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Zheng v. Gonzales

September 8, 2005

ZHENG ZHENG, PETITIONER
v.
ALBERTO GONZALES,*FN1 ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review of an Order of the Board of Immigration Appeals (Board No. A72-500-941).

The opinion of the court was delivered by: Becker, Circuit Judge.

PRECEDENTIAL

Argued: February 7, 2005

Before: BARRY, FUENTES, and BECKER, Circuit Judges.

OPINION OF THE COURT

Table of Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. Facts and Procedural History ........................ 4 A.

Background Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Zheng's Adjustment Application ................ 5

C. Removal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 6

D. Appellate Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 7

III. The Motion To Reopen Asylum Proceedings ........... 8 A.

The Lozada Requirements . . . . . . . . . . . . . . . . . . . . . 9

B. Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. Adjustment of Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. The Statutory and Regulatory Framework ........ 12

1. Statutory Authority To Adjust Status ...... 13

2. The Eligibility Regulation ............... 14

B. The "Arriving Alien" Category ................ 15

V. The Validity of the Regulation ...................... 18

A. The Chevron Analysis . . . . . . . . . . . . . . . . . . . . . . . 19

B. Discretion and the Chevron Analysis . . . . . . . . . . . . 20

C. ChevronStep One: Eligibility and Discretion ..... 22

D. Chevron Step Two: Congressional Meaning Versus

Regulatory Restrictions ................... 26

1. Parole and Removal Proceedings ......... 26

2. Arriving Aliens and Adjustment of Status... 28

3. Is the Regulation a Permissible Interpretation of the Statute? . . . . . . . . . . . . . . . . . . . . . . . 30

VI. Application to Zheng . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

A. Zheng's Parole Status and the Effect of the Notice to Appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

B. Zheng's Adjustment Applications .............. 34

C. Who Has Jurisdiction Over Zheng's Application? . 35

VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

I. Introduction

Zheng Zheng petitions this Court to review a decision by the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings. Zheng raises two claims. First, he argues that the BIA should have granted his motion to reopen because of ineffective assistance of counsel. Zheng argues that his previous attorney was ineffective because he failed to file an appellate brief with the BIA after an Immigration Judge (IJ) denied his application for asylum. Because we find that the prejudice requirement of the ineffective assistance claim has not been met, we reject Zheng's argument on this point.

Second, Zheng argues that the BIA should have granted his request to remand his case so that an IJ might consider his petitions for adjustment of status. Zheng presses two applications to adjust status. First, he has an employment-based application. Second, he alleges that he is covered by the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (CSPA), which allows certain Chinese nationals to adjust their status to that of lawful permanent residents. The government responds that Zheng is an "arriving alien" and, as such, forbidden by regulation from adjusting his status under 8 C.F.R. § 1245.1(c)(8). Zheng and the amicus curiae argue that this regulation is inconsistent with the governing statute, and therefore invalid, relying on the First Circuit's recent decision in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005).

While our reasoning differs somewhat from that of the First Circuit, we agree with that court's conclusion that 8 C.F.R. § 1245.1(c)(8) is not a valid exercise of the Attorney General's authority under the Immigration and Nationality Act (INA). We concur with the government that the statute grants the Attorney General broad discretion to issue regulations, and that this discretion may include some power to regulate eligibility to adjust status. But the Attorney General's power is not unlimited, and must be exercised consistently with the intent of the statute. Because the statute allows paroled aliens to apply for adjustment of status, whereas the regulation forecloses this statutory eligibility, the regulation is not based on a permissible statutory reading. We will therefore grant the petition for review and remand to allow the immigration authorities to consider Zheng's applications for adjustment of status.

II. Facts and Procedural History

A. Background Facts

Zheng Zheng was born on May 25, 1960, in Fuzhou, People's Republic of China. He claims that in 1989, when he was a middle school teacher in Fuzhou, he was involved in student uprisings. He apparently disseminated information from the BBC and Voice of America to the teachers and students of his school, passed out pamphlets, and organized rallies. The Chinese government cracked down on the student demonstrators in June 1989. As part of this crackdown, government authorities came looking for Zheng. He hid from security officers for a time, staying with friends and relatives, and eventually left China through Hong Kong and came to the United States. Zheng apparently arrived in California at some point in or after 1990, and entered the country without inspection by immigration officials.

