          United States Court of Appeals
                      For the First Circuit


No. 04-1694
No. 05-1276

                          JIN DONG ZENG,

                           Petitioner,

                                v.

              ALBERTO R. GONZALES,* Attorney General,

                           Respondent.


                 ON PETITION FOR REVIEW OF ORDERS
               OF THE BOARD OF IMMIGRATION APPEALS


                              Before

                       Boudin, Chief Judge,
                   Stahl, Senior Circuit Judge,
                    and Lynch, Circuit Judge.



          William A. Hahn and Hahn & Matkov on brief for
petitioner.
          H.S. García, United States Attorney, Miguel A. Fernández,
Assistant United States Attorney, and Rebecca Vargas Vera,
Assistant United States Attorney, on brief for respondent.


                        January 27, 2006



     *
      Alberto R. Gonzales was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the respondent in
No. 04-1694. See Fed. R. App. P. 43(c)(2).
            STAHL,    Senior   Circuit    Judge.    In    this   consolidated

petition for review, Jin Dong Zeng contests two decisions by the

Board of Immigration Appeals (BIA), one upholding the Immigration

Judge's order of removal and the other denying Zeng's motion to

reconsider or reopen the removal proceedings below.              After careful

review, discerning no error, we affirm both decisions.

                                     I.

            Zeng is a native and citizen of the People's Republic of

China.   He entered the United States at Los Angeles International

Airport on August 29, 2001, and removal proceedings were initiated

against him about two weeks later.           Zeng's attempt to enter the

United States stemmed, he said, from China's family planning policy

that allows each family to have only one child.             In rural areas,

the policy is sometimes relaxed and families are permitted two

children.   Zeng alleges that he and his wife, who lived in a rural

community in Fujian Province, had had two children without major

incident but that the arrival of their third child in 1998 caused

problems with the authorities.

            According to Zeng, after the birth of the third child,

Zeng's   wife   was   arrested,   detained    for   one   month,    and   later

sterilized.     In addition, Zeng was ordered to pay a fine of 30,000

yuan (roughly $3,000).         When the authorities approached him to

collect the fine, an altercation ensued and Zeng fled to Fuzhou

City.    He later left the country, traveled to Burma and Thailand


                                    -2-
and eventually, with the assistance of a human smuggler known as a

"snakehead," came to the United States.

          Before   the   Immigration   Judge   (IJ),   Zeng   conceded

removability but applied for asylum, withholding of removal, and

relief under the Convention Against Torture (CAT).      A non-citizen

seeking asylum in this country "bears the burden of establishing

his eligibility by proving that he qualifies as a refugee."       Nai

Qing Xu v. Gonzales, 424 F.3d 45, 48 (1st Cir. 2005) (citing 8

U.S.C. § 1158(b)(1)).    Zeng's asylum application was premised on

the 1996 amendments to the Immigration and Nationality Act, which

expanded the Act's definition of "refugee" to encompass persons who

have "been forced to abort a pregnancy or to undergo involuntary

sterilization, or who ha[ve] been persecuted for failure to undergo

such a procedure or for other resistance to a coercive population

control program." 8 U.S.C. § 1101(a)(42). The BIA interprets this

provision to protect not only those people who have themselves been

forcibly sterilized, but also their spouses.      See Gi Kuan Tai v.

Gonzales, 423 F.3d 1, 4 (1st Cir. 2005) (citing In re C-Y-Z-, 21 I.

& N. Dec. 915 (BIA 1997)).

          At the hearing before the IJ, Zeng attempted to prove

that he qualified for asylum based on the Chinese government's

forced sterilization of his wife.      Zeng's lawyer, however, was




                                -3-
quite unprepared to present his client's case.1   He did not provide

certified translations of relevant documents or proper foundations

for photographs and x-rays, and the IJ correspondingly refused to

admit those items into evidence.      As a result, the IJ rested her

decision primarily on the evidence provided by Zeng in his own

testimony.   She found his account to lack "internal coherence or

consistency" and that key details, such as when Zeng left China and

what he did afterward, had not been elucidated adequately.    The IJ

concluded that Zeng had failed to establish either that his wife

was sterilized or that such sterilization had been involuntary.

