18-103
Zheng v. Barr

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 2nd day of October, two thousand twenty.

Present:
                  GUIDO CALABRESI,
                  ROBERT A. KATZMANN,
                  SUSAN L. CARNEY,
                       Circuit Judges.


MEI BIN ZHENG,

                  Petitioner,

                  v.                                                    No. 18-103

WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,

                  Respondent.


For Petitioner:                           Rebecca A. McCarthy, Esq., Ezequiel Hernandez
                                          PLLC, Queens, NY.

For Respondent:                           Joseph H. Hunt, Assistant Attorney General; Kristin
                                          Moresi, Trial Attorney, Office of Immigration
                                          Litigation, United States Department of Justice,
                                          Washington, D.C.
        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review is GRANTED in part and DENIED in part.

        Petitioner Mei Bin Zheng, a native and citizen of the People’s Republic of China, seeks

review of a December 15, 2017 decision of the Board of Immigration Appeals (“BIA”), in which

the BIA affirmed a March 28, 2017 decision of an Immigration Judge (“IJ”) denying Zheng

asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See

In re Mei Bin Zheng, No. A205 304 862 (B.I.A. Dec. 15, 2017), aff’g No. A205 304 862 (Immig.

Ct. N.Y. City Mar. 28, 2017). The BIA also denied Zheng’s motion to remand based on

ineffective assistance of counsel. We assume the parties’ familiarity with the underlying facts,

procedural history of the case, and issues on appeal.

   I.       Asylum, Withholding, and CAT Relief

        The BIA affirmed the IJ’s denial of asylum and withholding of removal based solely on

the IJ’s determination that Zheng had failed to establish his identity, and by extension, his

nationality. Although the IJ’s decision rested on additional grounds, because the BIA did not

address them, “[w]e review the IJ’s decision as modified by the BIA, i.e., minus the arguments

for denying relief” that the BIA rejected or did not address. Urgen v. Holder, 

, 272

(2d Cir. 2014) (per curiam); see Xue Hong Yang v. U.S. Dep’t of Justice, 

, 522 (2d

Cir. 2005). “The substantial evidence standard of review applies, and we uphold the IJ’s factual

findings if they are supported by reasonable, substantial, and probative evidence in the record.

By contrast, we review de novo questions of law and the BIA’s application of law to undisputed

fact.” Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009). 1

        An applicant may be granted asylum only if he is a “refugee.” 8 U.S.C. § 1158(b)(1)(A).


       Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations,
        1

emphases, footnotes, and citations are omitted.


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An applicant for asylum bears the burden of proof in establishing his status as a refugee. See

is defined with respect to the relationship the applicant has to his

country of nationality or last habitual residence:

       [A]ny person who is outside any country of such person’s nationality or, in the
       case of a person having no nationality, is outside any country in which such
       person last habitually resided, and who is unable or unwilling to return to, and is
       unable or unwilling to avail himself or herself of the protection of, that country
       because of persecution or a well-founded fear of persecution on account of race,
       religion, nationality, membership in a particular social group, or political
       opinion[.]

8 U.S.C. § 1101(a)(42)(A). Therefore, “a petitioner’s nationality, or lack of nationality, is a

threshold question in determining his eligibility for asylum.” Wangchuck v. Dep’t of Homeland

Sec., 

, 528 (2d Cir. 2006). An “agency’s finding that [a petitioner] failed to establish

his nationality d[oes] not obviate the need to resolve conclusively [the petitioner’s] country of

nationality and citizenship.” Urgen v. Holder, 

, 273 (2d Cir. 2014) (emphasizing

that “[a] finding with respect to the asylum applicant’s nationality is . . . necessary because

without it as a reference, the agency cannot analyze an applicant’s claim of well-founded

persecution”).

       While the BIA stated that Zheng failed to establish this threshold issue, barring him from

asylum and withholding of removal, Zheng’s nationality was undisputed. The Notice to Appear

charged him as removable as a native and citizen of China, and Zheng conceded that allegation

among others in the Notice to Appear. The IJ relied on those allegations, and Zheng’s

corresponding admissions, in finding him removable. Indeed, both the BIA and the IJ adopted

those admitted allegations as a fact. See Admin. Record 4 (the BIA, referring to Zheng as a

“native and citizen of China”);

(the IJ, referring to Zheng as a “native and citizen of the

People’s Republic of China”).

