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Xuan Li Zheng v. Ashcroft
Citation: 89 F. App'x 76Docket: No. 02-73656; Agency No. A73-436-848
Court: Court of Appeals for the Ninth Circuit; February 23, 2004; Federal Appellate Court
Petitioner Xuan Li Zheng seeks judicial review of the Board of Immigration Appeals’ (BIA) denial to reopen her asylum application. Zheng fled China illegally to escape an arranged marriage, subsequently being detained upon her entry into the U.S. on May 18, 1998. Although released from detention in 2000, her July 26, 2003 motion to reopen her asylum case was denied by the BIA. The BIA concluded that while Zheng cited personal changes, she did not claim changes in conditions in China, specifically noting her lack of attempts to repay the smuggling fees owed to the "Snakeheads." The BIA deemed the motion untimely due to the absence of material changed circumstances in China. Judicial review of a motion to reopen is governed by standards of abuse of discretion. A motion can be filed at any time if based on newly discovered changed country conditions. The BIA's decision must demonstrate consideration of all relevant factors and indicate how it weighed them. Zheng’s motion included evidence from Dr. Dean Rojek, who argued that Zheng faced severe risks if deported due to China's punitive "strike hard" campaign and new policies regarding inmate releases. The BIA, however, failed to address this evidence, leading to a conclusion that it abused its discretion. The government's concession at oral argument affirmed that the BIA did not adequately consider Zheng's claims, constituting a failure to properly evaluate her request for reopening based on changed conditions. The BIA's denial of relief for Zheng was deemed inadequate as it failed to consider her evidence of changed country conditions, concluding that changes were only personal. The BIA abused its discretion by not adequately evaluating Zheng’s submissions before deciding on her motion to reopen. The petition was granted and remanded for further consideration. Zheng initially filed for asylum on June 3, 1998, which was denied by an IJ and affirmed by the BIA, citing insufficient evidence that China would prevent a forced marriage. Zheng's subsequent motion to reopen, based on a Convention Against Torture claim due to prior ineffective counsel, was denied by the BIA, which found no ineffective assistance. An unsworn letter from Dr. Rojek was determined to be admissible evidence under the principles of fundamental fairness and probativeness. The court emphasized that the BIA must consider Zheng's evidence of changed country conditions without evaluating its materiality at this stage. The State Department's Country Report indicated that a new "Strike Hard" policy was initiated in 2000, which was not in effect during Zheng’s initial application. The BIA is permitted to review any relevant evidence upon remand, but the Government cannot introduce new justifications for the BIA's decision in the appeal, as the court can only review the reasons originally provided by the agency.