Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 05-2460

HAI NING ZHANG,

Petitioner,

v.

ALBERTO R. GONZÁLES, ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge, Torruella and Lipez, Circuit Judges.

Jeffrey C. Bloom, with whom Jeffrey C. Bloom, P.C., on brief for petitioner. Manuel A. Palau, Trial Attorney, Civil Division, U.S. Department of Justice, Peter D. Keisler, Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, on brief for respondent.

September 1, 2006 TORRUELLA, Circuit Judge. Petitioner Hai Ning Zhang

("Zhang") petitions us to review the Board of Immigration Appeals'

("BIA") denial of a motion to reopen his removal proceedings.

After careful consideration, we affirm.

I. Background

A. Procedural Overview

Zhang, a native and citizen of China, lawfully entered

the United States in Los Angeles, California, on March 19, 2001.

Zhang had a B-1 visa valid until May 19, 2001, which he overstayed.

On April 3, 2002, Zhang filed an I-589 application seeking asylum,

withholding of removal, and protection under the Convention Against

Torture ("CAT"). On January 9, 2003, the Immigration and

Naturalization Service ("INS")1 served Zhang with a Notice to

Appear, charging that he was removable under § 237(a)(1)(B) of the

Immigration and Nationality Act ("INA"),

(a)(1)(B),

as an alien admitted as a nonimmigrant who remained in the United

States for a time longer than permitted. On March 25, 2003, Zhang

conceded removability.

Zhang appeared before an Immigration Judge ("IJ") on

August 8, 2003. On August 22, the IJ pretermitted Zhang's asylum

application and denied his request for withholding of removal and

1 In March 2003, the relevant functions of the INS were transferred into the new Department of Homeland Security and reorganized into the Bureau of Immigration and Customs Enforcement. For simplicity, we refer to the agency throughout this opinion as the INS.

-2- relief under CAT. The IJ also granted Zhang voluntary departure.

Zhang timely appealed to the BIA, which summarily affirmed the IJ's

decision on December 17, 2004. Zhang did not appeal this decision

but instead filed a motion to reopen and reconsider and a motion to

stay deportation with the BIA, on July 26, 2005. The BIA denied

these motions as untimely on September 2, 2005. Zhang has timely

appealed.

B. Factual Background

The following facts are taken from Zhang's testimony

before the IJ and from documents he presented in support of his

asylum application.

Zhang, married with no children, left China for the

United States in March 2001. He is a practitioner of Falun Gong2

and claims that he suffered harsh treatment by the Chinese

government as a result. Before he left China, Zhang had worked as

a deputy manager in the sales department of a computer hardware

company ("the Company") since 1995 and earned the equivalent of

approximately $31,000 annually. The Company was owned jointly by

the Chinese government (60%) and by an individual named Huan Chao

He ("He"), whom Zhang described as a mentor, father figure, and

2 Zhang described Falun Gong as a faith whose "characteristic is to purify your soul. To foster your ethics, your morals . . . to seek the truth." He did not describe in great detail what this entails, aside from references to practicing in a park and purchasing instructional books and tapes. By the time he left China, he testified, he had become an "intermediate level" practitioner.

-3- best friend. Zhang testified that he earned 100,000,000 Renminbi

("RMB" -- Chinese currency)3 for the Company, and that for years

before he left China, he and his wife lived in a Company-owned

house.

Zhang started practicing Falun Gong in March 1998.

Between July 1999 and his departure from China in March 2001, he

alleges that he was detained and abused by the Chinese government

on three separate occasions. He was detained for seven days in

July 1999, and for thirteen days in September-October 2000. During

these two detentions, Zhang suffered physical abuse, including one

beating during the second detention that left him with a broken

vertebra. Prior to the first detention, security officers seized

Zhang's Falun Gong materials and several personal items. During

both detentions, either Zhang or his wife received notification of

his release date, and the detentions lasted no longer than thirteen

days, in accordance with Chinese criminal law at the time. During

these two episodes and another minor detention in October 1999

which lasted approximately five hours, Zhang was ordered to stop

practicing Falun Gong. He refused to sign documents renouncing

Falun Gong but did limit his practice of the faith to his home.

Zhang's practice of Falun Gong, as well as the incidents

with the security officers, also caused him problems at his job.

3 At all times relevant to this series of events, the value of the Renminbi was fixed at a rate of approximately 8.28 RMB per dollar. Zhang thus claims to have earned over $12,000,000 for the Company.

