Zhang v. Immigration & Naturalization Service

United States Court of Appeals
For the First Circuit

No. 02-1990

SHENGLI ZHANG,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Selya, Circuit Judge,
and Siler,* Senior Circuit Judge.

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.

November 3, 2003

*
Of the Sixth Circuit Court of Appeals, sitting by
designation.
 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

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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.

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 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

Sankarpillai 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;

1
Specifically, Zhang challenges the IJ’s use of Zhang’s
demeanor in court (laughing), lack of education and employment,
political beliefs, as well as failing to take cultural differences
into account when making the credibility determination.

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these motions are appealed separately. See Stone v. INS, 514 U.S.

386, 405-06 (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

2
Stone interpreted a different version of the Immigration and
Naturalization Act, much of which was repealed by the IIRIRA.
However, Congress reenacted the central provision that the Stone
Court used to make its determination, and the circuits continue to
cite Stone for the proposition that filing a motion to reopen or
reconsider does not toll the time for appealing a denial of asylum.
See Nascimento v. INS, 274 F.3d 26, 28 (1st Cir. 2001).

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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

3
Specifically, Zhang submitted an affidavit from embassy
employee Martin corroborating his scaling the embassy wall and a
document (verdict of extending Laogai) evidencing his time spent in
a labor camp.

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

Motions for reconsideration shall state “the reasons for the motion

by specifying the errors of fact or law in the prior Board decision

and shall be supported by pertinent authority.” 8 C.F.R. §

3.2(b)(1). The purpose of a motion to reconsider is not to raise

new facts, but to demonstrate that the BIA erred as a matter of law

or fact. We again review the BIA determination for an abuse of

discretion. Nascimento v. INS, 274 F.3d 26, 28 (1st Cir. 2001).

In the reconsideration context, we will find an abuse of discretion

if the denial was made without a “rational explanation,

inexplicably departed from established policies, or rested on an

impermissible basis” (such as race). Id.

In his notice of appeal to the BIA, appealing the original IJ

denial of asylum, Zhang asserted that the IJ erred in her

determinations on (1) Zhang’s credibility, (2) his failure to

establish past persecution, (3) his well founded fear based upon

his U.S. political activities, and (4) the insufficiency of his

explanation of why the Chinese government did not harm him when he

returned to China. The BIA subsequently rejected Zhang’s brief for

lack of service on the INS. Although given the opportunity, Zhang

failed to refile any brief with the BIA.

After the BIA denied Zhang’s appeal of the original asylum

determination, Zhang’s timely motion to reconsider asserted that

the IJ erred in determining his credibility and had failed to

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consider his current political demonstrations against the Chinese

government in her “well founded fear” analysis. The BIA denied

reconsideration, stating that Zhang was using the motion to

“correct his failure to file a brief and to further expand on the

summary statements provided on the Notice of Appeal,” and thus

declined to reconsider because Zhang raised “arguments not

previously articulated on appeal.”

The abuse of discretion standard simply requires a rational

explanation, and the BIA explained that it denied the motion

because it raised previously undeveloped arguments. This circuit

has a similar rule, refusing to consider arguments raised but not

briefed. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (documenting “settled appellate rule that issues averted to

in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived”). Moreover, we have recently

upheld a BIA denial for reconsideration, because the BIA found the

alien’s reasons for reconsideration (not appeal, like Zhang) to be

“conclusory” and “insufficiently detailed” to serve as a basis for

reconsideration. Nascimento, 274 F.3d at 28. Here, because he had

no brief, Zhang had only made the conclusory assertions in his

original notice of appeal. The BIA did not abuse its discretion by

refusing to consider arguments developed for the first time on the

reconsideration appeal.

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 III. CONCLUSION

We affirm the BIA’s denial of Zhang’s motion to reopen and

reconsider, and dismiss Zhang’s appeal of the BIA’s denial of

asylum for lack of jurisdiction.

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