Zhao v. Gonzales
| Decision Date | 15 March 2005 |
| Docket Number | No. 03-60681.,03-60681. |
| Parties | Yu ZHAO, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gang Zhou (argued), New York City, for Petitioner.
Russell J.E. Verby (argued), U.S. Dept. of Justice, Dept. of Homeland Sec., David V. Bernal, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, Washington, DC, Hipolito Acosta, U.S. INS, Houston, TX, Caryl G. Thompson, U.S. INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before SMITH and GARZA, Circuit Judges, and VANCE,* District Judge.
Yu Zhao, a native of the People's Republic of China, attempted to enter the United States illegally. At a hearing before an immigration judge ("IJ"), Zhao applied for asylum and withholding of removal. The IJ refused to withhold removal and denied asylum on the ground that Zhao showed neither past persecution nor a well-founded fear of future persecution.
The Board of Immigration Appeals ("BIA" or "Board") dismissed Zhao's appeal. He filed a motion for reconsideration, contending that his fear of future persecution was reasonable and that the IJ should have given more weight to certain documentary and testimonial evidence.
Zhao petitioned this court to review the BIA's determinations; he consolidated that petition with the one he had filed before moving for reconsideration. We grant the petition for review and reverse the Board's decision.
Posing as an American citizen, Zhao tried to enter the United States illegally in March 2000. The government issued a Notice to Appear, alleging that Zhao was subject to removal for falsely representing himself as a citizen. Zhao conceded that he was subject to removal but asked for, and was granted, permission to file an application for asylum and withholding of deportation, which he did in July 2000.
At his initial hearing, Zhao attempted to submit, among other things, three contested documents to the IJ: two written notices issued to him from Guantou Town's Village Committee demanding his appearance at the Town Government and a police summons demanding his appearance at the police station. The government objected, arguing that the documents did not conform to 8 C.F.R. § 287.6 (2003), the regulation governing proof of official foreign records.
The IJ agreed with the government but gave Zhao more time to authenticate the documents. In February 2002 the IJ held a hearing on the merits of Zhao's application for asylum and withholding of deportation. Zhao had not authenticated the documents pursuant to § 287.6 by the beginning of that hearing, so the IJ excluded them.
Zhao was the only person to testify at the hearing, but the IJ credited all of his testimony, which established the following: Falun Gong is a movement that professes to help its practitioners gain self-understanding through spiritual and physical development. Zhao started to practice Falun Gong in 1999 to cure his "dizzy spells" and back pain. Zhao began his Falun Gong practice under the tutelege of Master Zhao Kai Feng, a mentor he had known since childhood.
In April 1999, Zhao joined about forty other participants in a silent protest outside the Town Hall for Quanto County in Fujian Province. That protest and Zhao's participation in it were filmed. Later that year, while he was visiting a friend, Zhao's mother told him the police had been looking for him and that authorities had arrested Feng. She cautioned Zhao not to return home.
Zhao bicycled to his aunt's house and hid for several weeks. He then learned that the police had arrested other Falun Gong followers. After hiding out at his aunt's, Zhao traveled by bus to Fuzhou City, where he helped his uncle at a construction site, but this activity was limited, and he was there primarily to "hide out." During his stay in Fuzhou City, Zhao's mother visited him and told of further police visits to their house.
At the end of February 2000, Zhao traveled to Beijing by bus because the government had begun a massive crackdown on Falun Gong practitioners. Zhao's family soon arranged for him to travel to the United States. Zhao found it too difficult to hide in the People's Republic of China because authorities were "hunting down" Falun Gong practitioners everywhere, and he believed the United States would afford him the protection he needed. In March 2000, he traveled to the United States with his fake passport.
Since then, Zhao has learned that approximately 200 to 300 Falun Gong practitioners have died during torture and that about 50,000 practitioners have been exiled or sentenced to hard labor without a conviction. He learned that the Chinese authorities had incarcerated some practitioners in mental facilities and injected them with medicine that "mess[ed] up" their nervous systems. Zhao was afraid to return to the People's Republic of China, where he believes the authorities will imprison and torture him.
Zhao practices Falun Gong every morning for twenty to thirty minutes. He has participated in one public, organized Falun Gong activity in the New York/New Jersey area since his arrival there.
After hearing Zhao's testimony, the IJ denied the application for asylum and withholding of deportation. Although the IJ found that Zhao was a credible witness and (grudgingly) that Falun Gong falls within the State Department's operative definition of "religion," the IJ found that Zhao had not established either past persecution or a well-founded fear of future persecution on account of a protected characteristic.
On appeal, the BIA, in a per curiam opinion, affirmed the IJ's decision under 8 C.F.R. § 1003.1(e)(5) (2003). The BIA affirmed the IJ's determination that Zhao had not established past persecution and that his fear of future persecution was not objectively reasonable. The Board also noted that Zhao had "testified that he currently seldom practices Falun Gong and, when he does, he practices in private." The Board found that Zhao had never had any contact with government officials "despite traveling about China for 6 months after the police expressed interest in him."
