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lawyerhearingmotionasylum

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Zeng v. Gonzales

Facts

Zeng is a native and citizen of the People's Republic of China who entered the United States in August 2001. He applied for asylum based on the forced sterilization of his wife under China's family planning policy. At his hearing, Zeng's lawyer was unprepared, failing to provide necessary evidence, leading the IJ to deny his asylum application and order his removal. After the BIA upheld this decision, Zeng sought to reopen the case with new evidence, which the BIA deemed insufficient.

Zeng is a native and citizen of the People's Republic of China. He entered the United States at Los Angeles International Airport on August 29, 2001, and removal proceedings were initiated against him about two weeks later. Zeng's attempt to enter the United States stemmed, he said, from China's family planning policy that allows each family to have only one child.

Issue

Did the BIA abuse its discretion in denying Zeng's motion to reconsider or reopen his removal proceedings based on the lack of new evidence?

Rule

A motion to reopen must establish a prima facie case for the underlying substantive relief sought and must offer previously unavailable material evidence. The BIA retains discretion to deny the motion even if both showings are made.

A motion to reopen must establish 'a prima facie case for the underlying substantive relief sought.' Fesseha v. Ashcroft , 333 F.3d 13, 20 (1st Cir. 2003) (quoting INS v. Abudu , 485 U.S. 94, 107, 108 S. Ct. 904, 99 L. Ed. 2d 90 (1988)).

Analysis

The court found that the BIA did not abuse its discretion in denying Zeng's motion to reopen because the evidence he submitted was not new; it could have been presented at the original hearing. The BIA's conclusion that Zeng's claim of ineffective assistance of counsel did not meet the Lozada requirements was also upheld, as Zeng failed to provide the necessary documentation.

The court found that the BIA did not abuse its discretion in denying Zeng's motion to reopen because the evidence he submitted was not new; it could have been presented at the original hearing.

Conclusion

The court affirmed the BIA's decisions, concluding that Zeng's evidence did not compel a reasonable factfinder to find in his favor.

Who won?

Gonzales, as the BIA's decisions were upheld, affirming the order of removal.

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