Guiping Zheng v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1126
___________
GUIPING ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
_______________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
BIA No. A089-150-297
(U.S. Immigration Judge: Honorable Walter A. Durling)
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 4, 2018
Before: SHWARTZ, SCIRICA, and ROTH Circuit Judges.
(Filed: January 7, 2019)
________________
OPINION *
________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
Guipeng Zheng faces immigration removal proceedings on the basis of a felony
child abuse conviction. The Immigration Judge (IJ) granted Zheng a waiver of
inadmissibility and an adjustment of his status to lawful permanent resident. On
administrative appeal, the Board of Immigration Appeals (BIA) reversed the IJ’s decision
and denied Zheng’s applications for relief. Zheng now files a petition for review,
contending that the BIA incorrectly engaged in de novo review of the IJ’s factual
findings, and that its decision was not supported with sufficient explanatory reasoning to
satisfy Zheng’s due process rights. We will deny the petition.
I.
Zheng, a native and citizen of China, entered the United States as a nonimmigrant
student in 2000 and adjusted his status to lawful permanent resident in 2009. Zheng’s
wife and his two children are U.S. citizens. On July 26, 2014 after a jury trial, Zheng was
convicted of indecent assault against a minor less than thirteen years old in violation of
18 Pa. Cons. Stat. § 3126(a)(7), a third degree felony; unlawful contact with a minor for
the purpose of engaging in unlawful sexual activity in violation of 18 Pa. Cons. Stat. §
6318(a)(4); endangering the welfare of a child while acting as a supervisory adult or
guardian in violation of 18 Pa. Cons. Stat. § 4304(a)(1); and corruption of a minor by a
person at least eighteen years old in violation of 18 Pa. Cons. Stat. § 6301(a)(1)(ii).
Commonwealth v. Guiping Zheng, No. 533 WDA 2015, 2016 WL 4954188, at *1 n.1 (Pa.
Super. Ct. July 11, 2016). Evidence at trial established Zheng had sexually abused a ten-
year-old minor referred to as Jane Doe since Doe was six years old. Id. Zheng frequently
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“lay on top of the victim … fondled her over her clothing, and attempted to kiss her.” Id.
at *1. Zheng was sentenced to fifteen to thirty months of incarceration and three years of
probation. Id.Because Zheng was convicted of a crime of child abuse and of an aggravated
felony, he became removable under immigration law. See 8 U.S.C. §§ 1227(a)(2)(E)(i) &
(A)(iii), 1101(a)(43)(A). To avoid removal, Zheng was required to seek adjustment of
status to lawful permanent resident. Id. § 1255(a). But Zheng’s conviction belongs to a
statutory category rendering Zheng inadmissible, a status creating a special barrier to
lawful admission. Id. § 1182(a)(2). To be eligible for an adjustment of status, Zheng
therefore needed a waiver of inadmissibility. Id. §§ 1255(a), 1182(h)(1)(B). On
September 26, 2016, the Department of Homeland Security commenced removal
proceedings against Zheng. On May 24, 2017, Zheng filed applications for a waiver of
inadmissibility under § 1182(h)(1)(B) and for an adjustment of status under § 1255.
Zheng’s applications were evaluated by an IJ, who issued a decision on July 17,
2017 following a hearing. The IJ found, and the parties do not contest, that Zheng’s
conviction for indecent assault against a minor less than thirteen years old qualifies as
one “involving violent or dangerous crimes,” meaning, in order to receive a waiver of
inadmissibility, Zheng would be required to show his removal would cause “exceptional
and extremely unusual hardship.” 8 C.F.R. § 1212.7(d). In addition, the regulation
provides, “depending on the gravity of the alien’s underlying criminal offense,” his
hardship might still be “insufficient to warrant a favorable exercise of discretion” in
granting his accompanying application for adjustment of status. Id.3
Despite this demanding standard, the IJ granted Zheng’s applications for a waiver
of inadmissibility and for adjustment of status. Although Zheng’s family’s financial and
health hardships were not exceptional, the IJ found their likely citizenship and family
separation consequences should Zheng be removed did meet the “exceptional and
extremely unusual hardship” standard. Specifically, because China does not permit dual
citizenship, Zheng’s wife and children would face an “iniquitous dilemma” in
determining whether to stay in the United States or move to China with Zheng. App. 11.
If living in China, Zheng’s wife and children would be required to renounce U.S.
citizenship or would be ineligible for a host of basic government services including
public schooling. As a result, Zheng’s wife and children would likely stay in the United
States and would experience extended separation from Zheng. The IJ also weighed
equitable factors in Zheng’s case, including Zheng’s supportive family and his steadfast
maintaining of his innocence of the crimes of which he was convicted, in exercising his
discretion to grant Zheng’s application for adjustment of status.
The Government appealed the IJ’s decision to the BIA. On December 22, 2017,
the BIA vacated the IJ’s order and denied Zheng’s applications for relief. The BIA
disagreed with the IJ’s conclusion that Zheng’s case satisfied the “extreme and
exceptionally unusual hardship” standard. The BIA also conducted a de novo review of
the IJ’s favorable exercise of discretion in granting Zheng’s adjustment of status and
concluded a favorable exercise of discretion was not warranted.
II.
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have
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jurisdiction under 8 U.S.C. § 1252.
Our jurisdiction to review the BIA’s decision is limited. We may not review the
BIA’s exercise of discretion in denying relief to Zheng. Id. § 1252(a)(2)(B). Because
Zheng is removable by reason of a covered criminal offense under 8 U.S.C.
