Zhen Zhu Weng v. Jeff Sessions
685 F. App'x 400
| 6th Cir. | 2017Background
- Zhen Zhu Weng, a Chinese national, entered the U.S. unlawfully in 2009 and later converted to Christianity after meeting his wife, Meirong Zhang.
- At an IJ hearing in 2013, Weng did not file an individual asylum application and instead sought derivative asylum through Zhang; the IJ and counsel discussed that a derivative claim would not suffice if Zhang obtained only withholding or CAT relief.
- The IJ denied relief for Zhang; the BIA affirmed in May 2013. Weng and Zhang missed the deadline to appeal to this court and an out-of-time petition was denied.
- In December 2015 Weng filed a motion to reopen alleging ineffective assistance of prior counsel for failing to advise him to file an individual asylum claim and for failing to notify them of the BIA decision; he also filed an I-589 after the motion.
- The BIA denied reopening as time-barred (finding lack of diligence) and, on the merits, found Weng failed to make a prima facie showing of persecution or present new or material evidence; this appeal followed.
Issues
| Issue | Plaintiff's Argument (Weng) | Defendant's Argument (BIA/Respondent) | Held |
|---|---|---|---|
| Whether ineffective assistance of counsel warrants reopening because Weng relied on counsel’s advice to file only as a derivative | Counsel misadvised Weng not to file an individual asylum application, causing loss of opportunity | Weng failed to show prejudice because he cannot make a prima facie showing of relief even if counsel was deficient | Denied — even assuming equitable tolling, Weng cannot establish a prima facie asylum claim so reopening not warranted |
| Whether equitable tolling excuses the untimely motion to reopen | Weng argues attorney error justifies equitable tolling of the 90‑day filing period | BIA found lack of diligence (IJ asked about individual filing over two years earlier) and rejected tolling | Court assumed tolling arguendo but did not decide; outcome would be same because merits fail |
| Whether Weng made a prima facie showing of asylum (well‑founded fear) | Weng asserts fear of future persecution in China for practicing Christianity | BIA: statement is generalized; he became Christian after leaving China, no past persecution, no specific objective threat shown | Held against Weng — affidavit too general, insufficient to show well‑founded fear or changed country conditions |
| Whether failure to notify of BIA decision caused prejudice by losing appellate rights | Weng contends counsel failed to inform him, depriving appeal opportunity | Mere loss of appellate rights is insufficient; must show that an appeal would have led to relief | Denied — Weng pleaded only loss of the opportunity to appeal without substantive showing he would have prevailed |
Key Cases Cited
- INS v. Abudu, 485 U.S. 94 (1998) (BIA may deny reopening for failure to establish a prima facie case, lack of new material evidence, or denial on discretionary grounds)
- Sako v. Gonzales, 434 F.3d 857 (6th Cir. 2006) (standard of review for motions to reopen and de novo review of ineffective-assistance claims)
- Denko v. INS, 351 F.3d 717 (6th Cir. 2003) (applicant must show prejudice from counsel’s ineffective assistance to reopen)
- INS v. Doherty, 502 U.S. 314 (1992) (motions to reopen are disfavored; requires adequate support for newly presented claims)
- Mapouya v. Gonzales, 487 F.3d 396 (6th Cir. 2007) (well‑founded fear requires subjective and objective components; cannot rely on speculative assertions)
- Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008) (equitable tolling doctrine and factors including petitioner diligence)
- Allabani v. Gonzales, 402 F.3d 688 (6th Cir. 2005) (standards for reviewing BIA decisions for abuse of discretion)
- Hua Tu Lin v. Holder, [citation="412 F. App'x 848"] (6th Cir. 2011) (conversion after emigration undermines showing of past persecution)
- Mateo v. Gonzales, [citation="217 F. App'x 476"] (6th Cir. 2007) (applicant must present reasonably specific information of individualized threat)