Quanguan Zheng v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-2752
______________
QUANGUAN ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of an Order of
the Board of Immigration Appeals
(Agency No. A216-288-803)
Immigration Judge: Honorable Kuyomars Q. Golparvar
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 18, 2019
______________
Before: SHWARTZ, KRAUSE, and BIBAS, Circuit Judges.
(Filed: March 20, 2019)
______________
OPINION*
______________
SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Quanguan Zheng petitions for review of the Board of Immigration Appeals’
(“BIA”) decision denying his claim for relief under the Convention Against Torture
(“CAT”) and orders denying his continuance requests. Because Zheng did not establish
that it is more likely than not he will be tortured if returned to China, and because he had
not demonstrated good cause for a continuance nor prejudice from its denial, we will
deny the petition.
I
Zheng is a citizen and native of China. In 2015, he entered the United States on a
visitor’s visa. In November 2017, Immigration and Customs Enforcement discovered an
Interpol Red Notice for Zheng1 based on an arrest warrant issued in China for
embezzlement. Zheng was arrested and charged with overstaying his visa in violation of
8 U.S.C. § 1227(a)(1)(B). Zheng sought CAT relief.
In November and December 2017, Zheng and his counsel appeared before an
Immigration Judge (“IJ”). At Zheng’s request, the IJ gave the parties until December 27,
2017, to submit additional evidence. Zheng moved to adjourn, seeking more time to
prepare,2 which the IJ denied, stating that “good cause [was] not shown” and
“Respondent has been detained since mid-November.” AR 484. The IJ reminded the
1
Insofar as Zheng asserts that he was unable to fully present his case because
portions of the Red Notice are obscured the Notice is in fact legible and only a few letters
of certain words at the top of the document are missing because of hole punches.
2
Zheng also sought to amend his statement to explain his new basis for CAT relief
after receiving the Red Notice—his fear of torture to extract a confession for the
embezzlement charges. The IJ accepted Zheng’s amended statement. Zheng abandoned
his original claim that he would face torture based on his conversion to Christianity.
2
parties that supporting documents were due by December 27, 2017. Zheng submitted no
documents by the December 27 deadline.
At the January 5, 2018 merits hearing, Zheng’s counsel made another motion to
adjourn, explaining that he had not had a chance to speak with Zheng until the prior day
and, in the alternative, sought a continuance to consider how the embezzlement charges
impact Zheng’s claim of fear and to present an expert witness. That day, Zheng also
submitted 236 pages of supporting documents. The IJ did not accept these late-filed
documents and denied the continuance motion. The IJ explained that no good cause
existed to continue the proceeding because Zheng did not provide details about the time
and information counsel needed and noted that Zheng had already been detained for
several weeks. The IJ also rejected counsel’s explanation that he did not have time to
meet with his client until the prior day, as he had been counsel of record since November.
The IJ then considered Zheng’s testimony and timely-presented documents.
Zheng explained that between 2005 and 2015, he worked in a real estate business with
friend and partner Zen Chen. Zheng handled the day-to-day business, and Chen was the
majority owner to whom Zheng reported. Zheng said that Chen gave him permission to
sell property at a discounted price to family members and to use company funds to pay
family medical bills. Chen later sued Zheng for misusing company funds. Zheng
explained that Chen has a relationship with law enforcement, and they “would use any
mean[s] to force [him] to admit a wrongdoing.” AR 183.
In June 2015, Zheng learned that Chinese officials initiated an investigation into
his activities. He also heard that other individuals involved in the real estate business
3
faced government action. Zheng’s wife was arrested and detained for nine to eleven
months,3 and while there, she was exposed to a high-energy lamp and deprived of sleep.
Zheng’s brother-in-law was sentenced to five years in jail for selling property to Zheng’s
wife; Zheng’s son was arrested, detained for several months, and then released without
explanation; and Zheng’s step-son’s friend was arrested and has been in custody for over
a year. Zheng’s mother-in-law purchased property from Zheng but no action was taken
against her.
In addition to his testimony, Zheng presented the Department of State 2016
Human Rights Report for China. According to the report, torture continues to be a
problem “embedded in the criminal justice system,” and although coerced confessions are
illegal in China, judges rarely exclude them, and interrogators try to conceal their use of
torture. AR 599. The report described “torture and coerced confessions of prisoners,”
carried out by public security bureaus with broad authority as a “serious human rights
abuse[].” AR 593.
The IJ denied Zheng’s request for CAT relief. The IJ found Zheng credible, but
held that despite flaws with the legal process in China, arrest and prosecution alone do
not constitute torture, and Zheng did not demonstrate it was more likely than not he
would be tortured.4 Zheng appealed.