Because Zeng had not proved eligibility for asylum, the IJ denied

his application and ordered him removed to China.

          After the BIA approved the removal order, Zeng filed a

timely petition for review with this court.    He then moved the BIA

to reconsider or reopen his case, this time appending a report from

an American physician who had analyzed his wife's medical records

and x-rays and concluded that the documents were "consistent with

a forced sterilization."   When that motion was denied, Zeng again

petitioned to this court; the two petitions have been consolidated

into the present case.   See 8 U.S.C. § 1252(b)(6).




     1
      In her decision, the IJ described the proceeding as "without
a doubt one of the most poorly prepared and presented asylum cases
that I have come across in my over eight years on the bench."

                                -4-
                                      II.

           We review the BIA's denial of Zeng's motion to reconsider

or reopen for abuse of discretion.          See Zhang v. INS, 348 F.3d 289,

293 (1st Cir. 2003).2      Abuse of discretion occurs "where the BIA

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

De Xin Wang v. Ashcroft, 367 F.3d 25, 27 (1st Cir. 2004).

                                      A.

           A    motion    to    reopen      must   satisfy    two    threshold

requirements.    First, it must "establish 'a prima facie case for

the underlying substantive relief sought.'"            Fesseha v. Ashcroft,

333 F.3d 13, 20 (1st Cir. 2003) (quoting INS v. Abudu, 485 U.S. 94,

107 (1988)).    Second, the motion must offer previously unavailable

material   evidence;     that   is,   material     evidence   that   "was   not

available and could not have been discovered or presented at the

former hearing."    Orehhova v. Gonzales, 417 F.3d 48, 52 (1st Cir.

2005) (quoting 8 C.F.R. § 1003.2(c)(1)). Even if both showings are

made, the BIA still retains discretion to deny the motion.                  See

Fesseha, 333 F.3d at 20.

           Zeng contended in his motion to reopen that he now had

new evidence to demonstrate that his wife was forcibly sterilized


     2
      A motion to reconsider asks the BIA, on the existing record
only, to correct an error of fact or law in a previous BIA
decision. A motion to reopen, by contrast, offers new evidence for
the BIA's consideration. See Zhang, 348 F.3d at 292-93. Because
Zeng's claim centers around the newly proffered medical evidence he
submitted with the motion, we address the issues presented by a
challenge to a denial of a motion to reopen.

                                      -5-
and, consequently, that he is eligible for asylum.3    The evidence

he now offers consists of a letter from a Boston physician who had

read Zeng's wife's medical records and x-rays, consulted with a

radiologist, and determined that "[t]he story/history presented is

consistent with a forced sterilization bilaterally."        The BIA

considered this evidence insufficient to warrant reopening the case

because it "fails to prove [Zeng's] prima facie eligibility for

asylum and that, specifically, the [sterilization] procedure was

coerced. . . . Moreover, the evidence is simply not new as the fact

of her sterilization existed at the time of the hearing."       The

question for us is whether the BIA abused its discretion in

reaching this conclusion.

          Zeng urges us to follow the Second Circuit case of Ke

Zhen Zhao v. U.S. Dept. of Justice, 265 F.3d 83 (2d Cir. 2001).

Zhao also involved a Chinese man seeking to reopen his application

for asylum on the ground that he had new evidence to demonstrate

his wife had been forcibly sterilized.   The court held that the BIA


     3
      In addition to asylum, Zeng initially sought withholding of
removal and relief under the CAT. Because a claim for withholding
of removal requires a more stringent offer of proof from the
applicant than does a claim for asylum, if an applicant does not
succeed on the latter, he cannot succeed on the former.         See
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).
Therefore, our disposition of Zeng's asylum claim means we need not
discuss separately his claim for withholding of removal. As for
Zeng's claimed entitlement to relief under the CAT, the IJ found
that "there simply is no evidence to establish that claim on any
ground." We have seen nothing in the record that would cause us to
disagree with the IJ's assessment, and in any event Zeng does not
press his CAT claim before us.

                               -6-
abused its discretion in denying the motion to reopen.                Id. at 93.

