Zheng v. Eric H. Holder Jr.

• Decision Date: 06 May 2011
• Docket Number: 08–71663.,Nos. 06–75258,s. 06–75258
• Citation: 644 F.3d 829
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: XIAO FEI ZHENG, aka Eddie Zheng, Eddy Zheng, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.Xiao Fei Zheng, aka Eddie Zheng, Eddy Zheng, Petitioner,v.Eric H. Holder Jr.,* Attorney General, Respondent.

644 F.3d 829

11 Cal. Daily Op. Serv. 5427

2011 Daily Journal D.A.R. 6527

XIAO FEI ZHENG, aka Eddie Zheng, Eddy Zheng, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.Xiao Fei Zheng, aka Eddie Zheng, Eddy Zheng, Petitioner,

v.Eric H. Holder Jr.,* Attorney General, Respondent.

Nos. 06–75258

08–71663.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 2010.Filed May 6, 2011.

Zachary Nightingale and Avantika Shastri, San Francisco, California, for petitioner Xiao Fei Zheng.Sarah Maloney, Department of Justice, Washington, D.C., for respondent Eric H. Holder Jr., Attorney General.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A038–049–471.Before: MARY M. SCHROEDER, SIDNEY R. THOMAS, and RONALD M. GOULD, Circuit Judges.

OPINION

SCHROEDER, Circuit Judge:

Petitioner Xiao Fei “Eddy” Zheng, a native and citizen of China, petitions for review of two final orders of the Board of Immigration Appeals (BIA). In the first, the BIA denied Petitioner relief under former § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), and denied Petitioner protection under the Convention Against Torture (CAT). In the second, the BIA denied Petitioner's motion to reopen his CAT claim based on alleged changed country conditions, and refused to sua sponte reopen Petitioner's application for § 212(c) relief to consider Petitioner's newly acquired equities. We grant the petition for review with respect to the denial of § 212(c) relief and therefore do not reach the BIA's denial of a sua sponte reopening of Petitioner's § 212(c) proceedings. We deny relief on the CAT claims.

This case is unusual in that the Petitioner was convicted at the age of sixteen of very serious crimes, served nineteen years in prison followed by immigration detention, yet demonstrated, beyond his own rehabilitation, a genuine desire and commitment to prevent youth from following in his criminal footsteps. Petitioner performed substantial service to the community, through his youth work, leading to a grant of parole by the California Board of Prison Terms, and he continued such work while in immigration proceedings.

The dispositive issue in this case is whether the BIA should have considered Petitioner's value and service to the community in assessing all of the relevant concerns bearing on his eligibility for § 212(c) relief. This court has consistently emphasized that in considering eligibility for § 212(c) relief, the BIA must consider all relevant circumstances, and the BIA itself has recognized that such circumstances include value and service to the community. Because the BIA in this case did not indicate that it had considered Petitioner's value and service to the community, we grant the petition for review with respect to Petitioner's application for § 212(c) relief and remand for consideration of all relevant factors.

I. Factual Background

Petitioner was admitted to the United States as a lawful permanent resident in November of 1982. He is married to a United States citizen. His mother, father, sister, and brother are also United States citizens.

In 1986, at the age of sixteen, Petitioner was convicted pursuant to a California plea agreement of criminal offenses involving kidnaping, robbery, and a firearm violation. He was sentenced as an adult and was incarcerated for 19 years. While incarcerated, among many other activities, Petitioner learned English, obtained his GED, earned an Associate of Arts Degree in Liberal Arts, co-facilitated a course entitled “Alternatives to Violence,” developed a curriculum targeting at-risk immigrant teenagers, currently being used by community service providers in Northern California, and developed a business plan for a non-profit agency.

Petitioner applied for parole from prison on the basis of his extraordinary rehabilitation and positive equities. He supported his application with a letter of family support if he were removed to China. Petitioner was released from prison on parole in 2005 and was placed in removal proceedings immediately thereafter.

Since his release from prison and subsequent immigration detention, Petitioner has continued to engage in violence-prevention work in the immigrant and youth communities of Northern California working as Case Manager and later as Project Coordinator for the Community Response Network—Asian Pacific Islanders. Given Petitioner's efforts to prevent other young people from engaging in criminal activity, Petitioner won the support of community leaders, politicians, and members of the law enforcement community who wrote letters of support to the immigration court on Petitioner's behalf.

