Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
1-31-2005
Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4579
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Zheng v. Atty Gen USA" (2005). 2005 Decisions. Paper 1546.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1546
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-4579
____________
MEI FENG ZHENG,
Petitioner
v.
JOHN ASHCROFT, Attorney General of
the United States,
Respondent
______
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A79-309-061)
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 7, 2004
BEFORE: AM BRO and VAN ANTWERPEN, Circuit Judges,
and SHADUR, District Judge*
(Filed: January 31, 2005)
OPINION
__________
*Honorable Milton I. Shadur, United States District Judge for the Northern District of
Illinois, sitting by designation.
SHADUR, District Judge
Because we write only for the parties, we provide here just those facts relevant to the
issues on review. Mei Feng Zheng is a native of China who entered the United States unlawfully
and without inspection sometime in 2000.1 On July 5, 2001 the Immigration and Naturalization
Service (“INS”) instituted removal proceedings under 8 U.S.C. § 1182(a)(6)(A)(i). At her initial
appearance before the IJ, Zheng conceded removability but sought to remain in the United States
by applying for asylum, withholding of removal and protection under the Convention Against
Torture (“Convention”). After granting a continuance to accommodate those applications, the IJ
conducted a merits hearing and then orally denied Zheng’s request for relief. Specifically the IJ
concluded that Zheng was not eligible for asylum because she did not establish that her
application was filed within a year of entering the United States and that she was not eligible for
other forms of relief because her case lacked credibility. And the IJ further concluded that the
asylum application was frivolous under 8 C.F.R. § 208.3(c)(5).
On July 22, 2002 Zheng exercised her right to appeal the IJ’s decision to the Board of
Immigration Appeals (“BIA”). Three months later the BIA issued a written opinion that reversed
the IJ’s finding of frivolousness but affirmed all other findings. In doing so the BIA explicitly
1
“Sometime in 2000” is used here advisedly--the precise date of Zheng’s entry
was one of the primary issues in the IJ’s analysis of her asylum application and will be
discussed below.
2
adopted both the IJ’s credibility findings and his substantive finding as to timing of the asylum
application. Zheng now petitions for review of the BIA opinion. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition for the reasons set forth below.
This Court’s jurisdiction over final orders of removal generally calls for the review of
BIA decisions. But in cases such as this, where the BIA explicitly adopts the findings of the IJ in
relevant part, our review reaches down to the IJ decision itself (Abdulai v. Ashcroft, 239 F.3d
542, 549 n. 2 (3d Cir. 2001)). And the scope of that review is quite narrow. As to findings of
fact (which of course include determinations of credibility), we apply the substantial evidence
standard, which requires that we affirm the decision below unless a reasonable adjudicator would
be compelled to reach a contrary conclusion (8 U.S.C. § 1252(b)(4)(B); see also Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001)).
Absent extraordinary circumstances, an applicant for asylum must prove by clear and
convincing evidence that the application was filed within one year of entry into the United States
(8 U.S.C. § 1158(a)(2)(B); see also Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003)).
Here the IJ concluded that Zheng had failed to satisfy that burden. Because it is undisputed that
Zheng filed her application in April 2001, she thus had to establish that she entered into the
United States after April 2000.
To that end Zheng asserted before the IJ that she had entered through California on
September 12, 2000, and she introduced a witness to corroborate that assertion. But the IJ did
not credit that entry date for two reasons. For one thing, the IJ noted that an I-589 application
submitted and signed by Zheng indicated that she was living in Philadelphia in June 2000--a full
three months earlier than her supposed entry. Even though that earlier date was also less than a
3
year before the April 2001 application date, the point is that it expressly discredits Zheng’s
testimony about the asserted September 2000 entry--and it leaves unanswered the question of
how long before June 2000 she may have been in this country. As for the testimony of Zheng’s
witness, the IJ found it unpersuasive, in part because the witness said his only basis for his
testimony as to Zheng’s entry date was that Zheng had told him she entered on September 12 and
in part because he appeared “excessively nervous” and “equivocated with his responses.”
