and
unfavorable factors bearing on a petitioner’s application for
§ 212(c) relief. See Rashtabadi v. I.N.S., 23 F.3d 1562, 1571
(9th Cir. 1994) (“The failure to consider an important factor
or to make a record of considering it constitutes an abuse of
discretion.”); see also Vargas-Hernandez v. Gonzales, 497
F.3d 919, 923 (9th Cir. 2007) (“The BIA or the IJ decides
whether an applicant is entitled to a favorable exercise of
agency discretion on a case by case basis by taking into
account the social and humane considerations presented in the
applicant’s favor and balancing them against the adverse factors that evidence the applicant’s undesirability as a permanent resident.”) (citations and quotation marks omitted);
Dragon v. INS, 748 F.2d 1304, 1306 (9th Cir. 1984) (explaining that the BIA is “required to weigh all factors presented,
both favorable and unfavorable”). There are no rigid requirements beyond the need for comprehensive consideration. See
Marin, 16 I. & N. Dec. at 584 (BIA 1978) (explaining that no
“inflexible test” has been adopted, that “the record as a
whole” must be reviewed, and that the basis for the decision
“must be enunciated in [the] opinion”).
[3] Consideration of all relevant factors includes taking
into account both negative and positive circumstances relevant to each Petitioner. The positive factors to be considered
include, among others, ties to this country, evidence of hardship, and important to this case, value and service to the community. More than thirty years ago, the BIA listed the
following as positive factors: “family ties within the United
States, residence of long duration in this country (particularly
when the inception of residence occurred while the [petitioner] was of young age), evidence of hardship to the [petitioner] and family if deportation occurs, service in this
country’s Armed Forces, a history of employment, the exis-
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tence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a
criminal record exists, and other evidence attesting to a [petitioner’s] good character (e.g., affidavits from family, friends,
and responsible community representatives).” Id. at 584-85
(emphasis added).
[4] In this case, the BIA failed to consider all of the positive factors bearing on Petitioner’s application for § 212(c)
relief because it did not consider his value and service to the
community. It found that the Petitioner’s more than twodecade-old conviction for multiple crimes was a negative factor that could not be overcome “absent truly outstanding
countervailing equities.” The BIA went on to recite some
favorable factors, but dismissed their significance because of
the criminal conviction, and did not mention Petitioner’s work
with youth. The BIA said that the “principal equities
advanced by [Petitioner] . . . are his marriage to a United
States citizen, which occurred during the course of these proceedings; his lengthy residence in the United States, nearly all
of which occurred during his incarceration; and his commendable rehabilitation during imprisonment.” The BIA also noted
that Petitioner “has no children” and that his parents and siblings do “not depend on him, economically or otherwise.” It
concluded that Petitioner had not “identified unusual or outstanding equities sufficient to overcome his serious criminal
conviction.”
[5] The BIA made no mention of the substantial evidence
presented by Petitioner to demonstrate his efforts to prevent
other youth from following in his criminal footsteps. Some of
this work led to his parole from prison. Petitioner correctly
contends that the BIA failed to consider all relevant factors
when making its § 212(c) determination. Leaders of community organizations wrote to the immigration court attesting to
Petitioner’s work inside and outside of prison. See Letter from
Jake McGoldrick, Member of Bd. of Supervisors of the City
and Cnty. of S.F. (Apr. 21, 2005) (“Mr. Zheng has . . . proven
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that he can make positive contributions to society”); Letter
from Reverend Norman Fong, Program Dir. of Chinatown
Cmty. Dev. Ctr. (Apr. 7, 2005) (“There is no doubt that Eddy
can be an asset to the community. I work in this community
every single day—the same community where Eddy committed his crime as a 16-year-old—and I know that we need
Eddy working with us. With his invaluable skills and experience, he is in an incredible position to steer other young people from following a path to prison. He was in the same
situation as many of our youth today.”); Letter from Art Calderon, Cal. State Prison Warden (Nov. 19, 1998) (“Mr. Zheng
is currently the Vice Chairman of SQUIRES . . . [a] program
designed to help and counsel juvenile delinquents and troubled youths.”); Letter from Deacon George A. Salinger (Apr.
11, 2005) (“Although Eddie is not Catholic, he was an active
participant in the Catholic Chapel. He was a member of the
Choir as well as a very strong influence on so many of the
men, with whom he interacted.”); Letter from Jane Kim,
Youth Program Dir. (Apr. 12, 2005) (“I learned about
[Eddy’s] case four years ago when I discovered an incredibly
valuable curriculum that Eddy Zheng wrote for at-risk youth
while he was incarcerated in San Quentin. It was a curriculum
that I ended up using in my program.”). Thus, Petitioner provided ample evidence of his community involvement and his
value to society. See Marin, 16 I. & N. Dec. at 585 (listing
“value and service to the community” as a positive factor).
[6] Under the controlling law, the BIA was required to
consider Petitioner’s value and service to the community as a
factor in Petitioner’s application for § 212(c) relief. The
BIA’s failure to consider or even mention such a significant
factor in the face of such a substantial showing constitutes
abuse of discretion. Rashtabadi, 23 F.3d at 1571 (“The failure
to consider an important factor or to make a record of considering it constitutes an abuse of discretion.”). This case must
therefore be remanded so that the BIA can evaluate the
unusual nature of the record in this case. Dragon, 748 F.2d at
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1307 (remanding to the BIA “with instructions to evaluate
expressly all relevant factors presented in the petition”).
