United States Court of Appeals
For the First Circuit
No. 06-1655
XIE MEI ZHENG,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
Wei Jia and Law Office of Wei Jia on brief for petitioner.
Michele R. Woodruff, Attorney, United States Department of
Justice, Peter D. Keisler, Assistant Attorney General, and Terri
J. Scadron, Assistant Director, Office of Immigration Litigation,
on brief for respondent.
January 30, 2007
LYNCH, Circuit Judge. Xie Mei Zheng, a native and
citizen of China, petitions for review of a final order of removal
from the Board of Immigration Appeals. The Immigration Judge
found Zheng not to be credible, and further concluded that even if
Zheng were credible she had not established that she had a well-
founded fear of persecution. The BIA adopted the IJ's opinion and
affirmed. Because the IJ's decision is supported by substantial
evidence, we deny the petition for review.
I.
Zheng was born in China in December 1981. On January 6,
2000, she entered the United States using false travel documents.
Immigration authorities detained her, and on February 17, 2000, she
was issued a Notice to Appear in deportation proceedings. Zheng
conceded that she was inadmissible, and she filed an application
for political asylum on December 15, 2000. She also applied for
withholding of removal and protection under the Convention Against
Torture (CAT).
Zheng's application stated that she feared persecution on
the basis of her political opinion. In an accompanying affidavit,
she described an incident in which she had been expelled from
junior high school for her opposition to China's birth control
policies. She claimed to have expressed her opinions in a "school
news letter" in May 1997. While the school principal had twice
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asked her to "write a self-criticism withdrawing [her] opinion,"
she said she refused to do so and was expelled.
Zheng's affidavit also described a second incident. She
stated that in August 1999 she and her boyfriend had attempted to
obtain a marriage certificate. They were turned away because Zheng
was underage. Zheng believed that because of this attempted
marriage, Chinese authorities became suspicious that she was having
a sexual relationship with her boyfriend and that she might be
pregnant. According to Zheng, this suspicion was misplaced as she
was a virgin and intended to remain so until marriage.
Nonetheless, in September 1999 she was notified that she had to
attend a gynecological exam. She did not go, as she feared an IUD
would be inserted into her against her will. She then received a
second notice in November 1999 and so she went into hiding at her
aunt's home for about a month. After that, she came to the United
States.
On December 17, 2004, a hearing on Zheng's claims was
held before an IJ. Zheng was the only witness at the hearing, and
her testimony was given in the Mandarin language with a translator
present. Her asylum application and accompanying affidavit were
entered into evidence, as were China's country reports from 1999
and 2003.
Zheng's testimony began by discussing her attempt to
obtain a marriage license and the authorities' subsequent attempts
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to make her submit to a gynecological exam. She also testified
about her expulsion from junior high school.
In her testimony about the junior high school incident,
Zheng was asked where she wrote the "opinions" that caused her to
be expelled. As translated, her response was: "I just wrote out
those in my class for what I feel, for what I felt." Her attorney,
who said that he spoke Mandarin, objected to the translation and
told the IJ that what Zheng actually said is that she wrote in
"some kind of publication specifically for the class, for the
particular class. . . . It's like either in the paper form or on
blackboard [sic], it's like a, you know, (indiscernible) after
(indiscernible), that type of thing." The IJ instructed Zheng's
attorney to ask her further questions to clarify the issue. Zheng
clarified that she had written her articles in chalk on the
blackboard in the back of the class -- it was the class policy that
students were free to write about their opinions and about current
events on the rear blackboard. Zheng then testified that the
principal instructed her to stop writing her anti-government views
on the blackboard, that she did not comply, and that she was
accordingly dismissed from her middle school.
Her counsel also moved to admit supporting documentary
evidence, for both this incident and the marriage license incident,
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but it does not appear that the documentary evidence was ever
admitted for any purpose beyond identification.1
The IJ asked Zheng why she feared returning to China in
light of the fact that she was now old enough to marry. He
specifically asked if she feared that anything would happen to her
on her return. Her response was "I'm not very clear, I'm not sure.
