Zheng v. Barr ( 2020 )


Menu:
  • 18-103
    Zheng v. Barr
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
    FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
    CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
    EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
    “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
    ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
    City of New York, on the 2nd day of October, two thousand twenty.
    Present:
    GUIDO CALABRESI,
    ROBERT A. KATZMANN,
    SUSAN L. CARNEY,
    Circuit Judges.
    MEI BIN ZHENG,
    Petitioner,
    v.                                                    No. 18-103
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
    Respondent.
    For Petitioner:                           Rebecca A. McCarthy, Esq., Ezequiel Hernandez
    PLLC, Queens, NY.
    For Respondent:                           Joseph H. Hunt, Assistant Attorney General; Kristin
    Moresi, Trial Attorney, Office of Immigration
    Litigation, United States Department of Justice,
    Washington, D.C.
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
    DECREED that the petition for review is GRANTED in part and DENIED in part.
    Petitioner Mei Bin Zheng, a native and citizen of the People’s Republic of China, seeks
    review of a December 15, 2017 decision of the Board of Immigration Appeals (“BIA”), in which
    the BIA affirmed a March 28, 2017 decision of an Immigration Judge (“IJ”) denying Zheng
    asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See
    In re Mei Bin Zheng, No. A205 304 862 (B.I.A. Dec. 15, 2017), aff’g No. A205 304 862 (Immig.
    Ct. N.Y. City Mar. 28, 2017). The BIA also denied Zheng’s motion to remand based on
    ineffective assistance of counsel. We assume the parties’ familiarity with the underlying facts,
    procedural history of the case, and issues on appeal.
    I.       Asylum, Withholding, and CAT Relief
    The BIA affirmed the IJ’s denial of asylum and withholding of removal based solely on
    the IJ’s determination that Zheng had failed to establish his identity, and by extension, his
    nationality. Although the IJ’s decision rested on additional grounds, because the BIA did not
    address them, “[w]e review the IJ’s decision as modified by the BIA, i.e., minus the arguments
    for denying relief” that the BIA rejected or did not address. Urgen v. Holder, 
    768 F.3d 269
    , 272
    (2d Cir. 2014) (per curiam); see Xue Hong Yang v. U.S. Dep’t of Justice, 
    426 F.3d 520
    , 522 (2d
    Cir. 2005). “The substantial evidence standard of review applies, and we uphold the IJ’s factual
    findings if they are supported by reasonable, substantial, and probative evidence in the record.
    By contrast, we review de novo questions of law and the BIA’s application of law to undisputed
    fact.” Yanqin Weng v. Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009). 1
    An applicant may be granted asylum only if he is a “refugee.” 
    8 U.S.C. § 1158
    (b)(1)(A).
    Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations,
    1
    emphases, footnotes, and citations are omitted.
    2
    An applicant for asylum bears the burden of proof in establishing his status as a refugee. See 
    id.
    § 1158(b)(1)(B)(i). “Refugee” is defined with respect to the relationship the applicant has to his
    country of nationality or last habitual residence:
    [A]ny person who is outside any country of such person’s nationality or, in the
    case of a person having no nationality, is outside any country in which such
    person last habitually resided, and who is unable or unwilling to return to, and is
    unable or unwilling to avail himself or herself of the protection of, that country
    because of persecution or a well-founded fear of persecution on account of race,
    religion, nationality, membership in a particular social group, or political
    opinion[.]
    
    8 U.S.C. § 1101
    (a)(42)(A). Therefore, “a petitioner’s nationality, or lack of nationality, is a
    threshold question in determining his eligibility for asylum.” Wangchuck v. Dep’t of Homeland
    Sec., 
    448 F.3d 524
    , 528 (2d Cir. 2006). An “agency’s finding that [a petitioner] failed to establish
    his nationality d[oes] not obviate the need to resolve conclusively [the petitioner’s] country of
    nationality and citizenship.” Urgen v. Holder, 
    768 F.3d 269
    , 273 (2d Cir. 2014) (emphasizing
    that “[a] finding with respect to the asylum applicant’s nationality is . . . necessary because
    without it as a reference, the agency cannot analyze an applicant’s claim of well-founded
    persecution”).
    While the BIA stated that Zheng failed to establish this threshold issue, barring him from
    asylum and withholding of removal, Zheng’s nationality was undisputed. The Notice to Appear
    charged him as removable as a native and citizen of China, and Zheng conceded that allegation
    among others in the Notice to Appear. The IJ relied on those allegations, and Zheng’s
    corresponding admissions, in finding him removable. Indeed, both the BIA and the IJ adopted
    those admitted allegations as a fact. See Admin. Record 4 (the BIA, referring to Zheng as a
    “native and citizen of China”); id. at 70 (the IJ, referring to Zheng as a “native and citizen of the
    People’s Republic of China”).
