Wei Zhang v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEI ZHANG, No. 19-72544
Petitioner, Agency No. A087-817-708
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Wei Zhang, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the agency’s
particularly serious crime determination. Avendano-Hernandez v. Lynch, 800 F.3d
1072, 1077 (9th Cir. 2015). We review for substantial evidence the agency’s
factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).
We deny in part and grant in part the petition for review, and we remand.
We do not consider the country conditions evidence Zhang references in his
opening brief that is not part of the administrative record. See Fisher v. INS, 79
F.3d 955, 963-64 (9th Cir. 1996) (en banc).
The agency did not abuse its discretion in determining Zhang’s conviction
under California Penal Code § 273.5 was a particularly serious crime that barred
him from eligibility for asylum and withholding of removal, where it applied the
appropriate factors to weigh the seriousness of the crime in a case-specific inquiry.
See Avendano-Hernandez, 800 F.3d at 1077 (“Our review is limited to ensuring
that the agency relied on the appropriate factors and proper evidence to reach [its]
conclusion.” (internal quotation marks and citations omitted)); see also 8 U.S.C.
§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). We do no reach
Zhang’s additional contentions as to his eligibility for asylum and withholding of
removal because the BIA did not deny relief on those grounds. See Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the court’s review is limited to the
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actual grounds relied upon by the BIA). Thus, Zhang’s asylum and withholding of
removal claims fail.
As to Zhang’s CAT claim, it appears the agency misstated the record when it
found there is no indication in the country conditions evidence that house church
members have been tortured while in detention. See Diaz-Reynoso v. Barr, 968
F.3d 1070, 1089 (9th Cir. 2020) (“CAT’s implementing regulations require the
agency to consider all evidence relevant to the possibility of future torture, and we
have reversed where the agency has failed to do so.” (internal quotation marks and
citations omitted)); Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir. 2011)
(indications of the agency’s failure to properly consider all of the relevant evidence
“include misstating the record.”). Thus, we grant the petition for review as to
Zhang’s CAT claim and remand for further proceedings consistent with this
disposition. See INS v. Ventura, 537 U.S. 12, 16-18, (2002) (per curiam).
Zhang’s removal is stayed pending a decision by the BIA.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW DENIED in part, GRANTED in part;
REMANDED.
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