The government points to the BIA’s reference to Petitioner’s “commendable rehabilitation during imprisonment” and
argues it encompasses his service to youth while in prison and
during the course of this proceedings. Rehabilitation would
include his learning English, obtaining his GED and associates degree, his having a good disciplinary record in prison,
and his lack of a subsequent criminal record. See Rashtabadi,
23 F.3d at 1571 (explaining that evidence of rehabilitation
includes attending GED and vocational educational classes as
well as the absence of subsequent criminal conduct). Rehabilitation, however, is not the same as value and service to the
community. As the BIA said in Marin, rehabilitation is a factor different from value and service to the community. 16 I.
& N. Dec. at 585. The BIA must take both rehabilitation and
value and service to the community into account when relevant. So far as we can tell from the BIA decision, Petitioner’s
community service and work with youth was not considered.
The evidence of Petitioner’s value and service to the community was relevant in this case, so we remand for the BIA to
consider it. See Dragon, 748 F.2d at 1307.
IV.
The evidence does not compel a finding that Petitioner would be tortured if returned to China.
Petitioner contends that the BIA erred in upholding the IJ’s
determination that Petitioner failed to demonstrate that it was
more likely than not that he would be tortured if returned to
China. Petitioner claims eligibility for CAT relief due to his
status as a convicted criminal and deportee, his possible future
status as a returned resident from the United States without
strong family support, and his outspoken nature.
[7] We have jurisdiction to review the BIA’s denial of
CAT relief when such relief is denied on the merits. See
Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007)
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(“[W]hen an IJ does not rely on an alien’s conviction in denying CAT relief and instead denies relief on the merits, none
of the jurisdiction-stripping provisions . . . apply to divest this
court of jurisdiction.” (citations omitted)). To receive relief
under CAT, Petitioner has the burden of showing that he “is
more likely than not to be tortured in the country of removal.”
8 C.F.R. § 1208.16(c)(4); see Nuru v. Gonzales, 404 F.3d
1207, 1216 (9th Cir. 2005) (same). In order for this court to
reverse the BIA with respect to a finding of fact, the evidence
must compel a different conclusion from the one reached by
the BIA. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992) (“To reverse . . . we must find that the evidence not
only supports that conclusion, but compels it . . . .” (emphasis
in the original)).
[8] The IJ found that Petitioner would have the support of
his family if returned to China. The IJ said that “because of
the economic and social support that the respondent can
expect from his family” Petitioner could not show that he is
more likely than not to be tortured if returned to China. This
finding, as the BIA recognized, is supported by a letter from
a member of Petitioner’s family written to the California
Board of Prison Terms urging Petitioner’s parole and discussing Petitioner’s secure future in China. Petitioner argues that
he can no longer rely on the support from his family because
the job referred to in the letter is no longer available and
because the family member in China has moved. He claims
that lacking family or friends that he can rely on in China he
is particularly vulnerable to torture.
[9] Yet, the claims of possible torture remain speculative.
The IJ found “insufficient evidence in the record to show by
a clear probability that the fact of a serious felony conviction
would cause [Petitioner] to be incarcerated and tortured in
China.” The BIA agreed. The IJ also found speculative the
claim that Petitioner would likely be tortured in China. In his
petition for review before this court, Petitioner does not challenge those findings and the record does not compel reversal.
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Instead, Petitioner relies on his expert’s opinion testimony
about the likelihood of torture. That opinion, however, was
not supported by the record. As the IJ explained: “It is clear
that [Petitioner’s expert] testimony is based on the assumption
that [Petitioner] will be in a remote village with no family. If
[Petitioner] is in a large city and he has adult relatives . . . to
call on, [the expert’s] opinions lose much of their force.” The
record supports this observation. A member of his family testified that Petitioner has adult relatives and family friends living in China who would be there to help if Petitioner needed
any assistance. The evidence thus belies Petitioner’s contention that he would face torture if he returned to China.
V.
The BIA did not abuse its discretion in denying Petitioner’s motion to reopen his application for CAT
relief.
Petitioner next contends that the BIA abused its discretion
in denying his motion to reopen his application for CAT relief
based on changed country conditions. He contends that the
materials he submitted established that there have been
increases in persecution of dissidents and that as a result he
is likely to be tortured. Petitioner also contends that the BIA
failed to review the record as a whole.
[10] To prevail on a motion to reopen, Petitioner must
show that there is a “reasonable likelihood” that he will meet
the statutory requirements to obtain eligibility for relief under
CAT, namely that he is more likely than not to be tortured in
the country of removal. Malty v. Ashcroft, 381 F.3d 942, 947
(9th Cir. 2004); 8 C.F.R. § 1208.16(c)(4). Additionally, we
have held that although the BIA “has broad discretion in ruling on a motion to reopen, it must show proper consideration
of all factors, both favorable and unfavorable, in determining
whether to grant a motion to reopen.” Toufighi v. Mukasey,
538 F.3d 988, 993 (9th Cir. 2008).
[11] The record shows that the BIA diligently listed, in a
page-long paragraph, all the materials Petitioner submitted in
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support of his application and discussed why the evidence
was “not persuasive,” was speculative, or was “of limited relevance.” Thus, the BIA did not abuse its discretion in denying
Petitioner’s motion to reopen.
VI.
Conclusion
We GRANT the petition for review with respect to Petitioner’s application for § 212(c) relief and REMAND for
consideration of all relevant factors. We DENY the petition
for review with respect to Petitioner’s CAT claim and with
respect to Petitioner’s motion to reopen based on claimed
changed country conditions.
Petition for review GRANTED in part and DENIED in
part.
Each party shall bear its own costs.
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