14-802

Zheng v. Lynch

BIA

Segal, IJ

A098 852 519

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 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 23rd day of October, two thousand fifteen.

PRESENT:

JON O. NEWMAN,

ROSEMARY S. POOLER,

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

GUANGZU ZHENG, AKA GUANG ZHENG, AKA 

GUANG ZU ZHENG, AKA GUANG Z. ZHENG,

Petitioner,

v. 14-802

NAC

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

 

FOR PETITIONER: Ming Hai, Flushing, NY.

FOR RESPONDENT: Joyce R. Branda, Acting Assistant

Attorney General, Civil Division;

Blair T. O’Connor, Assistant

Director; Eric W. Marsteller, Senior
Litigation Counsel, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Guangzu Zheng, a native and citizen of the People’s

Republic of China, seeks review of a February 27, 2014,

decision of the BIA affirming the October 23, 2013, decision

of an Immigration Judge (“IJ”) ordering his removal and

denying his application for withholding of removal and

relief under the Convention Against Torture (“CAT”). In re

Guangzu Zheng, No. A098 852 519 (B.I.A. Feb. 27, 2014),

aff’g No. A098 852 519 (Immig. Ct. N.Y. City Oct. 23, 2013). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA’s decision, that

is, minus the IJ’s alternative bases for denying relief that

the BIA did not consider. Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 522 (2d Cir. 2005); see Lin Zhong v.

U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)

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(explaining that the Court “may consider only those issues

that formed the basis for [the BIA’s] decision.”). The

applicable standards of review are well established. See 8

U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

F.3d 510, 513 (2d Cir. 2009).

I. Removability

Under 8 U.S.C. § 1252(a)(2)(C) and (D), our

jurisdiction is limited to constitutional claims and

questions of law because Zheng is removable for having been

convicted of a controlled substance offense. Zheng conceded

removability on this ground both before the IJ and on appeal

to the BIA, and is bound by these concessions. See Hoodho

v. Holder, 558 F.3d 184, 192-93 (2d Cir. 2009). Further,

his argument, that immigration authorities prevented him

from complying with a condition of his guilty plea that

would have prevented a felony conviction, takes issue with

the validity of his conviction, not with whether it is a

removable offense. A collateral attack on a conviction is

not available in a removal proceeding. See Lanferman v.

BIA, 576 F.3d 84, 88 (2d Cir. 2009) (per curiam).

Zheng does not challenge the agency’s conclusion that

his assault conviction is a crime involving moral turpitude

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that renders him removable. Yueqing Zhang v. Gonzales, 426

F.3d 540, 541 n.1 (2d Cir. 2005) (declining to review issues

not raised in brief). 

II. Eligibility for Relief from Removal

The agency denied withholding of removal, under both

the Immigration and Nationality Act (“INA”) and the CAT, on

the ground that Zheng’s assault conviction was a

particularly serious crime rendering him ineligible for

those forms of relief. Zheng contends that the agency made

a factual error when it found that he used a weapon to

commit the assault.

Withholding of removal, under both the INA and the CAT,

is unavailable to an alien who has been convicted of a

particularly serious crime. 8 U.S.C. § 1231(b)(3)(B)(ii); 8

C.F.R. § 1208.16(d)(2). When considering a felony

conviction for which the term of imprisonment is less than

five years, the IJ must make an individualized inquiry as to

whether the conviction rose to the level of a “particularly

serious crime.” 8 U.S.C. § 1231(b)(3)(B)(iv). The

following factors are considered: “the nature of the

conviction, the circumstances and underlying facts of the

conviction, the type of sentence imposed, and, most

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importantly, whether the type and circumstances of the crime

indicate that the alien will be a danger to the community.” 

In re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982); see

also Nethagani v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008)

(applying these factors). We retain jurisdiction to review

whether the agency considered these factors, but the

weighing of the factors is discretionary. See Nethagani,

532 F.3d at 154-55 (holding that statute restricting review

of discretionary decisions does not apply to determination

that crime is particularly serious, but describing the

factor analysis as discretionary). Our role is not to

“reweigh the equities or reassess the facts but to make sure

that the conclusions derived from those weighings and

assessments are judicially sound and supported by the

record.” Novick v. AXA Network, LLC, 642 F.3d 304, 311 (2d

Cir. 2011) (internal citation and quotation marks omitted). 

The record reflects that the IJ listed the factors, and

weighed them in light of Zheng’s testimony, presentencing

report, and certificate of disposition. The IJ addressed

each factor, considering: (1) the nature of assault in the

third degree, which involves intentionally causing physical

injury to another person; (2) the circumstances of the

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crime, including that Zheng acted with others, some of whom

used a weapon (a metal baton), to beat the victim, who was

hospitalized; (3) the sentence imposed, which was probation;

and (4) his dangerousness to the community, which was

evident because he attacked the victim violently on two

consecutive days. As the IJ considered each factor, we find

no error in the determination that the assault was a

particularly serious crime. Moreover, Zheng’s allegation of

factual error is belied by the record. Neither the IJ nor

the BIA found that Zheng personally wielded a weapon. In

summarizing Zheng’s testimony, the IJ stated that “[t]he co

defendants used a metal baton to hit the victim,” and the

BIA stated that “the respondent, acting in concert with two

other attackers, struck the victim with a metal baton.,”

meaning that Zheng was responsible for what another

attacked, with whom he acted in concert, did. 

Zheng has not raised any challenge in this Court to the

agency’s denial of deferral under the CAT. Accordingly, any

error in that determination has been forfeited. See Yueqing

Zhang, 426 F.3d at 541 n. 1. 

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For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, Zheng’s pending

motion for a stay of removal is DISMISSED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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