20-733

Zheng v. Garland

BIA

Hom, IJ

A208 613 172

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 12th day of October, two thousand twentytwo.

PRESENT:

JON O. NEWMAN,

JOSÉ A. CABRANES,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

XUE KUI ZHENG,

Petitioner,

v. 20-733

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Richard Tarzia, Esq., Belle Mead, 

NJ.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

Assistant Attorney General; John 
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S. Hogan, Assistant Director; 

Matthew A. Spurlock, Trial 

Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

DC.

UPON DUE CONSIDERATION of this petition for review of a 

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for 

review is DENIED.

Petitioner Xue Kui Zheng, a citizen of the People’s 

Republic of China, seeks review of a February 12, 2020, 

decision of the BIA, which affirmed a June 28, 2018, decision 

of an Immigration Judge (“IJ”), denying asylum, withholding 

of removal, and relief under the Convention Against Torture 

(“CAT”). In re Xue Kui Zheng, No. A208 613 172 (B.I.A. Feb. 

12, 2020), aff’g No. A208 613 172 (Immig. Ct. N.Y. City June

28, 2018). We assume the parties’ familiarity with the 

underlying facts and procedural history.

We have reviewed the IJ’s decision as supplemented by 

the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

2005). “We review factual findings under the deferential 

substantial evidence standard, treating them as ‘conclusive 

unless any reasonable adjudicator would be compelled to 
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conclude to the contrary.” Lecaj v. Holder, 616 F.3d 111, 114 

(2d Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(B)). “Legal 

questions, including mixed questions of law and fact and the 

application of law to fact, are reviewed de novo.” Id.

(quoting Manzur v. DHS, 494 F.3d 281, 289 (2d Cir. 2007)).

I. Pereira Claim

In Pereira v. Sessions, the Supreme Court held that the 

Immigration and Nationality Act unambiguously requires a 

notice to appear to include a hearing time and place to 

trigger the “stop-time rule,” 138 S. Ct. 2105, 2113–20

(2018), which cuts off an alien’s accrual of physical presence 

for the purpose of qualifying for cancellation of removal, 

see 8 U.S.C. § 1229b(b), (d)(1). Zheng did not apply for 

cancellation but argues that, pursuant to Pereira, a notice 

to appear that omits the hearing information is inadequate to 

vest jurisdiction over the removal proceedings with the 

immigration court. We have rejected this argument, holding 

that Pereira addresses a narrow question regarding the stoptime rule and that a notice to appear “that omits information 

regarding the time and date of the initial removal hearing is 

nevertheless adequate to vest jurisdiction in the Immigration 
4

Court, at least so long as a notice of hearing specifying 

this information is later sent to the alien.” Banegas Gomez 

v. Barr, 922 F.3d 101, 112 (2d Cir. 2019); see also Chery v. 

Garland, 16 F.4th 980, 987 (2d Cir. 2021) (“Banegas Gomez

remains good law even after the Supreme Court’s opinion in 

Niz-Chavez [v. Garland, 141 S. Ct. 1474 (2021)].”). Although 

Zheng’s notice to appear did not specify a date or time for 

his initial hearing, he subsequently received proper notice 

of his hearings at which he appeared. Therefore, Zheng’s 

argument is foreclosed by Banegas Gomez, 922 F.3d at 110–12.

II. Timeliness of Zheng’s Asylum Application

Zheng asserts that he submitted his Form I-589 as an 

attachment to an earlier change-of-venue motion, which was 

submitted to an immigration court within a year of his 

arrival. Petitioner’s Br. 2. According to Zheng, the agency 

erred in ruling that he failed timely to file his application 

because (1) “the Immigration Court in Imperial, California 

did, in fact, stamp the Petitioner’s motion containing his 

asylum application on March 1, 2016,” and (2) “the text of 

[his motion to change venue] did, in fact, state that his 
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asylum application was attached to the motion to change 

venue.” Id.