Zhao timely filed a motion to reconsider, re-urging the arguments he had raised before the IJ and, for the first time, including an appeal of the IJ's exclusion of his three unauthenticated documents. He also sought to submit other items documenting worsening conditions in the People's Republic of China.
In December 2003, the BIA denied reconsideration. It declined to consider the IJ's evidentiary ruling because Zhao had failed to raise it in his initial appeal. Zhao timely petitioned this court to review both the BIA's initial decision affirming the IJ's findings and its denial of his motion to reopen.
Seeking to introduce the unauthenticated documents and the two State Department reports, Zhao contends that the BIA erred in rejecting his motion to reconsider. Although Zhao labels his motion as one for reconsideration, he both re-urges current documents and arguments and seeks to submit new evidence.
Because he seeks to introduce new evidence, his motion is also one to reopen. See Pierre v. INS, 932 F.2d 418, 421-22 (5th Cir.1991). These two types of post-judgment motion are distinguished primarily by the fact that a motion for reconsideration does not present new evidence to the BIA. Irrespective of how Zhao labels it, we will consider his motion as both one to reopen and one to reconsider. See id. at 422.
We review the denial of a motion to reconsider for abuse of discretion.1 A motion for reconsideration urges an adjudicative body to re-evaluate the record evidence only. See Ghassan, 972 F.2d at 638. Insofar as Zhao's motion was one for reconsideration, his effort fails because he did not identify a change in the law, a misapplication of the law, or an aspect of the case that the BIA overlooked. See Pierre, 932 F.2d at 422.
Zhao sought to reopen the record to introduce two new documents. Those documents are (1) the U.S. Department of Justice International Religious Freedom Reports ("2002 Religious Freedom Reports," issued in October 2002) and (2) the U.S. Department of Justice Country Reports on Human Rights Practices for 2002 ("2002 Country Reports," issued in March 2003).
In this circuit, the degree to which 8 U.S.C. § 1252(a)(2)(B)(ii) (2000) precludes judicial review of motions to reopen immigration proceedings is an open question.2 We have pretermitted this "thorny" question where there were alternative means of resolving the relevant issues. See, e.g., Assaad, 378 F.3d at 474 (). We now at last address the issue. Although the parties did not raise or brief this question, we must examine the basis of our subject matter jurisdiction, on our own motion if necessary.3
Section 1252(a)(2)(B)(ii) proscribes judicial review of "any . . . decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General" (emphasis added). The government does not raise the issue, but there is a question whether § 1252 bars judicial review of all motions to reopen, and we may not exercise appellate jurisdiction that we do not have. In Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir.2004), the court held that § 1252(a)(2)(B)(ii) does not impose a complete jurisdictional bar. The instant circumstances present a question that is in all meaningful respects identical, and we agree with the Ninth Circuit's reasoning.
The subsection explicitly excepts asylum determinations, made pursuant to § 1158(a), from its jurisdictional prohibitions. The operative statutory text precludes judicial review of all actions specified as...
To continue reading
Request your trial
-
Castaneda-Castillo v. Gonzales
...Ventura nor Thomas requires us to remand an issue to the agency when the agency has already considered the issue."); Zhao v. Gonzáles, 404 F.3d 295, 311 (5th Cir.2005) (stating that the court was not required to remand under the ordinary remand rule because the BIA had already decided the T......
-
Offiiong v. Holder
...and thus they are reviewable by the courts. Ayanbadejo v. Chertoff, 517 F.3d 273, 278 (5th Cir.2008), citing Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.2005). See also Ordonez Orozco v. Chertoff, Civ. A. No. B–07–153, 2008 WL 5155728, *2 (S.D.Tex. Dec. 8, 2008); and Hakamuddin v. Chertoff......
-
Residential Fin. Corp. v. U.S. Citizenship & Immigration Servs.
...have rejected that interpretive model. See, e.g., Zafar v. U.S. Atty. Gen., 461 F.3d 1357, 1361 (11th Cir.2006); Zhao v. Gonzales, 404 F.3d 295, 303 & n. 6 (5th Cir.2005). We, too, recently have rejected it, insisting that the relevant commitment to agency discretion must be found in the st......
-
Aguilar v. U.S. Immig. and Customs Enforcement
...view: as other courts have recognized, the plain language of the statute calls that statement into question. See Zhao v. Gonzales, 404 F.3d 295, 303 n. 6 (5th Cir.2005) (concluding that "Van Dinh . . . misstates the statutory text" and "analyze[s] statutory language that Congress did not ad......
-
The rising bar for persecution in asylum cases involving sexual and reproductive harm.
...just restrictions or threats to life and liberty" (quoting Chaib v. Ashcroft, 397 F. 3d 1273, 1277 (10th Cir. 2005)); Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005) (defining persecution as "[t]he infliction of suffering or harm, under government sanction, upon persons who differ in a ......