Feng Bing Zhao v. Lynch ( 2016 )

15-2043 (L); 15-4071 (Con)
Zhao v. Lynch
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 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 31st day of October, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
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FENG BING ZHAO,
Petitioner,
v. Nos. 15-2043 (L),
15-4071 (Con)
LORETTA E. LYNCH, UNITED STATES ATTORNEY
GENERAL,
Respondent.
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FOR APPELLANT: Satnam Singh, Esq., Satnam Singh, P.C.,
Norfolk, Virginia.
FOR APPELLEE: Colin J. Tucker, Trial Attorney; Anthony W.
Norwood, Senior Litigation Counsel; Benjamin
C. Mizer, Principal Deputy Assistant Attorney
General, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice,
Washington, D.C.
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UPON DUE CONSIDERATION of these consolidated petitions for review of two
Board of Immigration Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petitions for review are DENIED.
Petitioner Feng Bing Zhao, a native of China and citizen of Canada, petitions for
review of a June 16, 2015 decision of the BIA affirming the November 1, 2013 decision
of an Immigration Judge (“IJ”) ordering him removed, and a December 2, 2015 BIA
decision denying reconsideration. In re Feng Bing Zhao, No. A047 550 078 (BIA June
16, 2015), aff’g No. A047 550 078 (Immig. Ct. Buffalo Nov. 1, 2013); In re Feng Bing
Zhao, No. A047 550 078 (BIA Dec. 2, 2015). We assume the parties’ familiarity with
the facts and record of prior proceedings, which we reference only as necessary to
explain our decision to deny Zhao’s petitions for review.
1. Initial Petition (No. 15-2043)
Under the circumstances of this case, we review both the BIA’s and IJ’s decisions
“for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524,
528 (2d Cir. 2006). We review the agency’s legal determinations de novo and its
factual findings for substantial evidence, accepting the latter unless a reasonable
adjudicator would be compelled to reach a contrary conclusion. See 8 U.S.C.
§ 1252(b)(4)(B); Jian Qiu Liu v. Holder, 632 F.3d 820, 821 (2d Cir. 2011).
a. Sufficiency of Notice to Appear
Zhao challenges the sufficiency of his Notice to Appear on the grounds that it did
not include an explicit charge that he had abandoned his lawful permanent resident
(“LPR”) status. The argument fails because his Notice to Appear specified, as required,
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the charges against him, the statutory provisions alleged to have been violated, and the
“acts or conduct alleged to be in violation of law.” See 8 U.S.C. § 1229(a)(1)(C)–(D); 8
C.F.R. § 1003.15(b)(3)–(4).
Zhao’s Notice to Appear charged that he was an arriving alien subject to removal
under Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) “as an immigrant
who, at the time of application for admission, is not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing card, or other valid entry document . . . .”
C.A.R. 618. Although immigrants must generally present a valid entry document,
“returning resident immigrants . . . who are otherwise admissible may be readmitted to
the United States by the Attorney General in his discretion without being required to
obtain . . . [an] immigrant visa, reentry permit or other documentation.” 8 U.S.C.
§ 1181(b); Ahmed v. Ashcroft, 286 F.3d 611, 612–13 (2d Cir. 2002). Thus, the Notice
to Appear was legally sufficient because it specified the acts or conduct alleged to be in
violation of law, i.e., that Zhao was an arriving alien seeking admission without a valid
entry document, and the relevant statutory section. See, e.g., Matadin v. Mukasey, 546
F.3d 85, 88 (2d Cir. 2008) (charging immigrant with violation of § 212(a)(7)(A)(i)(I)
where Department of Homeland Security determined that she had abandoned LPR
status). Had Zhao not been charged as an arriving alien, he would have been eligible for
admission without a valid entry document under 8 U.S.C. § 1181(b).
Even if we were to identify any defect in the Notice to Appear, any ambiguity as
to the charge was clarified at Zhao’s May 2012 removal hearing when the government
stated that Zhao’s removability was premised on abandonment. Indeed, prior to his July
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2013 hearing, Zhao submitted evidence to refute the abandonment charge. See Spinelli
v. City of New York, 579 F.3d 160, 169 (2d Cir. 2009) (“The touchstone of due process,
of course, is ‘the requirement that a person in jeopardy of serious loss (be given) notice of
the case against him and opportunity to meet it.’” (quoting Mathews v. Eldridge, 424
U.S. 319, 348–49 (1976))). At the July 2013 hearing, Zhao received repeated
clarification that the charge was premised on abandonment, and, thereafter, the
government also provided Zhao written clarification that his removability was premised
on abandonment. As a result, Zhao’s notice claim fails.
b. Abandonment of LPR Status
As stated above, an immigrant who fails to produce valid entry documents is
inadmissible unless he qualifies as a “returning resident.” 8 U.S.C. § 1181(b); see also
id. § 1101(a)(27)(A). A returning resident is a lawful permanent resident “returning
from a temporary visit abroad.” 8 U.S.C. § 1101(a)(27)(A); see also id. § 1181(b).
“The determinative issue here is whether the [multiyear] period during which [Zhao]
lived and worked in [Canada] after receiving lawful permanent resident status in the
United States qualifies as a ‘temporary visit abroad.’” Ahmed v. Ashcroft, 286 F.3d at
612–13. A “temporary visit abroad requires that the intention of the departing
immigrant must be to return within a period relatively short, fixed by some early event.”
