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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