§ 1227(a)(2)(B)(i), we are further prevented from reviewing any aspect of the BIA’s final
order of removal against him, with one exception: we retain jurisdiction to consider any
“constitutional claims or questions of law.” Id. § 1252(a)(2)(C)–(D). In other words, “[t]o
fall under § 1252(a)(2)(D)’s grant of jurisdiction, an issue must be either a ‘purely legal
inquir[y]’ or raise a ‘colorable’ claim that a constitutional violation has occurred.”
Rachak v. Att’y Gen., 734 F.3d 214, 216 (3d Cir. 2013) (quoting Roye v. Att’y Gen., 693
F.3d 333, 339 (3d Cir. 2012)).
III.
On appeal, Zheng contends the BIA erred by exercising de novo review of the IJ’s
factual findings rather than accepting them unless clearly erroneous. Zheng also contends
the BIA’s opinion was not sufficiently detailed in its analysis to satisfy Zheng’s due
process rights.
First, we note, under the BIA’s decision, Zheng is subject to removal for two
reasons: the BIA’s denial of his waiver of inadmissibility and its denial of his request for
an adjustment of status. He does not challenge the ruling denying his application for an
adjustment of status. Thus, we need only examine whether the BIA correctly denied his
request for a waiver of inadmissibility.
The BIA must review an IJ’s findings of fact under the clearly erroneous standard
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but may consider “questions of law, discretion, and judgment and all other issues in
appeals from decisions” de novo. 8 C.F.R. §1003.1(d)(3)(i)-(iii). Here, the BIA found,
and we agree, that the Zheng family’s circumstances, including likely future outcomes,
are factual questions. The question of whether these facts constitute extreme and
exceptionally unusual hardship involves the discretionary application of a legal standard.
Thus, although the BIA must defer to the IJ’s findings of fact where not clearly
erroneous, the BIA had authority to “review without deference the ultimate conclusion
that the findings of fact do not meet the legal standard.” Myrie v. Att’y Gen., 855 F.3d
509, 516 (3d Cir. 2017). Zheng contends, though, that the BIA rejected or ignored a
portion of the IJ’s factual findings, without applying the clearly erroneous standard in
doing so.
When the BIA intends to disturb findings of fact on the grounds that they are
clearly erroneous, it must “apply the clearly erroneous standard in such a way that
reviewing courts understand that standard to be in play.” Kaplun v. Att’y Gen., 602 F.3d
260, 272 n.10 (3d Cir. 2010). Here, the BIA has not made it evident that it found any of
the IJ’s findings to be clearly erroneous. Thus, if the BIA nonetheless rejected or
contradicted the IJ’s factual findings, that might indeed exceed its authority to review. A
fair reading of its opinion instead shows the BIA accepted the IJ’s findings and disagreed
with its legal conclusion that they met the standard for hardship. The BIA “disagree[d]
with the Immigration Judge that the respondent has shown exceptional and unusual
hardship because the Chinese nationality law and household registration requirements
would make it impossible for [Zheng’s] wife and Children to live in China and maintain
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their United States citizenship.” App. 14. In other words, the BIA accepted the IJ’s
findings about the impact of Chinese legal requirements but disagreed that the choice
between giving up U.S. citizenship and facing family separation constituted extreme and
exceptionally unusual hardship. Contrary to Zheng’s suggestion, the BIA restated and did
not ignore, mischaracterize, or contradict the IJ’s findings. 1 Zheng does not identify a
specific factual discordance between the two opinions, but instead implicitly invites us to
“‘rehash’ the IJ’s determination of whether an alien meets this hardship requirement,” a
discretionary decision which is outside our jurisdiction to review. Patel v. Att’y Gen., 619
F.3d 230, 233 (3d Cir. 2010) (quoting Pareja v. Att’y Gen., 615 F.3d 180, 187 (3d Cir.
2010)).
Zheng’s due process argument is also unavailing. An alien in removal proceedings
is entitled to due process, and we have identified a limited set of rights encompassed by
this protection, including the one at issue here: “an individualized determination of his [or
her] interests.” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Zheng contends the
BIA’s opinion violated his right to due process because his extreme and exceptionally
unusual hardship claim was rejected “in a few lines, devoid of meaningful factual or legal
analysis.” Pet’r. Br. 20. We find the BIA’s consideration of this issue was sufficient to
meet the constitutional due process standard.
The BIA is entitled to a “presumption of regularity,” meaning Zheng bears the
1
For impermissible treatment of IJ fact findings, see, for example, Waldron v. Holder,
688 F.3d 354, 361 (8th Cir. 2012), which holds that the IJ deviated from the standard of
review, in evaluating extreme and exceptionally unusual hardship in a criminal alien
waiver of inadmissibility case, when it made an “improper finding of fact that inherently
contradicts many of the IJ’s factual findings.” Id.7
burden of proving “the BIA did not review the record when it considered the appeal.”
Abdulai, 239 F.3d at 550 (quoting McLeod v. INS, 802 F.2d 89, 95 n.8 (3d Cir. 1986)). In
Abdulai, we found that where the BIA demonstrated it was aware of the basic facts and
evidence of the case, and had found them sufficient to meet the relevant legal standard,
the alien’s due process rights had been met. Id. The BIA’s opinion here is similarly
sufficient. The BIA took note of relevant evidence including the IJ’s finding that “the
Chinese nationality law would make it impossible for [Zheng’s] wife and children to live
in China and maintain their United States citizenship,” it identified relevant case law, and
it determined Zheng had not shown “his removal will cause his wife and children to
suffer hardships that are ‘substantially beyond’ those which would be expected to result
from an alien’s removal.” App. 14.
IV.
For the foregoing reasons, we will deny the petition.
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