-4- After each detention, the Company urged him to stop practicing

Falun Gong. Finally, in November 2000, shortly after his third

detention, Zhang was officially fired from his job, upon orders

from a government security office. The Company retained his

services unofficially, however, and he continued to work in the

sales area at a reduced salary. In preparation for a business trip

to the United States, the Company secured the return of Zhang's

passport, which had been seized by the security office. The

security office, however, would not let Zhang receive any

commission from the trip, which Zhang predicted would be worth

$180,000.4 On March 19, 2001, Zhang entered the United States at

Los Angeles, California but soon realized that the Company had lost

the deal that he had been sent to complete. Zhang informed his

boss, who became angry and soon stopped returning Zhang's phone

calls. Zhang then contacted his friend He, who informed him that

another Falun Gong member had just received a two- to three-year

prison sentence and advised him to remain in the United States and

petition for asylum.

Zhang traveled to Baltimore, Maryland, on March 26, 2001,

where he lived with a friend, and moved to Puerto Rico on June 19.

On June 21, 2001, the Company seized Zhang's home and evicted his

4 The fact that the security office knew about the trip at all would imply that it knew that Zhang was still working for the Company. Zhang does not attempt to reconcile this with his testimony that the office had already ordered that he be fired.

-5- wife. She was also fired from her job upon orders from the

security office. Zhang testified that he still practices Falun

Gong and that he fears that, just like many other Falun Gong

practitioners, he would be imprisoned if he returned to China.

C. IJ's Decision and BIA's Affirmance

On August 8, 2003, Zhang appeared before an IJ in San

Juan, Puerto Rico. The IJ denied all of Zhang's claims. She first

pretermitted Zhang's asylum claim because it was filed one year and

sixteen days after his arrival in the United States, in violation

of the one-year deadline.5

The IJ then denied Zhang's request for withholding of

removal, finding that he had wholly failed to prove that he would

be persecuted based on his Falun Gong faith if he returned to

China. Taking Zhang's testimony as true, the IJ found that even

despite his detentions, all of which conformed with Chinese

criminal law, Zhang still enjoyed significant benefits from the

government in the sense that he remained employed by a company in

which the government was a majority owner. Therefore, the IJ held

that even though some Falun Gong practitioners were persecuted,

this did not mean that Zhang himself would be persecuted or

tortured upon his return to China. Instead, the IJ characterized

5 Zhang testified that he believed that he needed his birth certificate to complete his application and was thus waiting until he received it in order to file. The IJ held that this was not a valid excuse for his tardiness, because he could have easily filed by using his passport.

-6- Zhang's decision to remain in the United States as a result of a

"business transaction turned sour" and noted that the seizure of

his home was not related to his practice of Falun Gong, but instead

to the fact that he had effectively abandoned his job, and that the

Company owned the house. Moreover, the IJ noted, Zhang had not

corroborated his testimony with a letter from either his wife or

his mentor He, but even if he had done so, this would not have

discharged his burden of proof on this count. Finally, the IJ held

that Zhang had provided no evidence that he was tortured in China,

defeating his claim for protection under CAT. The IJ granted Zhang

voluntary departure.

D. Motion to Reopen

On July 26, 2005, Zhang filed a motion to reopen his

removal proceedings claiming that he could state new facts and

provide documents that he could not have been presented at the

prior hearing. The main piece of evidence was a letter from He

dated March 25, 2005, which generally corroborated Zhang's

testimony.6 It also provided additional background related to the

recent death of Zhang's father and the government's refusal to

provide compensation for his death, which He claims is evidence

6 Zhang claims that He was unwilling to write on his behalf earlier, due to threats made by the government to He's business interests.

-7- that the government is still "going after" Zhang.7 The other new

items of evidence submitted by Zhang were (i) He's Hong Kong ID

card; (ii) a business license for the Company; (iii) a shareholding

structure certificate for the company; (iv) sections from the

criminal procedure code of China; (v) a forensic report on the

death of Zhang's father; (vi) a diagnosis report on the same; (vii)

Zhang's notarized birth certificate. The BIA denied the motion to

reopen on the grounds that it was filed more than 90 days after the

BIA's decision, in contravention of

(c)(2).

II. Discussion

We review the BIA's denial of a motion to reopen for

abuse of discretion. Maryam v. Gonzáles,

(1st Cir.

2005). An abuse of discretion will be found "where the BIA

misinterprets the law, or acts either arbitrarily or capriciously."

