Zhang v. Gonzales ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2460
HAI NING ZHANG,
Petitioner,
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Jeffrey C. Bloom, with whom Jeffrey C. Bloom, P.C., on brief
for petitioner.
Manuel A. Palau, Trial Attorney, Civil Division, U.S.
Department of Justice, Peter D. Keisler, Assistant Attorney
General, Civil Division, and Terri J. Scadron, Assistant Director,
on brief for respondent.
September 1, 2006
TORRUELLA, Circuit Judge. Petitioner Hai Ning Zhang
("Zhang") petitions us to review the Board of Immigration Appeals'
("BIA") denial of a motion to reopen his removal proceedings.
After careful consideration, we affirm.
I. Background
A. Procedural Overview
Zhang, a native and citizen of China, lawfully entered
the United States in Los Angeles, California, on March 19, 2001.
Zhang had a B-1 visa valid until May 19, 2001, which he overstayed.
On April 3, 2002, Zhang filed an I-589 application seeking asylum,
withholding of removal, and protection under the Convention Against
Torture ("CAT"). On January 9, 2003, the Immigration and
Naturalization Service ("INS")1 served Zhang with a Notice to
Appear, charging that he was removable under § 237(a)(1)(B) of the
Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B),
as an alien admitted as a nonimmigrant who remained in the United
States for a time longer than permitted. On March 25, 2003, Zhang
conceded removability.
Zhang appeared before an Immigration Judge ("IJ") on
August 8, 2003. On August 22, the IJ pretermitted Zhang's asylum
application and denied his request for withholding of removal and
1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement.
For simplicity, we refer to the agency throughout this opinion as
the INS.
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relief under CAT. The IJ also granted Zhang voluntary departure.
Zhang timely appealed to the BIA, which summarily affirmed the IJ's
decision on December 17, 2004. Zhang did not appeal this decision
but instead filed a motion to reopen and reconsider and a motion to
stay deportation with the BIA, on July 26, 2005. The BIA denied
these motions as untimely on September 2, 2005. Zhang has timely
appealed.
B. Factual Background
The following facts are taken from Zhang's testimony
before the IJ and from documents he presented in support of his
asylum application.
Zhang, married with no children, left China for the
United States in March 2001. He is a practitioner of Falun Gong2
and claims that he suffered harsh treatment by the Chinese
government as a result. Before he left China, Zhang had worked as
a deputy manager in the sales department of a computer hardware
company ("the Company") since 1995 and earned the equivalent of
approximately $31,000 annually. The Company was owned jointly by
the Chinese government (60%) and by an individual named Huan Chao
He ("He"), whom Zhang described as a mentor, father figure, and
2
Zhang described Falun Gong as a faith whose "characteristic is
to purify your soul. To foster your ethics, your morals . . . to
seek the truth." He did not describe in great detail what this
entails, aside from references to practicing in a park and
purchasing instructional books and tapes. By the time he left
China, he testified, he had become an "intermediate level"
practitioner.
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best friend. Zhang testified that he earned 100,000,000 Renminbi
("RMB" -- Chinese currency)3 for the Company, and that for years
before he left China, he and his wife lived in a Company-owned
house.
Zhang started practicing Falun Gong in March 1998.
Between July 1999 and his departure from China in March 2001, he
alleges that he was detained and abused by the Chinese government
on three separate occasions. He was detained for seven days in
July 1999, and for thirteen days in September-October 2000. During
these two detentions, Zhang suffered physical abuse, including one
beating during the second detention that left him with a broken
vertebra. Prior to the first detention, security officers seized
Zhang's Falun Gong materials and several personal items. During
both detentions, either Zhang or his wife received notification of
his release date, and the detentions lasted no longer than thirteen
days, in accordance with Chinese criminal law at the time. During
these two episodes and another minor detention in October 1999
which lasted approximately five hours, Zhang was ordered to stop
practicing Falun Gong. He refused to sign documents renouncing
Falun Gong but did limit his practice of the faith to his home.
Zhang's practice of Falun Gong, as well as the incidents
with the security officers, also caused him problems at his job.
3
At all times relevant to this series of events, the value of the
Renminbi was fixed at a rate of approximately 8.28 RMB per dollar.
Zhang thus claims to have earned over $12,000,000 for the Company.
