Jung Yong-Woo v. Holder

FILED
NOT FOR PUBLICATION OCT 19 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JUNG YONG-WOO, aka Shouzhe Jin, No. 06-72326

Petitioner, Agency No. A077-753-202

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted October 6, 2010
Pasadena, California

Before: HALL, FISHER and BYBEE, Circuit Judges.

Petitioner Jung Yong-Woo, aka Jin Shouzhe (hereinafter “Petitioner”),

contests removal on grounds that he is eligible for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”) on account of his

brief, two-week long affiliation with Falun Gong, a movement banned by the

government in China, his alleged home country. We have jurisdiction to review

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the decision of the Immigration Judge (“IJ”), as affirmed by the Board of

Immigration Appeals (“BIA”), under 8 U.S.C. § 1252(b). Because substantial

evidence supports the IJ’s conclusions that (1) Petitioner did not present sufficient

credible evidence to establish his identity as a Chinese citizen, and (2) Petitioner

failed to establish a “well-founded fear” of persecution in China, we deny the

petition for review.

Petitioner’s first argument is that the IJ erred in concluding that Petitioner

failed to prove that he was a citizen of China. The IJ’s conclusion was based on an

adverse credibility finding. We must respect the IJ’s credibility findings unless the

petitioner “has presented evidence so compelling that no reasonable factfinder

could find that he was not credible.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th

Cir. 2003) (citation and internal quotation marks omitted). The IJ’s adverse

credibility finding was based on Petitioner’s failure to adequately explain how he

came into possession of a genuine South Korean passport containing his picture

and bearing the name Jung Yong-Woo. The IJ noted Petitioner’s inability to

describe the circumstances of how he obtained the Korean passport in any detail,

beyond generalized assertions that smugglers had given it to him. The IJ also

found Petitioner’s explanation for why he listed Korean names rather than his

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parents’ actual names on the I-213 and represented his parents to be Korean

citizens was incredible.

Petitioner has not supplied evidence sufficient to compel a reasonable

factfinder to reverse the IJ’s adverse credibility determination. Beyond his

questionable testimony, Petitioner presented various identifying documents issued

by the Chinese government, including a Chinese passport. Even if we presume

that the documents Petitioner presented are genuine, they still do not explain how

he came into possession of the Korean passport, or why he told U.S. immigration

authorities that he was Korean.

Petitioner disputes the authenticity of the Korean passport and notes that the

IJ denied him the opportunity to cross-examine the government’s forensic expert

who found the Korean passport to be genuine. The due process clause of the Fifth

Amendment and 8 U.S.C. § 1229a(b)(4)(B) require that aliens in removal

proceedings be afforded a “reasonable opportunity” to cross-examine government

witnesses. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir.

2005). The IJ’s explanation that her hearing room lacked the proper equipment for

a telephonic hearing is not an acceptable excuse for denying Petitioner an

opportunity to cross-examine the government’s expert. Although the IJ’s ruling

was in error, because we hold that the IJ’s credibility findings are supported by

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other evidence in the record, and because Petitioner failed to show a well-founded

fear of persecution, the IJ’s error was ultimately not prejudicial.1

Petitioner also argues that the IJ erred in finding that Petitioner did not

establish a “well-founded fear” of persecution required for an asylum claim under

8 U.S.C. § 1101(a)(42)(A). Petitioner’s asylum claim is based on practicing for

two weeks exercises prescribed by Falun Gong, a movement banned by the

Chinese government.

Petitioner’s brief affiliation with a banned movement and inquiries from the

police are not sufficient to establish a well-founded fear of persecution. The

Chinese authorities, moreover, have not arrested or otherwise disturbed Petitioner’s

family since his departure. Nor do we have any evidence that the police have

inquired about Petitioner since March 2004, a year before the IJ’s decision.

Finally, the State Department’s human rights report supplied by Petitioner notes

that the vast majority of Falun Gong practitioners detained during the initial

crackdown against the movement in 2000 have since been released.

Petitioner also seeks withholding of removal under 8 U.S.C. § 1231(b)(3)

and protection under the CAT. Because Petitioner must meet a higher standard of

1
At argument, counsel for the government noted the court’s concerns with
the IJ’s handling of Petitioner’s request for cross-examination and agreed to
investigate and report back to the court at a later date.

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proof than the “well-founded fear” standard to succeed on these claims , these

claims must fail as well. See Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir.

2003) (to qualify for CAT protection, alien must show that he will more likely than

not be tortured in his home country if removed); Al-Harbi v. INS, 242 F.3d 882,

888-89 (9th Cir. 2001) (alien must show that he will more likely than not be

persecuted if removed to be eligible for cancellation of removal).

The petition for review is DENIED.