       In nevertheless finding that Zheng had failed to establish his identity and nationality, the


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BIA relied in part on its precedential decision in In re O-D-, 21 I. & N. Dec. 1079 (BIA 1998).

However, in that case, the government disputed the authenticity of the applicant’s identification

documents and the IJ made an adverse credibility determination against the applicant, finding

that the applicant’s submission of fraudulent identification documents called the veracity of his

testimony and other evidence into doubt. See

That is not the situation here.

The IJ specifically found Zheng’s testimony credible, just not sufficiently persuasive to carry

Zheng’s entire burden of proof. Zheng’s supposed failure to establish his identity was relevant

only insofar as it went to his nationality, and, as discussed above, Zheng’s nationality was

undisputed. Moreover, had Zheng failed to establish his nationality, the agency would still be

required to make a determination as to his nationality or lack thereof. See 

. Even if he had no nationality, Zheng could establish eligibility for asylum from China as his

last country of habitual residence prior to entering the United States. See 

.

       The BIA also erred in finding Zheng’s alleged failure to establish nationality dispositive

as to his claim for withholding of removal. While an alien is only eligible for asylum as to the

country of nationality, withholding of removal requires no nationality determination. Instead, the

relevant statutory provision mandates broadly that “the Attorney General may not remove an

alien to a country if the Attorney General decides that the alien’s life or freedom would be

threatened in that country because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A) (emphasis added). Given

that an alien may be removed to additional countries beyond his country of nationality – for

instance, his country of birth, a country where he has a residence, or any country that will accept

him – withholding is therefore available as to the country of removal regardless of nationality.

See 8 U.S.C. § 1231(b)(1)(C). Here, because Zheng was ordered removed to China, the agency


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was required to consider the merits of his withholding claim as to that country regardless of

whether Zheng had established Chinese nationality.

          In conclusion, we find that the BIA erred in affirming denial of Zheng’s applications for

asylum and withholding of removal based on his purported failure to establish identity and

nationality. We therefore remand to the BIA for further proceedings on each claim. Finally,

while the BIA separately stated that Zheng failed to establish a CAT claim, it provided no

explanation for that ruling; meanwhile, the IJ had denied CAT relief on the same grounds as

asylum and withholding of removal. Accordingly, we also remand for further explanation of the

denial of CAT relief. See Poradisova v. Gonzales, 

, 77 (2d Cir. 2005) (“Despite our

generally deferential review of IJ and BIA opinions, we require a certain minimum level of

analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial

review is to be meaningful.”).

    II.      Motion to Remand & Ineffective Assistance of Counsel

          Zheng also petitions for review of the BIA’s denial of his motion to remand based on

alleged ineffective assistance of counsel. We review the BIA’s denial of a motion to remand for

abuse of discretion. See Li Yong Cao v. U.S. Dep’t of Justice, 

, 157 (2d Cir. 2005).

To obtain remand based on ineffective assistance of counsel, a movant must establish that

“counsel’s performance was so ineffective as to have impinged upon the fundamental fairness of

the hearing.” Jian Yun Zheng v. U.S. Dep’t of Justice, 

, 46 (2d Cir. 2005). This

includes a showing that competent counsel would have acted otherwise and that that the

petitioner was prejudiced by his counsel’s performance. See Rashid v. Mukasey, 

,

131 (2d Cir. 2008). The BIA did not err in denying Zheng’s motion to remand based on

ineffective assistance of counsel because he failed to establish prejudice stemming from the

actions of either of his attorneys.


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       Zheng claims that his first attorney at Moslemi & Associates was ineffective because the

attorney’s colleagues perpetrated immigration fraud. Zheng offers no evidence, however, that his

specific attorney committed fraud or that there was any fraud in his case. Zheng also contends

that his second attorney Michael Kamen failed to inquire about his sexual identity, and that his

sexual orientation would have provided him another basis for asylum. Zheng’s affidavit,

however, did not allege past persecution on account of his sexual orientation or that he feared

future harm rising to the level of persecution. Zheng also argued that his second attorney failed

to draw attention to his 2007 household register as evidence of identity before the IJ, but the IJ

explicitly considered that document.

       For the foregoing reasons, the petition for review is GRANTED as Zheng’s claims for

asylum, withholding of removal, and CAT relief, and DENIED as to Zheng’s motion to remand

on ineffective assistance of counsel. The BIA’s decision is VACATED in relevant part and the

case is REMANDED for further proceedings consistent with this order.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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