Yi Mei Zhu v. Attorney General of the United States

361 F. App'x 378
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 13, 2010
DocketNo. 09-1254
StatusPublished

This text of 361 F. App'x 378 (Yi Mei Zhu v. Attorney General of the United States) 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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Yi Mei Zhu v. Attorney General of the United States, 361 F. App'x 378 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

PER CURIAM.

Yi Mei Zhu (lead respondent) and her husband, Jie Jiang (derivative respondent) petition for review of the final removal order issued by the Board of Immigration Appeals (“BIA”) affirming the denial of Zhu’s application for asylum, withholding of removal and protection under the United Nations Convention Against Torture (“CAT”). For the reasons set forth below, we will deny the petition.

We highlight only those facts that are pertinent to our analysis. Zhu and Jiang, natives and citizens of the People’s Republic of China, come from that country’s Fu-jian Province. They entered the United States without valid visas or other entry documents. They conceded removability and requested asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure.

According to their testimony, Zhu and Jiang were married in a traditional ceremony in 1995, but they could not register the marriage with the government because Jiang was underage. Consequently, when Zhu became pregnant in May 1995, she went into hiding to avoid the Fujian Province family planning authorities. In November 1995, the authorities tracked her down and took her to a local hospital against her will where she received an injection to induce labor. She was then transported immediately to the Fouchou City Hospital where she aborted the pregnancy. Zhu was discharged from the hospital three days later. Zhu and Jiang registered their marriage in March 1996 and, in February 1997, Zhu had a son. The family planning authorities forced Zhu to have an intra-uterine device (IUD) inserted after their son’s birth. When Zhu and Jiang decided to have a second child, they fled to avoid China’s coercive family planning policies. Once in the United States, Zhu had her IUD removed. Their second child was born in the United States in 2004.

In support of her allegation that she underwent a forced abortion, Zhu submitted her out-patient medical record from Fouchou City Hospital. The Government submitted a State Department investigative report indicating, among other things, that the contents of the out-patient record were fabricated.1 The Report was based on a certification by the Deputy Director of the Fouchou City Hospital that the patient record number “00025145” was not used in 1995; induced abortions could not be done on an out-patient basis; standard medical terminology was not used in the record; and the doctor or mid-wife whose signature appeared on the document never worked at the hospital. (J.A. at 307.)

The IJ denied asylum relief as untimely and denied withholding of removal and CAT relief because Zhu failed to show that she was entitled to relief. The IJ cited certain evidentiary inconsistencies and contradictions that had “a severe impact on the respondent’s [Zhu’s] credibility.” (J.A. 37.) First, she noted inconsistencies in the testimonies of Zhu’s husband and her sister concerning Zhu’s and Jiang’s arrival in the United States. Second, the IJ found that the investigative report, which indicated that Zhu’s out-patient medical record was fabricated, seriously [380]*380undermined her testimony about a forced abortion in November 1995. The IJ thus concluded that, absent credible evidence, Zhu failed to show that she had suffered past persecution.

The IJ also found that Zhu failed to show a well-founded fear of future persecution based on the State Department’s 2004 Country Report on Human Rights Practices in China (2004 Country Report), which indicated that China allowed couples to have two children if the births were separated by a period of years. Noting that there was a seven-year gap between the births of Zhu’s two children, the IJ concluded that there was insufficient evidence to find that the respondents would be forcibly sterilized in China for having a second child in the United States. The BIA affirmed the IJ’s untimeliness determination as to asylum and her adverse credibility determination as to all claims for relief, concluding that Zhu failed to meet her burden of establishing eligibility for asylum, withholding of removal, and CAT relief.

In most cases, we have jurisdiction to review a final order of removal involving the denial of asylum. 8 U.S.C. § 1252(a)(1). However, 8 U.S.C. § 1158 provides that no court shall have jurisdiction to review any determination regarding the timeliness of an asylum application and the applicability of the exceptions. See Tarrawally v. Ashcroft, 338 F.3d 180, 184-85 (3d Cir.2003). Under the REAL ID Act, we have jurisdiction to review constitutional claims and questions of law, but not factual or discretionary determinations related to the timeliness of an asylum application. Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006); 8 U.S.C. § 1252(a)(2)(D). Zhu has not raised any legal or constitutional claims regarding the IJ’s determination that her asylum claim was untimely.2 Because we lack jurisdiction to consider her asylum application for timeliness, our review is limited to issues relating to the denial of withholding of removal and relief under the CAT.

To be eligible for withholding of removal, Zhu must demonstrate that it is more likely than not that her life would be threatened in China on account of race, religion, nationality, membership in a particular social group, or political opinion. Tarrawally, 338 F.3d at 186; 8 U.S.C. § 1231(b)(3)(A). To be eligible for CAT relief, Zhu must demonstrate that it is more likely than not that she would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).

When, as here, the BIA substantially relies on the IJ’s adverse credibility determination, the Court reviews the decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We may reverse the BIA’s decision only if the record permits but one reasonable conclusion that was not the one reached by the Board. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The IJ’s adverse credibility finding must be upheld unless any reasonable adjudicator would be compelled to conclude to the contrary. Fiadjoe v. Attorney General, 411 F.3d 135, 153 (3d Cir.2005). Only inconsistencies going to the heart of the claims will be deemed to compromise credibility.3 Chukwu v. Attor[381]*381ney General, 484 F.3d 185

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361 F. App'x 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yi-mei-zhu-v-attorney-general-of-the-united-states-ca3-2010.