Maybe I'll be thrown in jail . . . [b]ecause I was smuggle[d] out
of the country and it's against law [sic]."
On cross-examination, the government's attorney asked
Zheng why she had applied for a marriage license even though she
knew she was ineligible, especially since her actions were likely
to draw the attention of family planning officials. Her response
was that she did not realize that the officials would come after
1
The first supporting document was a letter purporting to be
from Zheng's junior high school. According to the certified
translation, the letter states that Zheng had "many times published
articles on the class bulletin board" against China's birth control
policies, and that she was being expelled for her refusal to stop
doing this. The second document was a letter purporting to be from
the regional birth control office; it informed Zheng that she was
required to report for an examination. Zheng testified that both
documents had been in the possession of her parents, who then
mailed them to her in the United States after her arrival.
The documents had not been sent for authentication, and at the
hearing the government's attorney argued that authentication was
necessary. The IJ expressed frustration at delays in the case and
stated for the record that "I'm very likely going to have to make
a decision today based on what I have and what makes sense, and
like that."
Prior to cross-examination, Zheng's attorney asked that the
documents be admitted into evidence. The IJ responded by asking if
it was OK to do this after cross-examination. Zheng's attorney
agreed, but it does not appear that the issue was revisited at any
later point in the proceedings.
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her, and that she applied because she wanted to get married, and so
she decided to try her luck.
Zheng was also questioned further about going into
hiding. She testified that she first went into hiding in September
of 1999 at an aunt's house -- specifically, her father's younger
sister. She stated that she stayed at her aunt's house until she
left China, and that she never had any contact with Chinese
officials. Several questions later, however, she stated that she
had hid at her aunt's house for a month, and that after a month she
hid in another aunt's house -- this aunt being her mother's sister.
When asked why she had only mentioned one aunt in her affidavit,
Zheng responded that she had spent more time hiding with one of the
aunts, and that at the time she wrote her affidavit she did not
think it important to be specific about where she was hiding; she
thought it sufficient to merely say she was hiding at her aunt's
house.
The government's attorney questioned Zheng further on the
junior high school incident, pointing out that her affidavit had
referred to a "school newsletter." As translated, Zheng's response
was that the articles were in her "class's publication," and that
her understanding of a "school newsletter" was that it is like
something published on a class blackboard. On further questioning,
she stated that she had twice written articles on the blackboard,
once in May 1997, and again in July 1997. When asked why the
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second article was not mentioned in her earlier affidavit, Zheng
responded that she felt it was not a major point.
Zheng conceded on cross-examination that she had never
been forced to have an IUD inserted, had never had an abortion, had
never had a tubal ligation, and that she had not been subjected to
physically invasive techniques.
That day, the IJ orally denied Zheng's applications for
asylum, withholding of removal, and CAT protection. As an initial
matter, the IJ determined that Zheng was not credible. Because we
do not reach that ground, we do not recount the evidence and
reasoning on which the IJ relied.
The IJ independently concluded that the events Zheng had
testified to, even if true, did not amount to past persecution.
Additionally, he concluded that Zheng's testimony could not be
enough to establish a well-founded fear of persecution. He noted
that Zheng was now old enough to get married and have children, and
that she would be "in the same position as anybody else in China"
if she returned. The IJ further stated that Zheng had not met her
burden for demonstrating eligibility for withholding of removal,
nor did she show that she would likely be tortured in China.
In a brief per curiam order, the BIA adopted and affirmed
the IJ's decision. The BIA stated that the IJ's adverse
credibility determination was not clearly erroneous, and that even
if Zheng's testimony were credible she had neither established that
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she had suffered past persecution, nor established that she had a
well-founded fear of future persecution based on a protected
ground. Because the BIA adopted and affirmed the IJ's ruling, but
also discussed some of the bases for the IJ's opinion, we review
both the IJ's and BIA's opinions. Ouk v. Gonzales, 464 F.3d 108,
110 (1st Cir. 2006).