II. Procedural History

Petitioner was placed in immigration detention following his release from prison and charged with removability for having been convicted of an aggravated felony crime of violence, an aggravated felony theft offense, and a firearms offense. The Immigration Judge (IJ) found Petitioner removable on all three grounds. The IJ then concluded that Petitioner's case did not present exceptional circumstances and denied Petitioner's application for § 212(c) relief and adjustment of status. The IJ also denied relief under CAT on the ground that Petitioner's claims were speculative or insubstantial. The IJ reasoned that because of the financial and social support Petitioner could expect from his relatives, if removed to China, Petitioner lacked the vulnerable circumstances he claimed would make him a likely torture victim.

Petitioner appealed to the BIA, which found him “deportable as charged” and dismissed his appeal. Citing In re Marin, 16 I. & N. Dec. 581 (BIA 1978), abrogated on other grounds by In re Edwards, 20 I. & N. Dec. 191 (BIA 1990), the BIA noted Petitioner's rehabilitation but concluded that Petitioner had not “identified unusual or outstanding equities sufficient to overcome his serious criminal conviction” to obtain § 212(c) relief. The BIA did not mention Petitioner's service work for youth in the community. The BIA also found “no reversible error” in the IJ's denial of CAT relief and held that the IJ's finding regarding the expected support from Petitioner's family, if Petitioner were removed to China, “was not clearly erroneous.” Petitioner timely filed a petition for review, No. 06–75258, of the BIA's order dismissing his appeal.

Petitioner then filed a motion to reopen with the BIA alleging changed country conditions and newly acquired equities. The BIA denied the motion finding the changed country conditions immaterial to Petitioner's case and concluding that the newly acquired equities did not constitute exceptional circumstances warranting reopening. Petitioner filed a timely petition for review, No. 08–71663, of the BIA's order denying his motion to reopen. We consolidated the two petitions for review. See 8 U.S.C. § 1252(b)(6).

III. The BIA failed to consider all relevant factors to determine Petitioner's eligibility for § 212(c) relief.

Petitioner contends that the BIA erred as a matter of law in denying his application for a waiver of inadmissibility under § 212(c) because it failed to conduct a complete, individualized, and reasoned analysis of the equities and adverse factors bearing on Petitioner's application. Specifically, Petitioner contends that the BIA ignored the extensive evidence presented to demonstrate his value and service to the community.

We have jurisdiction to decide petitions for review brought by an alien who is removable for having committed an aggravated felony or a firearm violation when the petition for review presents a constitutional issue or question of law. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing ... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals ....”); see also Anaya–Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir.2010) (“[W]e retain jurisdiction to review questions of law raised upon a petition for review.” (citation and quotation marks omitted)).

Section 212(c) provides relief from removal, at the discretion of the Attorney General, to permanent residents who pled guilty to crimes prior to 1996. INS v. St. Cyr, 533 U.S. 289, 294–98, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Although Congress repealed § 212(c) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Supreme Court ruled in St. Cyr that permanent residents who pled guilty to crimes prior to the repeal could still apply for § 212(c) relief if they would have been eligible at the time of their plea. Id. at 326, 121 S.Ct. 2271.

This court has repeatedly emphasized that the BIA abuses its discretion when it fails to consider all favorable and unfavorable factors bearing on a petitioner's application for § 212(c) relief. See Rashtabadi v. I.N.S., 23 F.3d 1562, 1571 (9th Cir.1994) (“The failure to consider an important factor or to make a record of considering it constitutes an abuse of discretion.”); see also Vargas–Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir.2007) (“The BIA or the IJ decides whether an applicant is entitled to a favorable exercise of agency discretion on a case by case basis by taking into account the social and humane considerations presented in the applicant's favor and balancing them against the adverse factors that evidence the applicant's undesirability as a permanent resident.”) (citations and quotation marks omitted); Dragon v. INS, 748 F.2d 1304, 1306 (9th Cir.1984) (explaining that the BIA is “required to weigh all factors presented, both favorable and unfavorable”). There are no rigid requirements beyond the need for comprehensive consideration. See Marin, 16 I. & N. Dec. at 584 (BIA 1978) (explaining that no “inflexible test” has been adopted, that “the record as a whole” must be reviewed, and that the basis for the decision “must be enunciated in [the] opinion”).

Consideration of all relevant...