Zheng v. Atty Gen USA

Opinion

Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit

7-20-2005

Zheng v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3008

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IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________________

No. 04-3008 ____________________

QUN ZHENG, Petitioner

v.

ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

On Petition for Review of an Order of the Board of Immigration Appeals (Board No. A78-863-293) ______________________

Submitted Under Third Circuit LAR 34.1(a) June 30, 2005 Before: RENDELL, BARRY and BECKER, Circuit Judges

(Filed July 20, 2005)

________________________

OPINION OF THE COURT ________________________

BECKER, Circuit Judge.

This is a petition for review by Qun Zheng, a native and citizen of China, of a decision by the Board of Immigration Appeals (BIA) affirming, without opinion, a

decision by an Immigration Judge (IJ) denying Zheng’s requests for asylum, withholding

of removal, and relief under the Convention Against Torture (CAT). Because we find that

the IJ’s decision was based on substantial evidence, we will deny the petition for review.

I.

Qun Zheng, also known as Zhao Xin Zhu, was born in China in 1989. He claims

that his mother was forcibly sterilized shortly after giving birth to him, because he was

her third child and she had thus violated China’s family planning policy. His father left

China in 1992, and his mother in 1997, leaving Zheng with his grandparents. Both of

Zheng’s parents came to the United States and petitioned for asylum. Their petitions were

denied, although it appears that they both remain in the United States. See Xiu Jin Wang

v. BIA, 87 Fed. Appx. 209 (2d Cir. 2004) (unpublished summary order).

Zheng claims that, in April 2002, he wrote an essay called “My Mother” for a

school assignment. Zheng’s essay was allegedly highly critical of the Chinese

government, and of his mother’s forcible sterilization. According to Zheng, in reaction to

this essay, the principal of his school demanded that Zheng write a “self-criticism”

renouncing it. If he failed to do so, he claims, he would be sent to a juvenile re-education

camp.

Zheng relates that the principal sent him home to write his self-criticism, and that,

after discussing the issue with his grandparents, he decided to go into hiding at his uncle’s

2 house. He did so some five to eight days later, never having returned to school. At some

point after this, his grandmother came to visit Zheng in hiding. She allegedly told him that

the principal of the school had called her and told her that if Zheng was found he would

be sent to the juvenile re-education department. She therefore contacted smugglers to get

Zheng to the United States to be reunited with his parents. After about a week at his

uncle’s, Zheng left with a smuggler, who obtained false documents for him. After staying

in a hotel with the smuggler for some time, he left for America, and arrived in Chicago on

June 10, 2002.

Zheng was stopped at the airport and taken into custody. Zheng was released from

custody in August 2002, and went to live with his mother in New Jersey. In November

2002, an IJ granted a change of venue to Newark. Before the IJ, Zheng conceded

removability and applied for asylum, withholding of removal, and protection under the

CAT. An asylum hearing was held on April 2, 2003, in Newark. Zheng presented his own

testimony and some documentary evidence, including a rewritten copy of his “My

Mother” essay (he did not have a copy of the original) and letters from two school friends

corroborating some aspects of his story.

At the close of the hearing, the IJ rendered an oral decision. He found that, if true,

Zheng’s allegations would make out a claim for asylum, in that he alleged a fear of

persecution based on “other resistance” to China’s family planning policy. See 8 U.S.C.

§ 1101(a)(42). But the IJ determined that Zheng had not met his burden of establishing

3 persecution because his testimony was not credible. He therefore denied asylum,

withholding of removal, and CAT protection based on past persecution. He also denied

CAT relief based on Zheng’s alleged fear that, if he returned to China, he would be

tortured for leaving China illegally.

The BIA affirmed without opinion, leaving the IJ’s opinion as the final agency

determination. We have jurisdiction over Zheng’s timely petition for review pursuant to 8

U.S.C. § 1252.

II.

Because the BIA affirmed without opinion, we review the IJ’s opinion. Dia v.

Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). The standard of review is the

familiar “substantial evidence” standard: “[T]he administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). Adverse credibility determinations are factual

findings subject to substantial evidence review. Abdulrahman v. Ashcroft, 330 F.3d 587,

597 (3d Cir. 2003). But credibility findings must be grounded in the record, id., and must

be based on inconsistencies and improbabilities that go to the heart of the asylum claim,

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).1

1 Congress has recently revised this judicially-created standard to allow a trier of fact to find a lack of credibility based on any inconsistency or falsehood, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Real ID Act of 2005, § 101(a)(3), Pub. L. No. 109-13, 119 Stat. 231, 303, to be codified at 8 U.S.C. § 1158(b)(1)(B)(iii). This provision, however, applies only to applications for asylum made after the effective date of the Real ID Act, see id.

4 A.

The IJ found numerous inconsistencies and implausibilities in Zheng’s evidence.

Zheng persuasively disputes several of the IJ’s findings. Most notably, the IJ found it

“utterly implausible” that the principal would allow Zheng to return home to write his

self-criticism, rather than require him to write it immediately in his office. The IJ pointed

to no basis in the record, or in logic or experience, for this finding of implausibility.

“Adverse credibility determinations based on speculation or conjecture, rather than on

evidence in the record, are reversible,” Gao, 299 F.3d at 272, and we reject this

conclusion as pure speculation.

The IJ also noted that Zheng’s I-589 form, part of his written asylum application,

lists his address as his grandparents’ hometown from birth until June 2002. The IJ found

the lack of any indication that Zheng lived with his uncle, or otherwise in hiding,

important: “The fact that he lived at that address before coming to the United States, and

not at the uncle’s place, or somewhere else, is very revealing. It constricts [sic] the whole

notion of flight.” The IJ found it a “major significant inconsistency” that Zheng listed

only this one address in China.

Zheng argues that this finding amounts to “no more than a game of ‘gotcha’ with a

juvenile Respondent.” Zheng is a teenager who speaks little or no English; his mother

read over the I-589 form before he signed it, but he apparently did not. Furthermore, as

§ 101(h)(2), and so does not apply to Zheng’s case.

5 the form asks aliens to list their “residences during the last five years,” it would not be

unreasonable for Zheng to omit places where he stayed in hiding for no more than a few

weeks. The omission strikes us as only a minor error, and such “minor inconsistencies and

minor admissions that reveal nothing about an asylum applicant’s fear for his safety are

not an adequate basis for an adverse credibility finding.” Gao, 299 F.3d at 272 (internal

quotation marks omitted).

In short, we are troubled by some of the reasons underlying the IJ’s adverse

credibility finding. Nonetheless, we are bound to uphold the IJ’s decision if it is supported

by substantial evidence, and may do so even if we reject some of its bases. See He Chun

Chen v. Ashcroft, 376 F.3d 215, 224-25 (3d Cir. 2004) (finding substantial evidence for

an adverse credibility determination despite our “extreme discomfiture” with some of the

IJ’s specific findings).

B.

In this case, the most compelling support for the IJ’s adverse credibility

determination comes from the simple implausibility of Zheng’s story. Zheng’s testimony,

his asylum application, and his supporting documentary evidence all strongly support the

IJ’s conclusion that this case “is all about a young boy wanting to join his parents,” rather

than about an opponent of China’s birth control policies fleeing governmental

persecution. The copy of “My Mother” in the record, which Zheng allegedly rewrote from

memory after arriving in the United States, creates the distinct impression that it was

6 written solely for asylum purposes. For a school assignment to write about his mother,

Zheng claims to have written an essay consisting largely of criticisms of “Chinese

government cadres” and admonitions that “the cadres had better watch their behavior and

be nice to ordinary people.” The IJ was within his rights to suspect the authenticity of this

strange and tendentious essay.

In Jishiashvili v. Attorney General, 402 F.3d 386, 393 (3d Cir. 2005), we

explained the requirement that a credibility determination based on “implausibility” must

be “grounded in the record”—as, for example, by reference to country conditions—in

order to avoid “speculative or conjectural reasoning.” We think that the IJ’s implausibility

determination here had some basis in the record, in that there was evidence to support his

belief that Zheng came to America because he missed his parents, not because he was

persecuted.

