Xiao Fei Zheng v. Holder
644 F.3d 829
| 9th Cir. | 2011Background
- Zheng, a native and citizen of China, entered the U.S. as a lawful permanent resident in 1982 and is married to a U.S. citizen.
- At 16, Zheng was convicted in California of kidnapping, robbery, and a firearm offense; he was incarcerated for 19 years as an adult.
- During imprisonment Zheng obtained the GED and an Associate's degree, developed youth-oriented curricula, and engaged in rehabilitation-like activities.
- Upon parole in 2005 Zheng began extensive community-violence-prevention work, gaining broad support from community leaders and law enforcement.
- The IJ denied § 212(c) relief and CAT relief; the BIA affirmed deportability and denied CAT relief, and denied a motion to reopen § 212(c).
- The Ninth Circuit granted review of the § 212(c) denial, remanding for consideration of Zheng's value and service to the community; CAT denial was upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA erred by not weighing all relevant factors | Zheng | Holder | Remand for full consideration. |
| Whether Zheng is entitled to CAT relief given potential torture risk | Zheng | Holder | CAT relief denial affirmed. |
| Whether the BIA abused its discretion on the motion to reopen for changed country conditions | Zheng | Holder | Denial affirmed. |
| Whether the BIA must expressly consider value and service to the community when evaluating § 212(c) relief | Zheng | Holder | Remand to consider all relevant factors, including value and service to the community. |
Key Cases Cited
- Rashtabadi v. I.N.S., 23 F.3d 1562 (9th Cir. 1994) (failure to consider an important factor constitutes abuse of discretion)
- Vargas-Hernandez v. Gonzales, 497 F.3d 919 (9th Cir. 2007) (weigh favorable and unfavorable factors including value and service to the community)
- Dragon v. INS, 748 F.2d 1304 (9th Cir. 1984) (remand to evaluate all relevant factors expressly)
- Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) (jurisdiction to review meritorious issues in CAT determinations)
- Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010) (retains jurisdiction to review questions of law raised upon petition for review)
- INS v. St. Cyr, 533 U.S. 289 (2001) (pre-repeal § 212(c) relief available to those eligible at plea time)
- I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) (to reverse, evidence must compel a different conclusion)
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (CAT standard requires showing more likely than not of torture)
- Toufighi v. Mukasey, 538 F.3d 988 (9th Cir. 2008) (BIA must consider all factors in motion to reopen)
- Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004) (broad discretion on motion to reopen; must address favorable and unfavorable factors)