-4-
After each detention, the Company urged him to stop practicing
Falun Gong. Finally, in November 2000, shortly after his third
detention, Zhang was officially fired from his job, upon orders
from a government security office. The Company retained his
services unofficially, however, and he continued to work in the
sales area at a reduced salary. In preparation for a business trip
to the United States, the Company secured the return of Zhang's
passport, which had been seized by the security office. The
security office, however, would not let Zhang receive any
commission from the trip, which Zhang predicted would be worth
$180,000.4 On March 19, 2001, Zhang entered the United States at
Los Angeles, California but soon realized that the Company had lost
the deal that he had been sent to complete. Zhang informed his
boss, who became angry and soon stopped returning Zhang's phone
calls. Zhang then contacted his friend He, who informed him that
another Falun Gong member had just received a two- to three-year
prison sentence and advised him to remain in the United States and
petition for asylum.
Zhang traveled to Baltimore, Maryland, on March 26, 2001,
where he lived with a friend, and moved to Puerto Rico on June 19.
On June 21, 2001, the Company seized Zhang's home and evicted his
4
The fact that the security office knew about the trip at all
would imply that it knew that Zhang was still working for the
Company. Zhang does not attempt to reconcile this with his
testimony that the office had already ordered that he be fired.
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wife. She was also fired from her job upon orders from the
security office. Zhang testified that he still practices Falun
Gong and that he fears that, just like many other Falun Gong
practitioners, he would be imprisoned if he returned to China.
C. IJ's Decision and BIA's Affirmance
On August 8, 2003, Zhang appeared before an IJ in San
Juan, Puerto Rico. The IJ denied all of Zhang's claims. She first
pretermitted Zhang's asylum claim because it was filed one year and
sixteen days after his arrival in the United States, in violation
of the one-year deadline.5
The IJ then denied Zhang's request for withholding of
removal, finding that he had wholly failed to prove that he would
be persecuted based on his Falun Gong faith if he returned to
China. Taking Zhang's testimony as true, the IJ found that even
despite his detentions, all of which conformed with Chinese
criminal law, Zhang still enjoyed significant benefits from the
government in the sense that he remained employed by a company in
which the government was a majority owner. Therefore, the IJ held
that even though some Falun Gong practitioners were persecuted,
this did not mean that Zhang himself would be persecuted or
tortured upon his return to China. Instead, the IJ characterized
5
Zhang testified that he believed that he needed his birth
certificate to complete his application and was thus waiting until
he received it in order to file. The IJ held that this was not a
valid excuse for his tardiness, because he could have easily filed
by using his passport.
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Zhang's decision to remain in the United States as a result of a
"business transaction turned sour" and noted that the seizure of
his home was not related to his practice of Falun Gong, but instead
to the fact that he had effectively abandoned his job, and that the
Company owned the house. Moreover, the IJ noted, Zhang had not
corroborated his testimony with a letter from either his wife or
his mentor He, but even if he had done so, this would not have
discharged his burden of proof on this count. Finally, the IJ held
that Zhang had provided no evidence that he was tortured in China,
defeating his claim for protection under CAT. The IJ granted Zhang
voluntary departure.
D. Motion to Reopen
On July 26, 2005, Zhang filed a motion to reopen his
removal proceedings claiming that he could state new facts and
provide documents that he could not have been presented at the
prior hearing. The main piece of evidence was a letter from He
dated March 25, 2005, which generally corroborated Zhang's
testimony.6 It also provided additional background related to the
recent death of Zhang's father and the government's refusal to
provide compensation for his death, which He claims is evidence
6
Zhang claims that He was unwilling to write on his behalf
earlier, due to threats made by the government to He's business
interests.
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that the government is still "going after" Zhang.7 The other new
items of evidence submitted by Zhang were (i) He's Hong Kong ID
card; (ii) a business license for the Company; (iii) a shareholding
structure certificate for the company; (iv) sections from the
criminal procedure code of China; (v) a forensic report on the
death of Zhang's father; (vi) a diagnosis report on the same; (vii)
Zhang's notarized birth certificate. The BIA denied the motion to
reopen on the grounds that it was filed more than 90 days after the
BIA's decision, in contravention of 8 C.F.R. § 1003.2(c)(2).
II. Discussion
We review the BIA's denial of a motion to reopen for
abuse of discretion. Maryam v. Gonzáles, 421 F.3d 60, 62 (1st Cir.
2005). An abuse of discretion will be found "where the BIA
misinterprets the law, or acts either arbitrarily or capriciously."
Chen v. Gonzáles, 415 F.3d 151, 153 (1st Cir. 2005).
