Xiao Fei Zheng v. Holder

Citations: 644 F.3d 829; 2011 WL 1709849Docket: 06-75258, 08-71663

Court: Court of Appeals for the Ninth Circuit; May 6, 2011; Federal Appellate Court

Original Court Document: View Document

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Petitioner Xiao Fei "Eddy" Zheng, a native of China, seeks review of two final orders from the Board of Immigration Appeals (BIA). The BIA denied his request for relief under former 212(c) of the Immigration and Nationality Act and protection under the Convention Against Torture (CAT). Additionally, the BIA rejected Zheng's motion to reopen his CAT claim due to alleged changes in country conditions and declined to sua sponte reopen his application for 212(c) relief despite his newly acquired equities.

The court grants the petition for review regarding the denial of 212(c) relief, emphasizing that the BIA failed to consider Zheng's significant contributions to the community and his rehabilitation efforts, which include extensive educational achievements and youth outreach during and after his incarceration. The court denies relief on the CAT claims and remands the case for the BIA to reassess Zheng's eligibility for 212(c) relief, ensuring that all relevant factors, including his community service, are evaluated. Zheng, who was admitted as a lawful permanent resident in 1982, was convicted of serious crimes at age sixteen and served nineteen years in prison. He is married to a U.S. citizen and has family members who are U.S. citizens.

Petitioner, released on parole in 2005, was placed in removal proceedings due to convictions for aggravated felony crimes. Despite his criminal history, he engaged in violence-prevention efforts in Northern California, earning support from community leaders and law enforcement who submitted letters to the immigration court. The Immigration Judge (IJ) found Petitioner removable on three charges and denied his application for 212(c) relief, concluding that he did not demonstrate exceptional circumstances and deemed his claims for CAT relief speculative. The IJ cited Petitioner’s expected support from family in China as a factor undermining his claims of vulnerability. The Board of Immigration Appeals (BIA) upheld the IJ’s decision, emphasizing Petitioner’s criminal convictions over his rehabilitation efforts and failing to consider his community service. Petitioner filed a timely petition for review of the BIA's decision and subsequently a motion to reopen based on changed country conditions and new equities, both of which were denied by the BIA. The BIA found the changes irrelevant and the new equities insufficient to warrant reopening. The petitions for review were consolidated, and Petitioner argued that the BIA erred in failing to adequately analyze the equities in his case. Jurisdiction exists to review legal questions associated with Petitioner’s removal due to his aggravated felony convictions.

Section 212(c) allows the Attorney General to grant relief from removal to permanent residents who pled guilty to crimes before 1996. Despite the repeal of this provision by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Supreme Court's decision in INS v. St. Cyr permits those who pled guilty prior to the repeal to apply for 212(c) relief if they were eligible at the time of their plea. The Ninth Circuit has established that the Board of Immigration Appeals (BIA) commits an abuse of discretion by not considering all relevant factors related to a petitioner’s application for relief, including both positive and negative aspects. Key positive factors include family ties, evidence of hardship, community service, and rehabilitation efforts.

In this case, the BIA failed to adequately consider the Petitioner’s contributions to the community, focusing primarily on his long-ago criminal conviction as a negative factor. While acknowledging some favorable aspects of the Petitioner’s situation, the BIA dismissed their importance, stating that only "truly outstanding countervailing equities" could mitigate the impact of the conviction. It highlighted the Petitioner’s marriage to a U.S. citizen, lengthy residence in the U.S. during incarceration, and rehabilitation, but overlooked significant community support and evidence of the Petitioner’s efforts to mentor youth and prevent crime. The BIA concluded that the Petitioner did not present unusual or outstanding equities to outweigh his serious criminal record, neglecting substantial evidence of his positive contributions. The Petitioner argues that the BIA's failure to consider all relevant factors constitutes a misstep in its 212(c) determination.

Petitioner demonstrated significant community involvement and societal value, which the BIA was required to consider in his application for 212(c) relief. The BIA's failure to acknowledge this evidence constitutes an abuse of discretion, necessitating a remand for reevaluation of the case's unique circumstances. While the BIA noted Petitioner’s commendable rehabilitation during imprisonment, including educational achievements and good behavior, these factors differ from assessing his value and service to the community. The BIA must consider both aspects when relevant, and it appears Petitioner’s community service was overlooked.

Regarding the claim for protection under the Convention Against Torture (CAT), the BIA upheld the IJ’s finding that Petitioner did not establish it was more likely than not that he would face torture upon returning to China. The IJ concluded that Petitioner would have family support in China, which mitigated the risk of torture. Although Petitioner argued the loss of this support due to changes in circumstances, the IJ deemed such claims speculative. Petitioner did not challenge the IJ’s findings in the review petition, and the evidence did not compel a different conclusion. Expert testimony presented did not sufficiently support the claim of a likelihood of torture, further undermining Petitioner’s position.

The Immigration Judge (IJ) noted that the expert testimony presented by the Petitioner was predicated on the assumption that he would reside in a remote village without family support. However, testimony indicated that the Petitioner has adult relatives and friends in a larger city in China who could assist him, undermining his claim of facing torture upon return. The Board of Immigration Appeals (BIA) did not abuse its discretion in denying the Petitioner’s motion to reopen his application for Convention Against Torture (CAT) relief. The Petitioner argued that his submitted materials demonstrated increased persecution of dissidents, but to succeed on a motion to reopen, he must show a "reasonable likelihood" of meeting CAT eligibility criteria, which requires evidence that he is more likely than not to be tortured if returned. The BIA's review indicated it considered all evidence, ultimately deeming it unpersuasive and speculative. Consequently, the BIA’s denial of the motion to reopen was justified. The conclusion grants the petition for review regarding the Petitioner’s application for § 212(c) relief and remands for further consideration, while denying the petition concerning the CAT claim and the motion to reopen based on changed country conditions. Each party will bear its own costs.