Id. at 613 (internal quotation marks omitted). The agency’s determination that an
individual has departed the United States without the requisite intention to return is a
factual determination reviewed for substantial evidence. See id. at 612–13.
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Substantial evidence supports the agency’s factual determination that Zhao had
departed the United States without the requisite intent to return. That determination was
based on, first, Zhao becoming a Canadian citizen in 2004, four years after arriving in the
United States as an LPR. The government offered uncontroverted evidence that an
individual must reside in Canada for at least three of the four preceding years to be
granted citizenship. Further supporting the agency’s intent finding was evidence that
Zhao petitioned for his first wife to immigrate to Canada in 2006 and for his second wife
to immigrate there in 2011 and in 2013. In addition, he made no efforts to help either
woman immigrate to the United States prior to his removal proceedings. Evidence also
showed that Zhao obtained a Canadian driver’s license in 2011, and told border patrol in
November 2011 that he had moved to Canada in 2008 or 2009 for “a different
environment,” C.A.R. 568, and had been living in Toronto for the past two years working
for a construction company. He also testified at his July 2013 hearing that he had
moved to Canada in April 2010 to learn how to do construction work.
Zhao’s proffered evidence does not compel a contrary finding as to Zhao’s intent.
See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (observing
that weight afforded to evidence in immigration proceedings is largely within agency’s
discretion). The agency reasonably concluded that Zhao’s bank statements were entitled
to minimal weight because they mainly listed only automated bill payments and direct
deposits. While Zhao provided utility bills for his Virginia home, he also testified that
his mother and brother co-owned that home. Similarly, while Zhao provided business
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licenses for his restaurant in Virginia, he testified that his mother ran the restaurant while
he was living in Canada.
The agency’s finding that Zhao had departed the United States without an
intention to return within a relatively short period is thus supported by substantial
evidence, and it cannot be said that “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Ahmed v. Ashcroft, 286 F.3d
at 612–13. Because the agency properly found Zhao removable under INA §
212(a)(7)(A)(i)(I), we decline to consider his challenges to the determination that he was
also removable under INA § 212(a)(6)(C)(i) (rendering inadmissible any alien who, by
fraud or willful misrepresentation of material fact, seeks to procure admission into United
States).
c. Due Process Claims
Zhao argues that his due process rights were violated by agency consideration of a
border interview conducted without affording Zhao an interpreter. He further raises a
due process challenge to the lack of an interpreter during the testimony of the border
patrol officer at his removal hearing. See Zerrei v. Gonzales, 471 F.3d 342, 346 (2d Cir.
2006) (“The Federal Rules of Evidence do not apply in removal proceedings; rather,
evidence is admissible provided that it does not violate the alien’s right to due process of
law.” (alteration and internal quotation marks omitted)). Due process is satisfied if
admitted evidence “is probative and its use is fundamentally fair, fairness in this context
being closely related to the reliability and trustworthiness of the evidence.” Id. (internal
quotation marks omitted). “Parties claiming denial of due process in immigration cases
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must, in order to prevail, allege some cognizable prejudice fairly attributable to the
challenged process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
(internal quotation marks omitted).
Zhao has failed to indicate how he was prejudiced by the alleged violations of due
process. He neither claims that he was unable to understand the border patrol officer’s
questions, nor explains how his counsel’s cross-examination of the officer would have
been different had an interpreter been present. Moreover, the IJ found Zhao’s claimed
inability to understand English not credible, a finding that Zhao does not challenge with
any specificity. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008)
(observing that particular deference afforded to IJ’s credibility determination). Finally,
Zhao’s own testimony largely corroborates the officer’s testimony and report regarding
his statements at the border: Zhao admitted that he attempted to enter the United States
with his Canadian passport and that he initially denied having been previously admitted
as an LPR. As a result, Zhao’s due process challenges fail.
2. Consolidated Petition (No. 15-4071)
A motion to reconsider asks the Board to reexamine its decision in light of
“additional legal arguments, a change of law, or . . . [an] aspect of the case which was
overlooked.” Matter of Cerna, 20 I. & N. Dec. 399, 402 n.2 (BIA 1991) (internal
quotation marks omitted). We review the denial of a motion to reconsider for abuse of
discretion. Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007).
Zhao argues that the BIA erred in denying reconsideration because its June 2015
decision is contrary to its published decision issued that same day, Matter of Pena, 26 I.
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& N. Dec. 613 (BIA 2015). The BIA correctly determined, however, that Matter of
Pena did not support Zhao’s legal challenge to his Notice to Appear for failure to charge
abandonment of his LPR status. Matter of Pena held only that an individual granted
LPR status cannot be charged in removal proceedings under INA § 212(a) as an arriving
alien seeking admission if he does not fall within any of the exceptions listed in INA
§ 101(a)(13)(C), a list that includes abandonment. See 26 I. & N. Dec. at 615; 8 U.S.C.
§ 1101(a)(13)(C)(i). Matter of Pena is thus not applicable to Zhao who, as already
discussed, was properly charged as an arriving alien.
The remainder of Zhao’s motion reasserted arguments rejected by the BIA on
appeal, and “the BIA does not abuse its discretion by denying a motion to reconsider
where the motion repeats arguments that the BIA has previously rejected.” Jin Ming
Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).
3. Conclusion
We have considered Zhao’s other arguments and conclude that they are without
merit. Accordingly, the consolidated petitions for review are DENIED. As we have
completed our review, any previously granted stay of removal in these petitions is
VACATED, and any pending motion for a stay of removal is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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