Summary
The Second Circuit held that the BIA erred in denying asylum and withholding of removal based solely on a failure to establish identity and nationality, where the petitioner’s nationality was undisputed and withholding of removal does not require a nationality determination. The court also found the BIA provided insufficient explanation for denying CAT relief. The court denied the petition regarding the BIA’s denial of a motion to remand based on ineffective assistance of counsel, as the petitioner failed to demonstrate prejudice. Key topics: asylum, withholding of removal, CAT relief, nationality determination, identity, ineffective assistance of counsel, motion to remand.
Topics
Practice areas
Questions Presented
- Whether the BIA erred in affirming denial of asylum and withholding of removal based on petitioner's failure to establish identity and nationality when his nationality was undisputed and the agency failed to make a conclusive determination
- Whether the BIA abused its discretion in denying the motion to remand based on ineffective assistance of counsel where petitioner failed to establish prejudice
Holdings
- The BIA erred because Zheng's nationality was undisputed, and the agency failed to make a conclusive determination on nationality. For withholding of removal, no nationality determination is required.
- The BIA did not err because Zheng failed to establish prejudice from his attorneys' actions.
Key quotations
“We find that the BIA erred in affirming denial of Zheng's applications for asylum and withholding of removal based on his purported failure to establish identity and nationality.” (at 3)
“Withholding of removal requires no nationality determination.” (at 4)
“The BIA did not err in denying Zheng's motion to remand based on ineffective assistance of counsel because he failed to establish prejudice stemming from the actions of either of his attorneys.” (at 5)
“Zheng's affidavit, however, did not allege past persecution on account of his sexual orientation or that he feared future harm rising to the level of persecution.” (at 5)
Factual background
Mei Bin Zheng, a native and citizen of China, conceded removability. The Immigration Judge found his testimony credible but insufficient to carry his burden of proof. The BIA affirmed the denial of asylum, withholding of removal, and CAT relief based solely on Zheng's failure to establish his identity and nationality. The BIA also denied his motion to remand based on alleged ineffective assistance of counsel, claiming that his first attorney's colleagues committed immigration fraud and that his second attorney failed to inquire about his sexual orientation.
Procedural history
Zheng, a native and citizen of China, was ordered removable. The IJ denied his applications for asylum, withholding, and CAT relief, and the BIA affirmed. The BIA also denied his motion to remand. Zheng petitioned for review to the Second Circuit.
Remand instructions
The BIA's decision is vacated in relevant part and the case is remanded for further proceedings consistent with this order, including consideration of the merits of asylum, withholding of removal, and CAT relief, and further explanation of the CAT denial.