We have held in Tarrawally, 338 F.3d at 185, as other Circuits had done before us, that 8
U.S.C. § 1158(a)(3) divests us of jurisdiction to review the IJ’s conclusion that Zheng failed to
demonstrate by clear and convincing evidence that she filed her asylum application within one
year of her date of entry. That being the case, that portion of the IJ’s (and hence the BIA’s)
findings necessarily stands untouched.
As to her remaining claims, Zheng seeks relief on the premise that she suffered abuse in
the form of persecution and torture from the Chinese authorities in the past and that she has
reason to fear additional abuse upon her return. Specifically she claims that she and her family
were initially persecuted because of her relationship with the son of her village chief; that after
her father was arrested and she was forced to flee her home, she began to practice Falun Gong as
a means of coping with her difficulties; and that her practice of Falun Gong led to further abuses
at the hands of the Chinese authorities. In response to all of this mistreatment, Zheng ultimately
decided to flee the country altogether.
But that account was rejected by the IJ, who denied relief based essentially on a
4
conclusion that Zheng’s case lacked credibility. 2 To support the adverse credibility
determination, the IJ set forth numerous inconsistencies between Zheng’s oral testimony and
other documentary evidence presented in her case:
• Zheng testified that the village chief brought two policemen into her home and threatened
her with arrest to discourage her relationship with the chief’s son. She further testified
that as a result of that threat she ran away with the son to her aunt’s house in a different
village. After she ran away, her father was assertedly detained by the police and
eventually beaten and her mother assertedly asked her to come home. But a letter
submitted on Zheng’s behalf by her mother failed to mention any of those events, and the
IJ understandably viewed silence on such significant matters as discrediting Zheng’s
version.
• Zheng also testified that after police entered the family’s home because they heard Falun
Gong music being played, she escaped out of a window while her parents held the police
and her mother was arrested as a result. But both Zheng’s filed written statement and her
mother’s letter were at variance with that account. Moreover, during cross-examination
2
In its brief, the government argues that Zheng waived her right of appeal on all
issues other than the IJ’s finding as to her entry date--and particularly her claims related
to withholding of removal and the Convention--because she failed to raise them
specifically in her brief. But the IJ’s conclusions on those claims were based on the same
credibility determinations that formed the basis for denial of Zheng’s asylum application
on substantive grounds. That is, the IJ cited lack of credibility as the basis for finding that
Zheng had not established that it was more likely than not that she would be persecuted
on her return to China (withholding of removal), or that it was more likely than not that
she would face torture on her return to China (Convention), or that she had a well-
founded fear of persecution (asylum). So to the extent that this opinion considers whether
substantial evidence exists for the IJ’s credibility determinations, it reviews all of Zheng’s
claims.
5
Zheng attempted to explain the fact that her father was not arrested despite his role in
restraining the police by stating that he was not a member of Falun Gong -- an
explanation that the IJ also found difficult to believe.
• Zheng was not able to respond adequately to questions posed by the IJ regarding Falun
Gong music. She could not explain why it was different from other forms of music (such
that the police could readily identify it), nor could she identify the instruments that were
used to play the music.
• Although Zheng testified that she still practiced Falun Gong in the United States, she was
unable to supply the IJ with evidence beyond her testimony to support that claim. And
her testimony itself was problematic in that she claimed to practice in downtown
Philadelphia, but then gave the name of a street that is located in New York City.
On the basis of those numerous discrepancies and his general observations of Zheng’s
demeanor, the IJ concluded that she was “totally incredible and has submitted a case in chief
which also lacks credibility.” Again we can reverse that finding only if “any reasonable
adjudicator would be compelled to conclude to the contrary” (He Chun Chen v. Ashcroft, 376
F.3d 215, 222 (3d Cir. 2004)). Although we recognize that another adjudicator might perhaps
have decided to credit Zheng’s story based on the evidence presented, we find that such a
decision is not compelled. In short, because the IJ’s credibility determination was reasonably
grounded in the record, we uphold his findings.
We therefore DENY Zheng’s petition.
6