Bi Chang Zhen v. Gonzales

concurring.

I reluctantly concur in the decision to deny the petition. Evidence in the record strongly supports the petitioner’s asylum claim based on fear of forced sterilization. Zhen Bi Chang, the petitioner, is the mother of two children, exceeding the number of children allowed under China’s one-child policy. As a pro se petitioner Zhen was unaware of this statutory ground for relief when she appeared before the Immigration Judge (IJ). Later counsel did not raise this claim to the Board of Immigration Appeals (BIA); indeed he did not file a brief with the BIA. As a result, although Zhen likely qualifies for at least one and possibly two forms of relief, Zhen faces deportation to a country where she is likely to be sterilized against her will.

During the course of Zhen’s time in the United States’ immigration system she employed several, less than capable members of the immigration bar. Zhen retained an attorney for her IJ hearing but the attorney left town and disconnected his phone. He did not represent her at the hearing. She proceeded pro se. For Zhen’s appeal before the BIA, she hired another attorney. This attorney took $600 but never filed an appeal brief.…

MEMORANDUM **

Bi Chang Zhen, a native and citizen of the People’s Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 . We review the BIA’s denial of a motion to reopen for abuse of discretion, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny the petition.

The BIA did not abuse its discretion in denying Zhen’s motion to reopen to allow her to apply for asylum on the new ground that she fears China’s one-child policy. Zhen conceded that she did not support her motion with any new evidence, see 8 C.F.R. § 1003.2 (c)(1), and we are not persuaded that the IJ should have exercised more care in explaining that Zhen may have been eligible for asylum based on China’s population control policies. The IJ repeatedly asked Zhen for all the reasons she feared returning to China, and neither Zhen nor her husband, who testified on her behalf, mentioned China’s coercive population control policies. Absent any indication whatsoever that Zhen feared returning to China on this ground, the IJ could not be expected to inform Zhen sua sponte of this alternate basis of relief…