Mai Qun Zhu v. United States Department of Justice

84 F. App'x 247
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 8, 2004
DocketNo. 02-3967
StatusPublished

This text of 84 F. App'x 247 (Mai Qun Zhu v. United States Department of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mai Qun Zhu v. United States Department of Justice, 84 F. App'x 247 (3d Cir. 2004).

Opinion

OPINION

McKEE, Circuit Judge.

Mai Qun Zhu has filed this petition for review of a decision of the Board of Immigration Appeals denying his application for asylum and withholding of removal and ordering him deported. For the reasons that follow, we will deny the petition.

I.

Mai Qun Zhu, age 38, is a native and citizen of the People’s Republic of China who arrived in the United States with fraudulent immigration documents on or about June 1, 1992. On June 23, 1993, he filed an application for asylum with the former Immigration and Naturalization Service (“INS”).1 On June 3, 1998, the INS placed him in removal proceedings by filing a Notice to Appear with the Immigration Court. The Notice to Appear charged Zhu with inadmissibility because he did not have a valid unexpired immigrant visa or other valid entry document, pursuant to § 237(a)(1)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(A), at the time of his entry.

On August 5, 1998, at a hearing before an Immigration Judge, Zhu, through counsel, admitted all of the allegations in the Notice to Appear and conceded removability. However, he renewed his application for asylum and withholding of removal. On October 17, 2000, following an evidentiary hearing, the Immigration Judge de[249]*249nied Zhu’s application for asylum, withholding of removal, and for relief under the Convention Against Torture, as well as Zhu’s request for voluntary departure. Zhu appealed that decision to the Board of Immigration Appeals. On September 27, 2002, the BIA affirmed the Immigration Judge’s decision without opinion pursuant to 8 C.F.R. § 3.1(a)(7). Zhu then filed a timely petition for review.2

II.

In his written asylum application submitted in 1993, Zhu stated under penalty of perjury that in 1989 he was a student at Fuzhou Normal College. After the events at Tiananmen Square in 1989, he helped student leaders hide from Chinese officials and eventually escape from China. He stated that local authorities discovered his activities and he had to run and hide from city to city to avoid arrest.

In a written statement dated May 13, 1998, and an interview with an INS asylum officer on June 2, 1998, Zhu stated that his wife had been forcibly sterilized after the birth of their second child. When he found out, he was angry and went to the office of the population control authorities to complain. A struggle ensued and he was arrested and locked in an office. The next day, he escaped from a small window. Thereafter he came to the United States.

On October 19, 1998, Zhu renewed his asylum application before the Immigration Court, represented by his former attorney, Robert E. Porges, of New York. In this application, Zhu stated under penalty of perjury that he married his wife in 1988 and they lived in Yangxia Village, Langqu, Fozhou, Fuijan. After the birth of their daughter in 1989, his wife was fitted with an intrauterine device. However, they wanted more children, so he arranged with a private physician to remove the device. After his wife became pregnant with then-son, she went to live with her parents in a distant village.

Zhu’s wife gave birth to their son in December 1991 and returned home to Langqi where Zhu remained. Birth control officials learned of the second child and demanded that his wife undergo a tubal ligation. His wife did not want to have the procedure and went to a relative’s house to hide. Three days after his wife was scheduled for the operation, local officials came to their house accused Zhu of violating the population control policy, and attempted to take him for a sterilization procedure. A struggle ensued and Zhu escaped and left China for the United States in 1992. In 1994, his wife entered the United States to join him, leaving their two children in China.

On August 16, 2002, Zhu, represented by another New York attorney, Yee Long Poon, submitted an amended asylum application, retracting all the claims made in his previous applications. In this application, Zhu stated under penalty of perjury that, one week after the birth of their son in 1991, population authorities levied a monetary fine on their family for violating the one-child policy. On January 10, 1992, population control officials came to his house when he was not home, and forcibly took his wife to Langqi hospital for sterilization. However, his mother, who had also been at this home, went to see his aunt, who was a surgeon at the hospital, and his aunt agreed to falsify a tubal ligation by making an incision in his wife’s abdomen, but leaving the fallopian tubes untouched. Afterward, Zhu’s mother told Zhu and his wife what was done. They were relieved, but believed that they could [250]*250face persecution if they had more children. Zhu left for the United States in 1992. His wife left to join him in 1997, leaving their two children in China.

In his testimony before the Immigration Judge, Zhu admitted that he had fabricated his 1993 asylum application, and that he was never involved in the student democracy movement. He insisted that he was now telling the truth. He testified that family planning officials attempted to take his wife for a sterilization while she was still in the hospital after the birth of their second child. He later changed that, stating that the officials attempted to take her for a sterilization procedure after she had returned home following the birth of their second child. Zhu also stated that he had never been arrested in China. The Immigration Judge asked him if he remembered his interview with the asylum officer in 1998 in which he stated that he had been arrested by population control authorities and placed in a small room, from which he escaped. Zhu stated that his memory was not good ever since he was struck in the head in a construction accident when he was about 19 years old.

Zhu’s wife testified on his behalf. She is not legally in the United States and was working without authorization at Zhu’s restaurant in Clearfield, Pennsylvania. She stated that after the intrauterine device was inserted following the birth of her first child, she “just removed the device by my own self.” Three months later, she became pregnant with their second child and went to hide at her mother’s house. After the birth of their second child, she returned home. Four or six family planning officials came to the house and took her to the hospital for sterilization. She was detained at the hospital for four hours. She was taken to an operating room and given an injection that rendered her nearly unconscious. The doctor who performed the operation was Zhu’s sister-in-law. After she returned home, her mother-in-law told her about the false surgery.

On May 6, 1986, Zhu’s mother obtained from the hospital a certificate of Mrs. Zhu’s sterilization, which was presented to the Immigration Court. Zhu’s wife was asked why the attending physician listed on the certificate was not Zhu’s aunt. Zhu’s wife answered that there were two doctors at the hospital who performed the sterilizations, and when Zhu’s wife’s mother obtained the certificate from the hospital in 1998, Zhu’s aunt was not on duty and the other doctor signed the certificate. Zhu’s wife confirmed that Zhu had lied about being in the student democracy movement and about being locked in a room by family planning officials.

III.

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