II.
Zheng's petition for review challenges only the adverse
credibility determination and the agency's determination that Zheng
did not qualify for asylum even if credible.
In order to qualify for asylum, an alien must show that
he or she is a "refugee" within the meaning of the immigration
laws. See 8 U.S.C. § 1158(b)(1). The alien has the burden of
proof for establishing that he or she is eligible for asylum. Id.
§ 1158(b)(1)(B)(iii); Jean v. Gonzales, 461 F.3d 87, 90 (1st Cir.
2006).
To demonstrate that he or she is a "refugee," the alien
must show that he or she has either suffered past persecution, or
has a well-founded fear of future persecution, on account of his or
her "race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see also
Alibeaj v. Gonzales, 469 F.3d 188, 191 (1st Cir. 2006). If an
individual has been "forced to abort a pregnancy or to undergo
involuntary sterilization, or . . . has been persecuted for failure
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or refusal to undergo such a procedure or for other resistance to
a coercive population control regime," that individual is deemed to
have been "persecuted on account of political opinion." 8 U.S.C.
§ 1101(a)(42). Similarly, an individual who "has a well founded
fear that he or she will be forced to undergo such a procedure or
subject to persecution for such failure, refusal, or resistance" is
deemed to have "a well founded fear of persecution on account of
political opinion." Id.
We are required to uphold the IJ's determinations unless
"any reasonable adjudicator would be compelled to conclude to the
contrary." Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st
Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)) (internal quotation
marks omitted). We bypass any analysis of the IJ's credibility
determination; even if Zheng's testimony is deemed credible, the
IJ's denial of asylum is supported by substantial evidence.
Zheng concedes that the past events she described do not
support a finding that she suffered past persecution. Cf. 8 U.S.C.
§ 1101(a)(42); Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir. 2000)
(discussing the kind of events that amount to persecution). To
prevail, Zheng must therefore show that she has a well-founded fear
of future persecution on the basis of a protected ground. That
inquiry has both a subjective and an objective component. See
Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999).
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Zheng's asylum claim falters on the objective prong.
China's country report documents that it is illegal in many areas
for single women to bear children. And there may be evidence that
some pregnant single women in China are subject to persecution.
But Zheng's affidavit explicitly stated her intention to abstain
from sex until marriage. The IJ noted that since Zheng is now old
enough to get married and have children, it is unclear why she
should reasonably fear persecution if she returned to China.
Zheng's response on this point was equivocal and she merely
ventured that she might be thrown in jail because it was illegal
for her to have been smuggled out of the country. This was not a
reason why Zheng reasonably feared persecution on the basis of a
protected ground -- an issue on which she bore the burden of proof.
The BIA rejected Zheng's attempt to rehabilitate her
argument before it. Her brief had asserted that because she
opposes China's family planning policies, it is reasonably
foreseeable that she will be persecuted for her beliefs. The brief
did not cite any evidence in the record supporting this assertion,
nor did Zheng otherwise explain why the assertion was true. The
BIA's rejection of this theory was reasonable.
In her brief to this court, Zheng supplemented her
argument with references to China's country condition reports, and
she argues that the IJ specifically erred by failing to consider
her claim in light of this evidence. Even assuming dubitante that
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Zheng has adequately preserved this argument, it lacks merit. The
cited passages merely state that the government sometimes imposes
sanctions on individuals who have unauthorized pregnancies, or who
assist others in having unauthorized pregnancies. Zheng points us
to no record evidence that she faces a reasonable probability of
persecution simply because she personally opposes China's family
planning policies. Certainly Zheng has pointed to nothing that
compels such a conclusion.
The petition for review is denied.
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