                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                           OCT 06 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ZUO CHEN ZHANG,                                  No. 12-71269

              Petitioner,                        Agency No. A075-614-733

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted September 3, 2015**
                                Pasadena, California

Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,*** Chief
District Judge.

      Zuo Chen Zhang petitions for review of the Board of Immigration Appeals’

(BIA) order (1) dismissing his appeal from the immigration judge’s (IJ) denial of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable John R. Tunheim, Chief District Judge for the U.S.
District Court for the District of Minnesota, sitting by designation.
                                                                           Page 2 of 5
his application for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT); and (2) denying his motion to remand. We

deny Zhang’s petition in part and dismiss it in part.

       1. We need not decide whether the REAL ID Act of 2005 applies here. The

BIA decided the case, in the alternative, under both pre- and post-REAL ID Act

standards. Even under pre-REAL ID standards, Zhang has not established that he

is entitled to relief.

       2. The BIA did not abuse its discretion when it determined that Zhang

committed a “particularly serious crime” that renders him ineligible for asylum.

See 8 U.S.C. § 1158(b)(2)(A)(ii); Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th

Cir. 2013). An asylum applicant who has been “convicted of an aggravated felony

shall be considered to have been convicted of a particularly serious crime.” 8

U.S.C. § 1158(b)(2)(B)(i). A “crime of violence . . . for which the term of

imprisonment [is] at least one year” constitutes an aggravated felony. Id.

§ 1101(a)(43)(F).

       Zhang’s 2003 conviction for the willful infliction of corporal injury, in

violation of California Penal Code § 273.5(a), is categorically a “crime of

violence.” Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083–86 (9th Cir. 2010).

Although Zhang was originally sentenced to 364 days’ imprisonment, he was later
                                                                          Page 3 of 5
sentenced to three years’ imprisonment due to a probation violation. That term of

imprisonment renders his 2003 conviction an aggravated felony. See United States

v. Jimenez, 258 F.3d 1120, 1125–26 (9th Cir. 2001). Accordingly, Zhang’s 2003

aggravated felony conviction is a “particularly serious crime” that disqualifies him

for asylum relief.

      3. We lack jurisdiction to decide whether Zhang is eligible for withholding

of removal. Zhang contends that the IJ’s “particularly serious crime”

determination is erroneous because the IJ did not address the In re Frentescu

factors. He did not, however, raise this argument on appeal to the BIA. His

“particularly serious crime” claim with respect to withholding of removal is

unexhausted and therefore falls outside our jurisdiction. See Abebe v. Mukasey,

554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam).

      4. Substantial evidence supports the BIA’s determination that Zhang is

ineligible for CAT relief. Assuming, as the BIA did, that Zhang provided credible

testimony, Zhang failed to meet his burden of proving that he more likely than not

would be tortured because of his religious beliefs upon returning to China. Zhou v.

Gonzales, 437 F.3d 860, 871 (9th Cir. 2006); Zhang v. Ashcroft, 388 F.3d 713, 721

(9th Cir. 2004) (per curiam).
                                                                             Page 4 of 5
      5. The police report concerning Zhang’s 2003 conviction—which relies on

evidence gathered from witness interviews conducted in Mandarin—did not

require a certificate of translation to be admissible, as the report was written in

English. See Morales Apolinar v. Mukasey, 514 F.3d 893, 898 n.7 (9th Cir. 2008).

      6. Zhang contends his due process rights were violated when the BIA

reopened the proceedings before giving him an opportunity to file a supplemental

response in opposition to the government’s motion to reopen. But Zhang did file a

response in opposition to the motion, and he presented his arguments before the IJ

granted the government’s motion to reopen. Zhang has also failed to demonstrate

how he was prejudiced by the denial of his request to file a supplemental response.

See Dent v. Holder, 627 F.3d 365, 373 (9th Cir. 2010).

      7. The government was not precluded from charging Zhang with

removability as an aggravated felon in the reopened proceedings. The issue of

whether Zhang’s 2003 conviction rendered him ineligible for relief was not

adjudicated on the merits during the earlier proceedings, as those proceedings were

terminated on procedural grounds.

      8. The BIA properly determined that the government did not engage in

affirmative misconduct. Zhang claims that the government charged him with

removability despite already knowing that he had been granted conditional
                                                                           Page 5 of 5
derivative asylum. Zhang has failed to prove that the government’s conduct

exceeded mere negligence, see Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir.

2007), or that the alleged wrongful act caused him to suffer a serious injustice, see

Perez-Mejia v. Holder, 663 F.3d 403, 417 (9th Cir. 2011), as amended.

      9. The BIA did not abuse its discretion when it denied Zhang’s motion to

remand. See Movsisian v. Ashcroft, 395 F.3d 1095, 1097–99 (9th Cir. 2005).

Motions to remand are held to the same formal requirements as motions to reopen.

Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987). Accordingly, the BIA can

deny a motion to remand because of the movant’s failure to present new evidence

that was previously unavailable. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th

Cir. 2010). Zhang contends that the BIA should have remanded his proceedings

due to his introduction of a law review article. See Jennifer L. Zegel, Bloody

Persecution: Plight of the Falun Gong, 9 RUTGERS J.L. & RELIGION 8 (2007).

Zhang has not demonstrated how the article, published four years before the start

of his reopened proceedings, was previously unavailable.

      PETITION DENIED IN PART and DISMISSED IN PART.
