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NOT FOR PUBLICATION OCT 19 2010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.
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