Despite some similarity in the background facts, however, there are

dispositive differences between Zhao and the present case.

            To begin with, Zhao's hearing took place before the 1996

statutory amendments that allowed an alien to qualify for asylum

based on his spouse's coerced sterilization. At that hearing, Zhao

claimed not only that his wife was forcibly sterilized but that he

himself feared being subjected to the procedure should he return to

China.     Id. at 86.           In addition, the Zhao holding seemingly

contemplated two different possible scenarios - either the BIA

itself    found   as    fact     that    the   petitioner's   wife        had   been

sterilized, or it had not made such a finding.4                     Id.     at 93.

Assuming the first scenario, the Second Circuit held that the BIA

acted arbitrarily in denying asylum to Zhao when it had recently

granted    asylum      to   a    different     alien   on   facts    that       were

substantially parallel.           Id. at 95.     But this scenario does not

help Zeng in the case at bar, because here, the BIA made no finding

about the nature or truth of his wife's sterilization.                      To the

contrary, it cited the IJ's finding that Zeng's testimony was

inconclusive on that point.5            The second scenario in Zhao involved


     4
      Whether the BIA had made this finding was debatable from the
language of its order. See Zhao, 265 F.3d at 93.
     5
      Zeng points to the BIA's statement that the doctor's report
he submitted with his motion to reopen was "not new" because "the
fact of [the wife's] sterilization existed at the time of the
hearing." It is true that this statement appears to presume that

                                         -7-
an assumption that the BIA did not find that the petitioner's wife

had been sterilized.     The Second Circuit found it was unfair for

the BIA to then treat the evidence as not "new."               Id.     Again,

however, this is no help to Zeng, because in Zhao, the BIA had sua

sponte converted the alien's motion to reconsider – which does not

require a proffer of previously unavailable evidence - into a

motion to reopen, which does.       Id.   The court thus held that the

BIA should have given the petitioner a chance to explain why the

newly   offered   evidence   was   previously   unavailable.         Id.   In

addition, the court noted that the relevance of the new evidence

would not have been apparent at the time of the hearing four years

earlier, because dispositive changes in the law had occurred in the

interim.   Id. at 95-96.     None of those circumstances is present in

this case.

           Thus, we find Zhao inapposite to this case.               We focus

instead on the BIA's determination that the doctor's report Zeng

submitted with his motion to reopen was "not new" within the

meaning of the regulation because it was previously available.             We

see no flaw in this conclusion.      Because Zeng claimed his wife had



the wife was in fact sterilized. However, we believe it fair to
construe the statement to mean that the sterilization, if it
occurred, had already taken place by the time of Zeng's hearing.
Alternatively, the BIA could have been stating that, after looking
at the newly proffered doctor's report, now it was clear that the
sterilization had occurred. This later elucidation, however, does
not change the fact that the sterilization was not proven at the
initial hearing.

                                    -8-
been sterilized well before the hearing and had her x-rays in hand

all along, the doctor's report could have been sought in time to be

presented at that hearing.    We conclude that the BIA was within its

discretion to deny Zeng's motion solely on the ground that it did

not include the required new evidence.6

                                    B.

           It appears to us that Zeng's underlying argument is that

he should be excused from failing to present the Boston doctor's

report at his removal hearing because his lawyer, not he, is to

blame for offering only unauthenticated documents at the hearing.

This is a claim of ineffective assistance of counsel.7         An asylum

petitioner   may   satisfy   the   "previously   unavailable   evidence"

requirement by claiming that he received ineffective assistance of

counsel at the initial hearing.           See Orehhova, 417 F.3d at 52

(citing Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001)).       However,

a motion to reopen based on ineffective assistance of counsel must

be   accompanied   by   certain    specific   documents   regarding   the


     6
      Because we find that the BIA was justified in denying Zeng's
motion to reopen solely because it did not include the requisite
new evidence, we do not address the BIA's finding that the Boston
physician's x-ray analysis failed to prove Zeng's prima facie case
because it did not demonstrate that his wife's sterilization was
coerced.
     7
      Although Zeng's briefs to this court do not make this
argument in so many words, they do cite to First Circuit cases
governing ineffective assistance of counsel claims in removal
proceedings, invoke key phrases from those cases, and describe the
flawed performance of the lawyer below. We thus do not deem the
argument waived.

