Zuo Zhang v. Loretta E. Lynch , 628 F. App'x 474 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ZUO CHEN ZHANG, No. 12-71269
Petitioner, Agency No. A075-614-733
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 3, 2015**
Pasadena, California
Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,*** Chief
District Judge.
Zuo Chen Zhang petitions for review of the Board of Immigration Appeals’
(BIA) order (1) dismissing his appeal from the immigration judge’s (IJ) denial of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John R. Tunheim, Chief District Judge for the U.S.
District Court for the District of Minnesota, sitting by designation.
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his application for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT); and (2) denying his motion to remand. We
deny Zhang’s petition in part and dismiss it in part.
1. We need not decide whether the REAL ID Act of 2005 applies here. The
BIA decided the case, in the alternative, under both pre- and post-REAL ID Act
standards. Even under pre-REAL ID standards, Zhang has not established that he
is entitled to relief.
2. The BIA did not abuse its discretion when it determined that Zhang
committed a “particularly serious crime” that renders him ineligible for asylum.
See 8 U.S.C. § 1158(b)(2)(A)(ii); Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th
Cir. 2013). An asylum applicant who has been “convicted of an aggravated felony
shall be considered to have been convicted of a particularly serious crime.” 8
U.S.C. § 1158(b)(2)(B)(i). A “crime of violence . . . for which the term of
imprisonment [is] at least one year” constitutes an aggravated felony. Id.
§ 1101(a)(43)(F).
Zhang’s 2003 conviction for the willful infliction of corporal injury, in
violation of California Penal Code § 273.5(a), is categorically a “crime of
violence.” Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083–86 (9th Cir. 2010).
Although Zhang was originally sentenced to 364 days’ imprisonment, he was later
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sentenced to three years’ imprisonment due to a probation violation. That term of
imprisonment renders his 2003 conviction an aggravated felony. See United States
v. Jimenez, 258 F.3d 1120, 1125–26 (9th Cir. 2001). Accordingly, Zhang’s 2003
aggravated felony conviction is a “particularly serious crime” that disqualifies him
for asylum relief.
3. We lack jurisdiction to decide whether Zhang is eligible for withholding
of removal. Zhang contends that the IJ’s “particularly serious crime”
determination is erroneous because the IJ did not address the In re Frentescu
factors. He did not, however, raise this argument on appeal to the BIA. His
“particularly serious crime” claim with respect to withholding of removal is
unexhausted and therefore falls outside our jurisdiction. See Abebe v. Mukasey,
554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam).
4. Substantial evidence supports the BIA’s determination that Zhang is
ineligible for CAT relief. Assuming, as the BIA did, that Zhang provided credible
testimony, Zhang failed to meet his burden of proving that he more likely than not
would be tortured because of his religious beliefs upon returning to China. Zhou v.
Gonzales, 437 F.3d 860, 871 (9th Cir. 2006); Zhang v. Ashcroft, 388 F.3d 713, 721
(9th Cir. 2004) (per curiam).
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5. The police report concerning Zhang’s 2003 conviction—which relies on
evidence gathered from witness interviews conducted in Mandarin—did not
require a certificate of translation to be admissible, as the report was written in
English. See Morales Apolinar v. Mukasey, 514 F.3d 893, 898 n.7 (9th Cir. 2008).
6. Zhang contends his due process rights were violated when the BIA
reopened the proceedings before giving him an opportunity to file a supplemental
response in opposition to the government’s motion to reopen. But Zhang did file a
response in opposition to the motion, and he presented his arguments before the IJ
granted the government’s motion to reopen. Zhang has also failed to demonstrate
how he was prejudiced by the denial of his request to file a supplemental response.
See Dent v. Holder, 627 F.3d 365, 373 (9th Cir. 2010).
7. The government was not precluded from charging Zhang with
removability as an aggravated felon in the reopened proceedings. The issue of
whether Zhang’s 2003 conviction rendered him ineligible for relief was not
adjudicated on the merits during the earlier proceedings, as those proceedings were
terminated on procedural grounds.
8. The BIA properly determined that the government did not engage in
affirmative misconduct. Zhang claims that the government charged him with
removability despite already knowing that he had been granted conditional
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derivative asylum. Zhang has failed to prove that the government’s conduct
exceeded mere negligence, see Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir.
2007), or that the alleged wrongful act caused him to suffer a serious injustice, see
Perez-Mejia v. Holder, 663 F.3d 403, 417 (9th Cir. 2011), as amended.
9. The BIA did not abuse its discretion when it denied Zhang’s motion to
remand. See Movsisian v. Ashcroft, 395 F.3d 1095, 1097–99 (9th Cir. 2005).
Motions to remand are held to the same formal requirements as motions to reopen.
Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987). Accordingly, the BIA can
deny a motion to remand because of the movant’s failure to present new evidence
that was previously unavailable. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th
Cir. 2010). Zhang contends that the BIA should have remanded his proceedings
due to his introduction of a law review article. See Jennifer L. Zegel, Bloody
Persecution: Plight of the Falun Gong, 9 RUTGERS J.L. & RELIGION 8 (2007).
Zhang has not demonstrated how the article, published four years before the start
of his reopened proceedings, was previously unavailable.
PETITION DENIED IN PART and DISMISSED IN PART.