Chen v. Gonzáles,

(1st Cir. 2005).

"There are at least three independent grounds on which

the BIA may deny a motion to reopen." INS v. Abudu,

(1988). It may hold that the movant (i) has not established a

prima facie case for the substantive relief sought; (ii) has not

introduced evidence that is material and was unavailable during the

original proceedings; or (iii) is simply not entitled to a

discretionary grant of relief.

. See also 8 C.F.R.

7 Neither He's letter nor the other documents submitted with Zhang's motion to reopen provide any evidence as to why Zhang would be entitled to compensation for his father's death.

-8- § 1003.2(c)(1) In most circumstances, a motion to reopen must be

filed within 90 days of a final administrative order of removal.

8 U.S.C. § 1229a(c)(7)(C)(i). An exception to this deadline is

made for evidence based on changed conditions in the country to

which removal has been ordered, "if such evidence is material and

was not available and would not have been discovered or presented

at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii).8

In this case, it is not disputed that Zhang missed the

90-day deadline. Zhang instead argues that the BIA should have

applied the equitable tolling doctrine to extend his filing period.

This doctrine "provides that in exceptional circumstances, a

statute of limitations may be extended for equitable reasons not

acknowledged in the statute creating the limitations period."

Neverson v. Farquharson,

(1st Cir. 2004) (citations

and internal quotation marks omitted). The doctrine is to be

"sparingly invoked." Jobe v. INS,

(1st Cir. 2001)

(citing Irwin v. Dep't of Veterans Affairs,

(1990)).

The equitable tolling doctrine "is read into every

federal statute of limitation," Holmberg v. Armbrecht,

(1946), but "deadlines that define the court's

jurisdiction may not be equitably tolled." Neverson,

Though Zhang did not argue for such an exception, the BIA held that his new evidence in any case did not establish changed circumstances in China so as to permit it.

-9- 40; see also Soriano v. United States,

(1957).

We have not yet decided whether the motion to reopen deadline is

jurisdictional, and therefore whether it can be equitably tolled.

See Joumaa v. Gonzáles,

(1st Cir. 2006); Chen v.

Gonzáles,

n.3. We need not do so here.

Zhang did not raise his equitable tolling argument before

the BIA. Indeed his motion to reopen made at best passing

reference to its untimeliness.9 Zhang therefore failed to pursue

this remedy below, and we "may review a final order of removal only

if . . . the alien has exhausted all administrative remedies

available to the alien as of right . . . ."

(d)(1).

Because Zhang did not exhaust all of his administrative remedies

regarding his equitable tolling claim, we lack jurisdiction to

adjudicate it. See Joumaa,

(declining to decide

whether the equitable tolling doctrine applies to an untimely

motion to reopen because petitioner did not argue the issue before

the BIA).

We also note that even setting aside the issue of

untimeliness, the BIA still did not abuse its discretion by denying

9 Zhang concluded his BIA motion to reopen by stating that "[i]n light of the newly discovered material information, the respondent respectfully requests that this Honorable Board reopen his removal proceeding." It would be quite a stretch to say that this reference to "newly discovered material information" addresses the fact that his motion was untimely, and in any case, Zhang does not brief this or any other argument regarding his failure to raise equitable tolling before the BIA.

-10- Zhang's motion to reopen. Of the documents Zhang submitted with

his motion to reopen, only the letter from He was arguably

unavailable at the time of Zhang's original proceedings, and its

materiality to the case is minimal.10 Zhang does not show that the

new evidence regarding withholding of compensation after his

father's death now establishes a prima facie case for relief, and

even if it did, the BIA still had discretion to deny the motion.

Zhang does not argue that the BIA's decision to do so was arbitrary

or capricious. See Chen,

. Finally, the BIA's

failure to equitably toll the deadline when Zhang did not urge it

to do so -- nor have we ever held that it even could do so -- was

certainly not a misinterpretation of the law.

In sum, Zhang may not pursue his equitable tolling

argument before this Court because he did not raise it before the

BIA. He has presented no other legal basis to excuse the

untimeliness of his motion to reopen. Finally, even had the motion

been timely filed, the BIA still did not abuse its discretion in

denying it.

III. Conclusion

For all of the foregoing reasons, we deny the petition

for review and affirm the decision of the BIA.

Affirmed.

10 Indeed He's letter serves mainly to corroborate Zhang's testimony, but the IJ explicitly stated that even with such corroboration Zhang could still not discharge his burden of proof.

-11-