Bi Chang Zhen v. Gonzales

137 F. App'x 106

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 28, 2005
• Docket: No. 03-72475
• Status: Published

Opinions

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 simply because Zhen was a Chinese national with two children. Based on the information Zhen communicated to the IJ, in both her testimony and her application, the IJ fully explained the different forms of relief available to Zhen — asylum, withholding of removal and voluntary departure — -as required by 8 C.F.R. § 1003.2(c)(1).

In addition, we are not persuaded that the BIA should have reopened Zhen’s case to allow her to present a “decent appeal brief’ in support of her appeal of the denial of her original asylum claim. Zhen’s unsubstantiated references in her motion to reopen to an “unscrupulous and illegal ‘immigration consultant’ ” were not sufficient to support a claim of ineffective assistance of counsel. See Reyes v. Ashcroft, 358 F.3d 592, 596-97 (9th Cir.2004).

Our denial of relief in this petition is without prejudice to any other remedies available to Zhen.

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.