The BIA dismissed his appeal, finding the IJ did not err in concluding Zheng did
3
Zheng testified that he did not know whether his wife was charged with
embezzlement or whether there was a criminal case against her.
4
The IJ noted that the conduct to which Zheng’s wife was exposed was not “in
and of itself . . . equivalent to torture.” AR 94.
4
not prove that it is more likely than not he would be subject to torture given that “[n]one
of [his] . . . family members or friends has been mistreated, let alone tortured,” and that
“being arrested and charged with a crime in China does not mean one is likely to be
tortured.” AR 4. The BIA also found that the IJ did not err in denying the continuance
motions because Zheng did not demonstrate either good cause for a continuance or show
prejudice from their denial.5
Zheng petitions for review.
II6
A
5
Specifically, the BIA explained that Zheng (1) did “not cite to specific portions”
of the untimely documents to show how they supported his torture claim, AR 5, and
(2) failed to describe the specific evidence his expert, a professor from Columbia, would
offer, beyond saying the expert would testify about Chinese torture. For these reasons,
the BIA found that Zheng did not show how the exclusion of this evidence “may have
affected the outcome of the case.” Id.6
The IJ had jurisdiction over Zheng’s removal proceedings under 8 U.S.C.
§ 1229a, and the BIA had jurisdiction under 8 C.F.R. § 1003.1(b). We have jurisdiction
over final orders of the BIA under 8 U.S.C. § 1252(a)(1), (a)(2)(D). Our review is
typically restricted to the BIA’s decision, Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.
2001), unless “the BIA’s opinion ‘invokes specific aspects of the IJ’s analysis and fact-
finding in support of [its] conclusions’” in which case, “we are obliged to review both
the decisions of the IJ and the BIA,” Green v. Att’y Gen., 694 F.3d 503, 506 (3d Cir.
2012) (alteration in original) (quoting Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.
2005)).
We review the BIA’s legal determinations de novo subject to established
principles of deference and review factual determinations under the substantial evidence
standard. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). “Substantial evidence is
more than a mere scintilla and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Mendoza-Ordonez v. Att’y Gen., 869 F.3d
164, 170 n.15 (3d Cir. 2017). “[I]f no reasonable fact finder could reach the same
conclusion as the BIA based on the record then the finding is not supported by substantial
evidence.” Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir. 2006).
5
To obtain CAT protection, an applicant must “establish that it is more likely than
not that he or she would be tortured if removed to the proposed country of removal. The
testimony of the applicant, if credible, may be sufficient to sustain the burden of proof
without corroboration.” 8 C.F.R. § 1208.16(c)(2). “Torture” under the CAT “is an
extreme form of cruel and inhuman treatment” that is inflicted by or with the
acquiescence of a public official and “specifically intended to inflict severe physical or
mental pain or suffering.” 8 C.F.R. § 1208.18(a)(1), (2), (5).
With respect to the “likelihood of torture, there are two distinct parts to the mixed
question: (1) what is likely to happen to the petitioner if removed; and (2) does what is
likely to happen amount to the legal definition of torture?” Kaplun v. Att’y Gen., 602
F.3d 260, 271 (3d Cir. 2010). The first question is factual, id., and requires the IJ to
review “the evidence and determine[] future events more likely than not to occur,” Myrie
v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017). The second part of the inquiry is a legal
determination as to whether those events meet the definition of torture. Kaplun, 602 F.3d
at 271. Accordingly, we review the first determination for substantial evidence, and the
second determination de novo. See Kang v. Att’y Gen., 611 F.3d 157, 164 (3d Cir.
2010).
B
Zheng argues that the IJ and BIA mischaracterized his CAT claim as being based
on a fear of arrest and lawful punishment for a crime in China, rather than a fear that
torture will be used to extract a confession. He also argues that the IJ’s conclusion that
he was unlikely to face torture was not supported by substantial evidence given the
6
treatment of his family and the country conditions report. We will address each argument
in turn.
1
Contrary to Zheng’s argument, the BIA properly framed the nature of Zheng’s
claim. The BIA stated that Zheng fears “he will be subjected to torture by authorities
from the public security bureau in order to gain a forced confession of guilt, wrongful
arrest, detention, conviction, and sentence . . . .” AR 3-4. Although the IJ and BIA noted
the nature of China’s justice system and the protections it affords defendants, they both
correctly observed that “being arrested and charged with a crime in China does not mean
one is likely to be tortured.” AR 4. The IJ and BIA also considered whether Zheng
presented evidence showing it was more likely than not that he would be tortured.
Indeed, the BIA’s analysis focused on the treatment of Zheng’s family members and
associates as an indication of how he would likely be treated if he is returned to China.