                                    -9-
relationship between attorney and client. See Saakian, 252 F.3d at

25-26 (discussing Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA

1988)).   In its opinion affirming the IJ's order of removal, the

BIA noted that "[i]nsofar as the respondent seeks remand on the

basis of ineffective assistance of counsel, we find that he has

failed to comply with the procedural requirements set forth in

[Lozada]."8

           It is firmly within the BIA's discretion to deny motions

to reopen for failure to meet the Lozada requirements, "as long as

it does so in a non-arbitrary manner."       Asaba v. Ashcroft, 377 F.3d

9, 11 (1st Cir. 2004).      Zeng argues that the BIA acted arbitrarily

in denying his motion when his lawyer's ineffective performance was

clear from the face of the record.          See Escobar-Grijalva v. INS,

206 F.3d 1331, 1335 (9th Cir. 2000) (BIA abused its discretion by

holding   petitioner   to   Lozada    requirements   when   facts   showing

lawyer's extreme lack of preparedness were "plain on the face of

     8
      This finding was made in the first of the BIA's two decisions
in Zeng's case, that is, its order affirming the IJ's order of
removal. In its subsequent order denying Zeng's motion to reopen,
the BIA noted that it had "already determined that the respondent
did not receive ineffective assistance of counsel." Zeng argues
that this statement is incorrect because the BIA had, previously,
determined only that Zeng had not complied with the procedural
Lozada requirements, and had not made a determination on the merits
of Zeng's claim. However, Zeng fails to note that, in its first
decision, the BIA stated it was "not persuaded" that Zeng would
have prevailed in his asylum petition, regardless of his attorney's
alleged misconduct. To prevail on the merits of an ineffective
assistance claim, an alien must show prejudice to his case, see In
re Assaad, 23 I. & N. Dec. 553, 561-62 (BIA 2003), and here the BIA
determined – albeit perfunctorily – that Zeng failed to show such
prejudice.

                                     -10-
the administrative record").             This circuit has not recognized the

"plain   on    the   face    of    the   record"    exception     to   the    Lozada

requirements; we have chosen to assess each case for arbitrariness

on its own facts.         Compare Saakian, 252 F.3d at 26-27 (BIA acted

arbitrarily     in   not    excusing      failure   to   strictly      meet   Lozada

requirements where alien, acting pro se, filed timely motion and IJ

falsely implied to alien that he had no right to re-file) with Gi

Kuan Tai, 423 F.3d at 6 (BIA did not act arbitrarily in dismissing

for failure to comply with Lozada where mitigating factors like

those in Saakian were not present).

              In this case, the transcript of the hearing before the IJ

certainly suggests that Zeng's counsel was more of a liability to

his client than an asset.           Nonetheless, Zeng was represented by a

new attorney on appeal.           There is no indication that the IJ misled

him in any way, nor that the Lozada documents were ever ultimately

produced, as they were in Saakian.               We conclude, therefore, that

"unlike Saakian, this is not a case where petitioner 'did what he

was supposed to do in order to be heard on the merits' and

nonetheless never received a merits hearing."                  Gi Kuan Tai, 423

F.3d at 6 (quoting Saakian, 252 F.3d at 27).                Thus, the BIA did not

act   arbitrarily    in     declining     to    entertain    Zeng's    ineffective

assistance of counsel claim.




                                         -11-
                               C.

          We are left with only the petition for direct review of

the BIA's order affirming the IJ's order that Zeng be removed to

China.   We may reverse that decision "only if the petitioner's

evidence would compel a reasonable factfinder to conclude that

relief was warranted."   Nai Qing Xu, 424 F.3d at 48 (citation

omitted). In light of the foregoing discussion, we have no problem

concluding that Zeng's evidence would not compel a reasonable

factfinder to find in his favor.

                              III.

          For the reasons stated above, we affirm the decisions of

the Board of Immigration Appeals.




                              -12-