Zheng eventually moved to Woodlyn, Pennsylvania, where he lived until 1993, when he returned to China briefly to visit his sick father. Before leaving for China, Zheng obtained a permission to re-enter (or "advance parole"), dated July 28, 1993, which allowed him to return to the United States under the status that he had when he left. Although Zheng was an uninspected illegal alien, he was not deportable at that time because then-President Bush had instituted a Deferred Enforced Departure (DED) program for certain Chinese nationals in the wake of the Tiananmen Square massacre. See Exec. Order No. 12,711, 55 Fed. Reg. 13897 (Apr. 11, 1990). Zheng was eligible for DED, so his permission to reenter was issued. This allowed him to travel to China and return to the United States without being detained at the border as an illegal alien. He did in fact re-enter the United States on September 27, 1993, using his advance parole authorization.*fn2

B. Zheng's Adjustment Application

On October 20, 1993, Zheng filed an application to adjust status with the Immigration and Naturalization Service (INS).*fn3 In this application, he claimed that he was entitled to lawful permanent residence status under the Chinese Student Protection Act, because he had arrived in the United States before April 11, 1990, and met the other requirements of the CSPA. He submitted a sworn statement saying that he entered California on February 1, 1990, as well as various materials that tended to show that he was in New York prior to that date. The INS ultimately ruled on the application on May 5, 1999-almost six years after it was filed-finding that Zheng had failed to "present authentic and convincing evidence" to show that he had entered the United States prior to April 1990. It noted that many of the materials Zheng had submitted were proven to be fraudulent, and Zheng admitted as much, saying that he bought one of the documents on the street in Chinatown. The INS therefore denied Zheng's application to adjust his status.

C. Removal Proceedings

That decision left Zheng as an unadmitted illegal alien. On October 29, 1999, the INS began removal proceedings by serving on Zheng a Notice to Appear alleging that he was an "alien present in the United States without being admitted or paroled" under 8 U.S.C. § 1182(a)(6)(A)(i). On January 7, 2000, the INS amended the Notice to Appear, withdrawing the § 1182(a)(6)(A)(i) charge and adding a charge under § 1182(a)(7)(A)(i)(I), which allows deportation of an alien who "is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by [the INA]." The new Notice to Appear also revised the factual allegations against Zheng, alleging that he was, "on September 27, 1993, paroled into the United States pursuant to Executive Order 12711," and that he was removable under the § 1182(a)(7)(A)(i)(I) standard.

Zheng retained an attorney, Sigang Li, who filed an asylum application on his behalf on August 7, 2000. A merits hearing was conducted before an Immigration Judge in Philadelphia on September 17, 2001. Zheng testified during a brief direct examination in which he contradicted his asylum application in several important respects. Most notably, he stated that he was depressed because he had just learned that his father had died on August 27, 2001-but his August 2000 asylum application listed his father as deceased. He also told a story about his interactions with the Chinese security agencies that differed in several particulars from the account in his application. In a lengthy cross-examination, counsel for the INS pointed out these inconsistencies.

At the end of the September 17, 2001, hearing, the IJ issued an oral decision. Before reaching Zheng's asylum claims, he considered his CSPA application to adjust status, which had been submitted as an exhibit. He noted that Zheng "initially had indicated an intent to renew that application before this Court," but determined that Zheng, as a parolee, was an "arriving alien" under 8 C.F.R. § 1245.1(c)(8). The IJ thus decided that Zheng was ineligible for adjustment of status.

The IJ then turned to Zheng's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Based on inconsistencies between Zheng's testimony and his application, the IJ made an adverse credibility finding.He thus denied asylum, withholding, and CAT relief. As for the asylum claim, he also found that Zheng should be barred from asylum because he filed his claim too late, see generally 8 C.F.R. § 208.4(a), although he noted that he would not have exercised his discretion adversely if Zheng had been credible and eligible for asylum.

D. Appellate Proceedings

Zheng then engaged attorney Sigang Li to file an appeal before the BIA. Li filed a Notice of Appeal with the BIA, and checked the box indicating that he would file a brief. He never filed a brief, and now claims that this was because he did not receive a briefing schedule from the BIA. Without a brief from the petitioner, the INS also did not file a brief, and the BIA dismissed the appeal in a short per curiam order dated August 20, 2002. The dismissal was predicated mainly on Zheng's counsel's failure to file a brief, which can support a summary dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(E) (formerly § 3.1(d)(2)(i)(D)). The BIA also considered the merits, however, noting that "upon review of the record, we are not persuaded that the Immigration Judge's ultimate resolution of this case was in error." Zheng never petitioned this Court to review the BIA's August 2002 decision.

Zheng retained new counsel, who filed a timely motion to reopen with the BIA on November 18, 2002, alleging ineffective assistance of counsel. The motion argued that Li's failure to file a brief constituted ineffective assistance and thus warranted reopening. It further argued that Zheng was entitled to review of his application for adjustment of status. The motion to reopen also pressed Zheng's application to adjust status pursuant to the ...


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