    In nevertheless finding that Zheng had failed to establish his identity and nationality, the
    3
    BIA relied in part on its precedential decision in In re O-D-, 
    21 I. & N. Dec. 1079
     (BIA 1998).
    However, in that case, the government disputed the authenticity of the applicant’s identification
    documents and the IJ made an adverse credibility determination against the applicant, finding
    that the applicant’s submission of fraudulent identification documents called the veracity of his
    testimony and other evidence into doubt. See id. at 1079, 1081–83. That is not the situation here.
    The IJ specifically found Zheng’s testimony credible, just not sufficiently persuasive to carry
    Zheng’s entire burden of proof. Zheng’s supposed failure to establish his identity was relevant
    only insofar as it went to his nationality, and, as discussed above, Zheng’s nationality was
    undisputed. Moreover, had Zheng failed to establish his nationality, the agency would still be
    required to make a determination as to his nationality or lack thereof. See Urgen, 768 F.3d at
    273. Even if he had no nationality, Zheng could establish eligibility for asylum from China as his
    last country of habitual residence prior to entering the United States. See Wangchuck, 
    448 F.3d at 529
    .
    The BIA also erred in finding Zheng’s alleged failure to establish nationality dispositive
    as to his claim for withholding of removal. While an alien is only eligible for asylum as to the
    country of nationality, withholding of removal requires no nationality determination. Instead, the
    relevant statutory provision mandates broadly that “the Attorney General may not remove an
    alien to a country if the Attorney General decides that the alien’s life or freedom would be
    threatened in that country because of the alien’s race, religion, nationality, membership in a
    particular social group, or political opinion.” 
    8 U.S.C. § 1231
    (b)(3)(A) (emphasis added). Given
    that an alien may be removed to additional countries beyond his country of nationality – for
    instance, his country of birth, a country where he has a residence, or any country that will accept
    him – withholding is therefore available as to the country of removal regardless of nationality.
    See 
    8 U.S.C. § 1231
    (b)(1)(C). Here, because Zheng was ordered removed to China, the agency
    4
    was required to consider the merits of his withholding claim as to that country regardless of
    whether Zheng had established Chinese nationality.
    In conclusion, we find that the BIA erred in affirming denial of Zheng’s applications for
    asylum and withholding of removal based on his purported failure to establish identity and
    nationality. We therefore remand to the BIA for further proceedings on each claim. Finally,
    while the BIA separately stated that Zheng failed to establish a CAT claim, it provided no
    explanation for that ruling; meanwhile, the IJ had denied CAT relief on the same grounds as
    asylum and withholding of removal. Accordingly, we also remand for further explanation of the
    denial of CAT relief. See Poradisova v. Gonzales, 
    420 F.3d 70
    , 77 (2d Cir. 2005) (“Despite our
    generally deferential review of IJ and BIA opinions, we require a certain minimum level of
    analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial
    review is to be meaningful.”).
    II.      Motion to Remand & Ineffective Assistance of Counsel
    Zheng also petitions for review of the BIA’s denial of his motion to remand based on
    alleged ineffective assistance of counsel. We review the BIA’s denial of a motion to remand for
    abuse of discretion. See Li Yong Cao v. U.S. Dep’t of Justice, 
    421 F.3d 149
    , 157 (2d Cir. 2005).
    To obtain remand based on ineffective assistance of counsel, a movant must establish that
    “counsel’s performance was so ineffective as to have impinged upon the fundamental fairness of
    the hearing.” Jian Yun Zheng v. U.S. Dep’t of Justice, 
    409 F.3d 43
    , 46 (2d Cir. 2005). This
    includes a showing that competent counsel would have acted otherwise and that that the
    petitioner was prejudiced by his counsel’s performance. See Rashid v. Mukasey, 
    533 F.3d 127
    ,
    131 (2d Cir. 2008). The BIA did not err in denying Zheng’s motion to remand based on
    ineffective assistance of counsel because he failed to establish prejudice stemming from the
    actions of either of his attorneys.
    5
    Zheng claims that his first attorney at Moslemi & Associates was ineffective because the
    attorney’s colleagues perpetrated immigration fraud. Zheng offers no evidence, however, that his
    specific attorney committed fraud or that there was any fraud in his case. Zheng also contends
    that his second attorney Michael Kamen failed to inquire about his sexual identity, and that his
    sexual orientation would have provided him another basis for asylum. Zheng’s affidavit,
    however, did not allege past persecution on account of his sexual orientation or that he feared
    future harm rising to the level of persecution. Zheng also argued that his second attorney failed
    to draw attention to his 2007 household register as evidence of identity before the IJ, but the IJ
    explicitly considered that document.
    For the foregoing reasons, the petition for review is GRANTED as Zheng’s claims for
    asylum, withholding of removal, and CAT relief, and DENIED as to Zheng’s motion to remand
    on ineffective assistance of counsel. The BIA’s decision is VACATED in relevant part and the
    case is REMANDED for further proceedings consistent with this order.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    6