Zhang v. Immigration and Naturalization Service, 02-1990.

• Decision Date: 03 November 2003
• Docket Number: No. 02-1990.,02-1990.
• Citation: 348 F.3d 289
• Parties: Shengli ZHANG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — First Circuit

348 F.3d 289

Shengli ZHANG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-1990.

United States Court of Appeals, First Circuit.

Heard September 5, 2003.

Decided November 3, 2003.

Scott A. Conwell, with whom Venable, Baetjer, Howard and Civiletti, LLP, and Kevin M. Reilly were on brief, for petitioner.

William C. Peachey, Office Of Immigration Litigation, with whom Linda S. Wernery, Senior Litigation Counsel, Office of Immigration Litigation, and Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, were on brief for respondents.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SILER,^* Senior Circuit Judge.

SILER, Senior Circuit Judge.

Petitioner Shengli Zhang, a native and citizen of China, petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA), affirming the immigration judge's (IJ's) denial of his requests for asylum and for withholding of removal, and review of the BIA's subsequent denial of his motion to reopen and reconsider. For the reasons that follow, Zhang's petition for review of the BIA's order denying asylum and withholding of removal is DISMISSED as untimely, and his petition regarding the BIA's subsequent order denying reopening and reconsideration is DENIED.

I. BACKGROUND

Zhang is a promoter of democracy for his native land of China. In 1982, he scaled the wall of the U.S. Embassy in China seeking asylum. U.S. Embassy Official Charles Martin delivered Zhang to the Chinese authorities, who put him in a labor camp from which he escaped a year later. Twenty days into his escape, Chinese authorities recaptured Zhang and gave him three more years at hard labor for "counter-communist behaviors." After prison, Zhang received a license to sell cloth from the Chinese government and eventually obtained a visa to travel to the United States.

In 1996, Zhang came to the United States to seek asylum, but returned unsuccessful to China ten days later. Without incident of persecution, Zhang stayed in China until he returned to the United States in 1997. Since his arrival in the United States, Zhang has been active in pro-China-democracy protests.

Zhang overstayed his visa, and the Immigration and Naturalization Service (INS) filed a deportation action. Zhang sought relief from deportation in the form of asylum and withholding of removal. On November 7, 2000, the IJ denied asylum, finding Zhang "not a credible witness," but even in the most favorable light, also found Zhang failed to meet his burden of proof. Zhang filed a timely notice of appeal with the BIA, but failed to refile his brief after it was disallowed for lack of service on the INS. The BIA affirmed the IJ, on the basis that the IJ "provided specific reasons" for finding Zhang failed to meet his burden of proof and that "significant doubts were cast" on Zhang's corroborative evidence.

On April 29, 2002, Zhang filed a timely motion with the BIA to reopen and reconsider its decision. The BIA denied reconsideration because Zhang was trying to "correct his failure to file a brief and to further expand on the summary statements provided on the Notice of Appeal," and because Zhang raised "arguments not previously articulated on appeal." The BIA denied reopening because all of Zhang's new evidence was supportive of his credibility, which the BIA found immaterial in light of the alternative ground that, even assuming Zhang's credibility, he had failed to sustain his burden of proof.

II. DISCUSSION

The Original BIA Denial of Asylum

Zhang spends most of his brief attacking the IJ's denial of asylum and the BIA's subsequent affirmance on March 28, 2002. Citing the correct "substantial evidence" standard of review, see Gailius v. INS, 147 F.3d 34, 43 (1st Cir.1998), Zhang appeals the credibility determinations¹ of the IJ and BIA, and their applications of the "well founded fear" of future persecution standard. Unfortunately for Zhang, his petition to this court on August 13, 2002, for review of these initial determinations came well after the thirty-day time limit imposed by the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-3546 (codified in scattered sections of Title 8 and 18) (IIRIRA).

Under the IIRIRA, all final BIA orders must be appealed to this court within thirty days. 8 U.S.C. § 1252(b)(1). This need to timely appeal is a strict jurisdictional requirement. See Sankarapillai v. Ashcroft, 330 F.3d 1004, 1005-06 (7th Cir.2003) (collecting cases). Moreover, this time to appeal asylum orders continues to run despite Zhang's motions to reopen and reconsider; these motions are appealed separately. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).²

In this case, because Zhang appealed the BIA's March 28, 2002, denial of asylum well over the thirty-day limit, we lack jurisdiction to review the underlying denial. However, Zhang timely appealed the BIA's denial of his motion to reopen and reconsider.

The BIA's Denial of the Motion to Reopen

A motion to reopen must "state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material." 8 C.F.R. § 3.2(c). Courts recognize two independent, but non-exclusive grounds on which the BIA may deny a motion to reopen: (1) failure to establish a prima facie case, and (2) failure to introduce previously unavailable, material evidence. See Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir.2003). Even if Zhang meets these requirements, the BIA may still use its discretion to deny relief. Id.; 8 C.F.R. § 3.2(a). We can only overturn the BIA's decision for an abuse of discretion. Herbert v. Ashcroft, 325 F.3d 68, 70 (1st Cir.2003). Because Zhang failed to introduce any new material evidence, the BIA did not abuse its discretion in denying Zhang's motion to reopen.

The BIA has rationally explained and supported why it denied Zhang's motion to reopen. It found the only new evidence Zhang offered simply corroborated his testimony about scaling a wall of the U.S. Embassy and his time spent in a labor camp.³ While this evidence lent credit to his previous testimony, the BIA accepted Zhang's testimony as credible in its determination, thus making this evidence superfluous. Even Zhang frames this evidence in his brief as "corroborating" his earlier testimony.

The BIA accepted all of Zhang's testimony as credible, but based its denial on the alternative ground that Zhang failed to sustain his burden of proof. Particularly, it found Zhang failed to meet his burden of proof because he had gone back to China without incident and had been able to secure employment after his release from the labor camp. Since Zhang's new evidence does nothing to contradict this alternative ground, and simply corroborates his earlier testimony of events prior to his employment and travel back to China, the BIA did not abuse its discretion in denying Zhang's motion to reopen.

The BIA's Denial of Motion to Reconsider

Zhang's motion for reconsideration does not fare any better....