"There are at least three independent grounds on which
the BIA may deny a motion to reopen." INS v. Abudu, 485 U.S. 94,
104 (1988). It may hold that the movant (i) has not established a
prima facie case for the substantive relief sought; (ii) has not
introduced evidence that is material and was unavailable during the
original proceedings; or (iii) is simply not entitled to a
discretionary grant of relief. Id. at 104-05. See also 8 C.F.R.
7
Neither He's letter nor the other documents submitted with
Zhang's motion to reopen provide any evidence as to why Zhang would
be entitled to compensation for his father's death.
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§ 1003.2(c)(1) In most circumstances, a motion to reopen must be
filed within 90 days of a final administrative order of removal.
8 U.S.C. § 1229a(c)(7)(C)(i). An exception to this deadline is
made for evidence based on changed conditions in the country to
which removal has been ordered, "if such evidence is material and
was not available and would not have been discovered or presented
at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii).8
In this case, it is not disputed that Zhang missed the
90-day deadline. Zhang instead argues that the BIA should have
applied the equitable tolling doctrine to extend his filing period.
This doctrine "provides that in exceptional circumstances, a
statute of limitations may be extended for equitable reasons not
acknowledged in the statute creating the limitations period."
Neverson v. Farquharson, 366 F.3d 32, 40 (1st Cir. 2004) (citations
and internal quotation marks omitted). The doctrine is to be
"sparingly invoked." Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001)
(citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96
(1990)).
The equitable tolling doctrine "is read into every
federal statute of limitation," Holmberg v. Armbrecht, 327 U.S.
392, 397 (1946), but "deadlines that define the court's
jurisdiction may not be equitably tolled." Neverson, 366 F.3d at
8
Though Zhang did not argue for such an exception, the BIA held
that his new evidence in any case did not establish changed
circumstances in China so as to permit it.
-9-
40; see also Soriano v. United States, 352 U.S. 270, 276 (1957).
We have not yet decided whether the motion to reopen deadline is
jurisdictional, and therefore whether it can be equitably tolled.
See Joumaa v. Gonzáles, 446 F.3d 244, 246 (1st Cir. 2006); Chen v.
Gonzáles, 415 F.3d at 154 n.3. We need not do so here.
Zhang did not raise his equitable tolling argument before
the BIA. Indeed his motion to reopen made at best passing
reference to its untimeliness.9 Zhang therefore failed to pursue
this remedy below, and we "may review a final order of removal only
if . . . the alien has exhausted all administrative remedies
available to the alien as of right . . . ." 8 U.S.C. § 1252(d)(1).
Because Zhang did not exhaust all of his administrative remedies
regarding his equitable tolling claim, we lack jurisdiction to
adjudicate it. See Joumaa, 446 F.3d at 246 (declining to decide
whether the equitable tolling doctrine applies to an untimely
motion to reopen because petitioner did not argue the issue before
the BIA).
We also note that even setting aside the issue of
untimeliness, the BIA still did not abuse its discretion by denying
9
Zhang concluded his BIA motion to reopen by stating that "[i]n
light of the newly discovered material information, the respondent
respectfully requests that this Honorable Board reopen his removal
proceeding." It would be quite a stretch to say that this
reference to "newly discovered material information" addresses the
fact that his motion was untimely, and in any case, Zhang does not
brief this or any other argument regarding his failure to raise
equitable tolling before the BIA.
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Zhang's motion to reopen. Of the documents Zhang submitted with
his motion to reopen, only the letter from He was arguably
unavailable at the time of Zhang's original proceedings, and its
materiality to the case is minimal.10 Zhang does not show that the
new evidence regarding withholding of compensation after his
father's death now establishes a prima facie case for relief, and
even if it did, the BIA still had discretion to deny the motion.
Zhang does not argue that the BIA's decision to do so was arbitrary
or capricious. See Chen, 415 F.3d at 153. Finally, the BIA's
failure to equitably toll the deadline when Zhang did not urge it
to do so -- nor have we ever held that it even could do so -- was
certainly not a misinterpretation of the law. Id.In sum, Zhang may not pursue his equitable tolling
argument before this Court because he did not raise it before the
BIA. He has presented no other legal basis to excuse the
untimeliness of his motion to reopen. Finally, even had the motion
been timely filed, the BIA still did not abuse its discretion in
denying it.
III. Conclusion
For all of the foregoing reasons, we deny the petition
for review and affirm the decision of the BIA.
Affirmed.
10
Indeed He's letter serves mainly to corroborate Zhang's
testimony, but the IJ explicitly stated that even with such
corroboration Zhang could still not discharge his burden of proof.
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