Zheng v. Barr ( 2020 )

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
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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
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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.
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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
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