C.

At all events, the IJ did not rely on implausibility alone. Instead, he determined

that, due to the inherent implausibility of Zheng’s story, and the (relatively minor)

contradictions in his testimony, it would not be unreasonable to expect some evidence to

corroborate Zheng’s account. In Abdulai v. Ashcroft, 239 F.3d 542, 551-54 (3d Cir.

2001), we upheld the BIA’s rule on corroboration set out in In re S-M-J-, 21 I. & N. Dec.

722 (BIA 1997). Under this rule, “(1) an applicant need not provide evidence

corroborating the specifics of his or her testimony unless it would be ‘reasonable’ to

7 expect the applicant to do so; but (2) if it would be ‘reasonable’ to expect corroboration,

then an applicant who neither introduces such evidence nor offers a satisfactory

explanation as to why he or she cannot do so may be found to have failed to meet his or

her burden of proof.” Abdulai, 239 F.3d at 551.

We find no fault with the IJ’s conclusion here that it would be reasonable to expect

corroboration of Zheng’s story. As the IJ noted, Zheng’s grandparents and uncle are still

in China, and lines of communication remained open. Zheng did not submit any

corroboration from them. Nor did he submit any school records indicating that he was

suspended for writing his essay.2

Instead, he submitted letters from two friends, which confirmed the broad outlines

of his story. The IJ rejected these letters, in part because neither mentioned Zheng’s

mother’s sterilization: they merely described “My Mother” as “reactionary,” without

saying that it concerned forced sterilization. Zheng is no doubt correct that the IJ was

unreasonable in assuming that Zheng would have told his friends about his mother’s

sterilization. Nonetheless, we agree with the IJ that these letters have no probative value

2 We are sympathetic to Zheng’s argument that the IJ was merely speculating that such records exist, but we note that the Real ID Act largely forecloses it. The Act provides that “[n]o court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” Real ID Act of 2005, § 101(e), Pub. L. No. 109-13, 119 Stat. 231, 305, to be codified at 8 U.S.C. § 1252(b)(4). This provision is effective immediately, and applies to Zheng’s petition. See id. § 101(h)(3), 119 Stat. at 305-06. We see no compelling reason to believe that such documents would be unavailable, and therefore cannot reverse the IJ on this point.

8 and, in fact, harm Zheng’s case. In particular, one of Zheng’s friends, Chang Hong Ye,

stated that Zheng called him from the United States in May 2002. In fact, Zheng arrived

in this country in June 2002, and was not released from custody until August 2002. His

own testimony was that he called Ye “[a] week or two after I could reach my mother’s

home,” i.e., in August 2002. When confronted with this discrepancy, Zheng stated that

“it’s possible that I made a phone call while in my paternal uncle’s home” in China in

May 2002. The IJ was entitled to find that Zheng’s initial testimony, his later

backtracking, and his corroborative evidence were in hopeless conflict, and thus damaged

his credibility.

In sum, the IJ was confronted with an inherently implausible story and an applicant

who contradicted himself in several places. He therefore looked for supporting evidence,

and found a suspicious lack of credible corroboration. Given these facts, we can hardly

conclude that “any reasonable adjudicator would be compelled” to disagree with the IJ. 8

U.S.C. § 1252(b)(4)(B). We will therefore uphold the IJ’s adverse credibility

determination.

III.

Zheng also raises a CAT claim, arguing that he will be tortured if he is returned to

China. To the extent that Zheng claims that he will be tortured for writing “My Mother,”

the IJ’s adverse credibility determination forecloses that claim. To the extent that Zheng

claims that he will be tortured for leaving China illegally, we lack jurisdiction to hear his

9 arguments, because he failed to raise them in his appeal to the BIA. See Abdulrahman,

330 F.3d at 594-95; see also 8 U.S.C. § 1252(d)(1). Furthermore, Zheng has pointed to no

evidence, much less compelling evidence, to support his claim that it is more likely than

not that he would be tortured on returning to China. See 8 C.F.R. § 208.16(c)(2).

For the foregoing reasons, the petition for review will be denied.