Guangzu Zheng v. Lynch

14-802
Zheng v. Lynch
BIA
Segal, IJ
A098 852 519
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
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
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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 23rd day of October, two thousand fifteen.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
GUANGZU ZHENG, AKA GUANG ZHENG, AKA
GUANG ZU ZHENG, AKA GUANG Z. ZHENG,
Petitioner,
v. 14-802
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Ming Hai, Flushing, NY.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General, Civil Division;
Blair T. O’Connor, Assistant
Director; Eric W. Marsteller, Senior
Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Guangzu Zheng, a native and citizen of the People’s
Republic of China, seeks review of a February 27, 2014,
decision of the BIA affirming the October 23, 2013, decision
of an Immigration Judge (“IJ”) ordering his removal and
denying his application for withholding of removal and
relief under the Convention Against Torture (“CAT”). In re
Guangzu Zheng, No. A098 852 519 (B.I.A. Feb. 27, 2014),
aff’g No. A098 852 519 (Immig. Ct. N.Y. City Oct. 23, 2013).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA’s decision, that
is, minus the IJ’s alternative bases for denying relief that
the BIA did not consider. Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005); see Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)
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(explaining that the Court “may consider only those issues
that formed the basis for [the BIA’s] decision.”). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009).
I. Removability
Under 8 U.S.C. § 1252(a)(2)(C) and (D), our
jurisdiction is limited to constitutional claims and
questions of law because Zheng is removable for having been
convicted of a controlled substance offense. Zheng conceded
removability on this ground both before the IJ and on appeal
to the BIA, and is bound by these concessions. See Hoodho
v. Holder, 558 F.3d 184, 192-93 (2d Cir. 2009). Further,
his argument, that immigration authorities prevented him
from complying with a condition of his guilty plea that
would have prevented a felony conviction, takes issue with
the validity of his conviction, not with whether it is a
removable offense. A collateral attack on a conviction is
not available in a removal proceeding. See Lanferman v.
BIA, 576 F.3d 84, 88 (2d Cir. 2009) (per curiam).
Zheng does not challenge the agency’s conclusion that
his assault conviction is a crime involving moral turpitude
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that renders him removable. Yueqing Zhang v. Gonzales, 426
F.3d 540, 541 n.1 (2d Cir. 2005) (declining to review issues
not raised in brief).
II. Eligibility for Relief from Removal
The agency denied withholding of removal, under both
the Immigration and Nationality Act (“INA”) and the CAT, on
the ground that Zheng’s assault conviction was a
particularly serious crime rendering him ineligible for
those forms of relief. Zheng contends that the agency made
a factual error when it found that he used a weapon to
commit the assault.
Withholding of removal, under both the INA and the CAT,
is unavailable to an alien who has been convicted of a
particularly serious crime. 8 U.S.C. § 1231(b)(3)(B)(ii); 8
C.F.R. § 1208.16(d)(2). When considering a felony
conviction for which the term of imprisonment is less than
five years, the IJ must make an individualized inquiry as to
whether the conviction rose to the level of a “particularly
serious crime.” 8 U.S.C. § 1231(b)(3)(B)(iv). The
following factors are considered: “the nature of the
conviction, the circumstances and underlying facts of the
conviction, the type of sentence imposed, and, most
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importantly, whether the type and circumstances of the crime
indicate that the alien will be a danger to the community.”
In re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982); see
also Nethagani v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008)
(applying these factors). We retain jurisdiction to review
whether the agency considered these factors, but the
weighing of the factors is discretionary. See Nethagani,
532 F.3d at 154-55 (holding that statute restricting review
of discretionary decisions does not apply to determination
that crime is particularly serious, but describing the
factor analysis as discretionary). Our role is not to
“reweigh the equities or reassess the facts but to make sure
that the conclusions derived from those weighings and
assessments are judicially sound and supported by the
record.” Novick v. AXA Network, LLC, 642 F.3d 304, 311 (2d
Cir. 2011) (internal citation and quotation marks omitted).
The record reflects that the IJ listed the factors, and
weighed them in light of Zheng’s testimony, presentencing
report, and certificate of disposition. The IJ addressed
each factor, considering: (1) the nature of assault in the
third degree, which involves intentionally causing physical
injury to another person; (2) the circumstances of the
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crime, including that Zheng acted with others, some of whom
used a weapon (a metal baton), to beat the victim, who was
hospitalized; (3) the sentence imposed, which was probation;
and (4) his dangerousness to the community, which was
evident because he attacked the victim violently on two
consecutive days. As the IJ considered each factor, we find
no error in the determination that the assault was a
particularly serious crime. Moreover, Zheng’s allegation of
factual error is belied by the record. Neither the IJ nor
the BIA found that Zheng personally wielded a weapon. In
summarizing Zheng’s testimony, the IJ stated that “[t]he co
defendants used a metal baton to hit the victim,” and the
BIA stated that “the respondent, acting in concert with two
other attackers, struck the victim with a metal baton.,”
meaning that Zheng was responsible for what another
attacked, with whom he acted in concert, did.
Zheng has not raised any challenge in this Court to the
agency’s denial of deferral under the CAT. Accordingly, any
error in that determination has been forfeited. See Yueqing
Zhang, 426 F.3d at 541 n. 1.
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Zheng’s pending
motion for a stay of removal is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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