Thus, even if the IJ placed greater emphasis on the criminal justice system than on
Zheng’s circumstances, the BIA understood the basis for Zheng’s CAT claim and did not
err in how it resolved it.
2
The BIA correctly concluded that Zheng “has not met his burden of proving that it
is more likely than not that he would be subjected to torture.” AR 4. The BIA relied on
the fact that, aside from his wife, “none of [Zheng’s] other family members or friends has
7
been mistreated, let alone tortured,” and arrest and being charged for a crime are not
torture. AR 4.
These factual determinations are supported by substantial evidence. Even
assuming that Zheng’s wife was arrested for participating in the embezzlement scheme
and further assuming that her exposure to bright lamps and sleep deprivation constitute
torture, there is no evidence that others who were arrested or detained in connection with
the embezzlement faced similar treatment. Cf. Kang, 611 F.3d at 166 (holding “[t]he
record compels the conclusion that if [the petitioner] is removed to China it is more likely
than not” she will be tortured where two other individuals named in her arrest warrant
and other members of her organization were tortured for assisting North Korean
refugees). Therefore, the sole example of his wife’s treatment, particularly in light of the
treatment of others allegedly involved in the same offense, is insufficient to prove that it
is more likely than not Zheng himself would be tortured. See Wang v. Ashcroft, 368
F.3d 347, 350 (3d Cir. 2004) (holding petitioner could not rely on State Department
reports regarding Chinese torture of particular groups where he was not included in those
groups as a “first-time returning emigrant,” and there was no other evidence that he
would be tortured).
In sum, the IJ and BIA did not err in finding that Zheng was not entitled to CAT
relief.7
7
Because the agency did not err in its resolution of the factual question of whether
it was more likely than not that Zheng would be tortured upon his return to China, we
need not decide whether the techniques he claims are used to obtain a confession meet
the legal definition of torture.
8
III
Zheng next argues that the IJ abused his discretion by denying his continuance
motions and that the denial deprived him of his due process right to a full and fair
hearing. Both arguments lack merit.
“The Immigration Judge may grant a motion for continuance for good cause
shown.” 8 C.F.R. § 1003.29. We review that decision for abuse of discretion.8 Hashmi
v. Att’y Gen., 531 F.3d 256, 260 (3d Cir. 2008). The decision to grant a continuance
should be “resolved on a case by case basis according to the facts and circumstances of
each case,” id. (citation omitted), and may not be based “solely on case-completion
goals,” id. at 261.
Here, the IJ did not abuse his discretion. His decision to deny a continuance was
not based purely on case completion goals or simply because Zheng was detained.
Rather, the IJ considered that: (1) counsel received additional time to submit documents
when it denied the written motion to adjourn; (2) counsel failed to explain in “sufficient
detail” why additional time was needed and what information he sought to obtain during
that time, AR 80; (3) counsel was on notice of the Red Notice for a month; and (4) as to
his reason for submitting new evidence after the December 27 deadline, namely that he
did not meet with Zheng until the day before the January 5 merits hearing, counsel had
represented Zheng for the entire case, so there was no excuse for his failure to meet with
Zheng sooner. Because there was no good cause for the requested continuance, the IJ’s
8
“An IJ’s decision should be reversed as an abuse of discretion only if it is
arbitrary, irrational or contrary to law.” Hashmi, 531 F.3d at 259 (citation omitted).
9
decision to deny the request was not an abuse of discretion.
The denial also did not deprive Zheng of due process. While “[a]liens are entitled
to a full and fair hearing of [their] claims and a reasonable opportunity to present
evidence,” they “must show substantial prejudice” to prevail on a due process claim.
Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006) (second alteration in original)
(internal quotation marks and citations omitted). Zheng had the opportunity to testify, he
was permitted to revise the basis for his CAT claim to pursue his assertion that Chinese
officials would use torture to obtain a confession to the embezzlement charges, and the IJ
and BIA considered the Department of State Human Rights and Country Conditions
Report. This report provided extensive detail about the criminal justice system in China,
the treatment in detention centers, and techniques used to extract confessions. In this
respect, the report confirms Zheng’s testimony about the authority of the public security
bureau and its activities. Furthermore, Zheng himself acknowledges the value of the
report by arguing that it corroborates his claim.9 Finally, Zheng does not explain how the
absence of additional time and the expert witness impaired his ability to present his case.
Thus, Zheng has not shown how he was prejudiced by the denial of the continuance
motions.
IV
For the foregoing reasons, we will deny Zheng’s petition for review.
9
Additionally, the country conditions report captures much of the information
contained in the untimely documents Zheng sought to present. Thus, Zheng was not
impacted by the absence of these largely redundant documents.
10