Our jurisdiction to review findings regarding the 

timeliness of an asylum application is limited to 

“constitutional claims or questions of law” and does not 

extend to questions of fact. 8 U.S.C. § 1252(a)(2)(D); see 

also id. § 1158(a)(3). If a petition “raises a 

‘constitutional claim’ or ‘question of law,’” the court 

“could exercise jurisdiction to review those particular 

issues.” Xiao Ji Chen v. DOJ, 471 F.3d 315, 329 (2d Cir. 

2006). We lack jurisdiction to review arguments that “amount 

to essentially a quarrel about the IJ’s fact-finding with 

respect to the one-year deadline determination.” Gui Yin Liu 

v. INS, 508 F.3d 716, 721 (2d Cir. 2007) (internal quotation 

marks and alteration omitted).

Under 8 U.S.C. § 1158(a)(2)(B), an alien must demonstrate 

“by clear and convincing evidence” that he or she filed an 

application for asylum (a Form I-589) within one year of 

arrival in the United States. See also 8 C.F.R. § 208.4(a)(2). 

In this case, the IJ ruled that Zheng “failed to satisfy his 

burden with clear and convincing evidence that he filed his 
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asylum request within one year from the date of his arrival 

in the US.” Cert. Admin. R. 101. In making that ruling, the 

IJ noted that “the Change of Venue never indicated that the 

Form I-589 was being filed to preserve the one year filing 

requirement in the body of the text and there is no filing 

date stamp affixed to the Form 1-589 that respondent claims 

was attached to the Motion to Change Venue.” Id. at 100. 

The IJ’s determination that Zheng did not comply with 

the one-year filing requirement was a legal determination. 

The IJ decided as a legal matter that an application attached 

to a change-of-venue motion is not “filed” absent the filer 

stating that it was attached for the purpose of satisfying a 

time limitation and absent a separate date-stamp on the 

application rather than the motion itself. Imposing such 

requirements is inconsistent with the applicable regulation, 

which provides that an asylum application is deemed filed “on 

the date it is received by the Immigration Court.” 8 C.F.R. 

§ 208.4(a)(2)(ii). We therefore conclude that the application 

was timely filed and proceed to the merits.
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III. Asylum

Although the IJ ruled that the asylum claim was untimely,

in considering the removal claim, he discussed whether past 

persecution had occurred. CAR 101. Zheng’s claim that he is 

entitled to asylum rests on his allegation of past 

persecution. He alleges that in 2015, after attending a 

religious meeting, he was detained and beaten. Before the IJ, 

Zheng testified that “they hit me with fists in my abdomen 

and kicked me on my thigh, my leg.” CAR 26. He also testified 

that “I felt pain in my abdomen, and I got bruises on my leg.” 

Id.

However, he failed to produce evidence from the clinic 

where he alleged he was treated. He testified that he “didn’t 

think of doing that.” CAR 55.

“Persecution is an extreme concept that does not include 

every sort of treatment that society regards as offensive.” 

Mei Fun Wong v. Holder, 632 F. 3d 64, 72 (2011) (internal 

quotation marks omitted). 

The IJ did not err in concluding that Zheng had not 

satisfied his burden of proving past persecution, especially 

in the absence of corroboration.
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IV. Withholding of Removal

Zheng challenges the agency’s determination that he 

failed to establish entitlement to withholding of removal. 

See 8 U.S.C. § 1231(b)(3). “Withholding of removal is 

available if an applicant shows by a clear probability that 

he will suffer persecution in his country of removal because 

of his race, religion, nationality, membership in a given 

social group, or political opinion.” Singh v. BIA, 435 F.3d 

216, 218 (2d Cir. 2006). 

The IJ reasonably determined that Zheng did not “present 

sufficient evidence to show that he has a ... well-founded 

fear of future persecution” and that he “did not meet his 

burden of presenting sufficient evidence to establish that he 

suffered past persecution.” Cert. Admin. R. 102, 104. Having 

failed to show entitlement to asylum, Zheng necessarily 

failed to meet the higher burden to show entitlement to 

suspension of removal. 

We have considered Zheng’s remaining arguments, which we 

conclude are without merit. The petition for review is DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court