Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-13-2006
Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1375
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1375
XIANG ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,*
Respondent
*Caption Amended Pursuant to Rule 43(c), F.R.A.P.
On Petition for Review of an Order of
The Board of Immigration Appeals
(No. A95-100-926)
Submitted Under Third Circuit LAR 34.1(a)
March 7, 2006
Before: RENDELL and AMBRO, Circuit Judges,
SHAPIRO,** District Judge
(Opinion filed: March 13, 2006)
**
Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
OPINION
AMBRO, Circuit Judge
Xiang Zheng petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) that affirmed an oral decision of an Immigration Judge (“IJ”) denying
his application for asylum and withholding of removal and his request for relief under the
Convention Against Torture (“CAT”). The IJ concluded that Zheng had not offered a
credible account of adverse treatment that would constitute persecution within the
meaning of the Immigration and Nationality Act (“INA”), and therefore concluded that he
failed to establish eligibility for asylum and, by extension, withholding of removal under
the INA or relief under the CAT. We conclude that the IJ’s oral decision is supported by
substantial evidence, and therefore deny the petition for review.
I.
Because we write for the parties, we only briefly recount the relevant facts. Zheng
is a native and citizen of the People’s Republic of China. He entered the United States
through Puerto Rico on September 4, 2003, using a fraudulent Canadian passport. He
was detained and, in two interviews with immigration officers, stated that he fled from
China after Chinese family planning officers arrested him for cohabiting with his
girlfriend before marriage. Zheng was placed in removal proceedings and filed an
application for asylum and withholding of removal on February 19, 2004.
2
Zheng’s application contained very few details of what allegedly happened to him
in China. In a short, one-paragraph statement attached to the application, Zheng alleged
that he and his girlfriend began living together in 2002, and were arrested by family
planning officials in March 2003 because China’s family planning laws forbid
cohabitation before marriage. The officials allegedly detained Zheng and his girlfriend at
a “family planning office,” and allowed him to leave once a friend posted bail. As a
condition of his release, Zheng was ordered to report to the office every day, but he failed
to do so. Because of this, family planning officers allegedly went to his parents’ home
and threatened them. Zheng also stated that he lost his job as a result of his detention. He
asserted that, if returned to China, he would be arrested “because [he] violated [the]
family planning policy and left China illegally.”
On the same day he filed his asylum application, Zheng appeared before an IJ and
conceded removability. Zheng was the only witness at the hearing and, through his
testimony, attempted to establish additional details regarding his claim. He testified, for
example, that family planning officers hit him in the face while he was detained, and that
he did not know what became of his girlfriend. He also stated that, upon being released,
he hid with friends and relatives for several months before traveling to Singapore, then to
France, and then to several Carribean islands (including Martinique, the Dominican
Republic, St. Kitts, and Nevis) before finally arriving in Puerto Rico. Upon questioning,
he testified that he did not apply for asylum in any of these countries because he did not
think of it and, in any event, he had family in the United States (including a brother and
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uncle, neither of whom testified at the hearing) and therefore wanted to come here.
Zheng also stated that he worked in China as a “technician” at a private corporation, but
after his arrest his supervisor informed him that the government had taken his personnel
file and therefore he could no longer work at the company.
At the close of the hearing, the IJ issued an oral decision denying Zheng’s
application for asylum and withholding of removal and his request for relief under the
CAT. The IJ concluded that Zheng’s claim was not credible for a number of reasons.
First, the IJ found it highly doubtful that, if Zheng was truly in need of protection from
persecution, he would pass through Singapore, France, and four Carribean islands without
seeking asylum. Second, the IJ found that the U.S. State Department’s Country Report
for China called into question Zheng’s testimony, insofar as the Country Report
established that (1) there was no provision in China’s family planning laws that would
allow the arrest and detention of an unmarried, cohabiting couple with no children, and
(2) Chinese citizens who were labeled “bad elements” by the government were not
prohibited from working in private sector jobs, which cast doubt on Zheng’s testimony
that his private employer fired him because he was arrested. Third, the IJ noted that
Zheng never mentioned the only allegation of violence — the beating by family planning
officials while he was detained — during his initial interviews with immigration officers
upon his arrival in Puerto Rico, and only brought it up during his testimony before the IJ.
This, the IJ found, rendered his story regarding the beating not credible. Finally, the IJ
noted that, even if Zheng’s allegations were true, they would not amount to persecution
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within the meaning of the INA.
Zheng appealed to the BIA, which summarily affirmed the IJ without opinion on
January 26, 2005. He then filed a timely petition for review by our Court.
II.
We have jurisdiction over Zheng’s petition under 8 U.S.C. § 1252(b)(2) and (d).
Where, as here, the BIA summarily affirms the IJ’s oral decision and adopts that decision
as the final agency action, we review the IJ’s decision directly. See Xie v. Ashcroft, 359
F.3d 239, 242 (3d Cir. 2004). The IJ’s factual findings, including her determination of
whether an alien was subject to persecution or has a well-founded fear of persecution, are
reviewed under a substantial evidence standard. Shardar v. Ashcroft, 382 F.3d 318, 323
(3d Cir. 2004). The IJ’s credibility determinations are also reviewed under this standard.
Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005). In conducting this analysis we
consider the record as a whole and will reverse only if “‘[a] reasonable adjudicator would
be compelled to conclude to the contrary.’” Shardar, 382 F.3d at 323 (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
III.
We conclude that substantial evidence supports the IJ’s denial of Zheng’s request
for asylum. First, the IJ correctly pointed to significant discrepancies in the record that
contradicted, or at least called into question, Zheng’s testimony. We have stated that
“[a]dverse credibility determinations based on speculation or conjecture, rather than on
evidence in the record, are reversible.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
5
2002). Although “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,” we uphold credibility determinations that involve the “heart of the
asylum claim” and are supported by substantial evidence such that a reasonable
adjudicator would not be compelled to reach a contrary result. Id. (citations and internal
quotation marks omitted).
The adverse credibility findings at issue here are neither speculative nor related to
minor inconsistencies. Zheng stated, for example, that he was forced to flee from China
to escape persecution, but then traveled through several countries where he could have
sought asylum or other protection before arriving in the United States. The IJ concluded,
and we agree, that it appears from these facts more likely that Zheng traveled to the
United States to join his family members already living here, rather than to escape
legitimate persecution. Zheng also testified that he was arrested in China because it was
unlawful to live with his girlfriend before marriage, but the relevant Country Report
relates no incidents of such arrests, and its description of China’s family planning laws
does not state that family planning officials are authorized to arrest or detain unmarried
couples who have no children. As for the only act of violence that Zheng allegedly
suffered, we agree with the IJ that Zheng’s failure to mention it to immigration authorities
during his initial interviews, and his failure to mention it in his asylum application, cast
doubt on the credibility of his story. See Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.
2005) (per curiam) (holding that the omission of critical details regarding an alien’s
6
persecution claim from an asylum application may support an adverse credibility finding).
Because these inconsistencies could lead a reasonable adjudicator to reject the veracity of
Zheng’s claims, we will not overturn the IJ’s credibility determinations.
Second, we note that, even if all of Zheng’s allegations were true, they would not
rise to the level of persecution. To succeed in establishing eligibility for asylum or
withholding of removal, Zheng must first demonstrate that he has been subject to past
persecution or has a well-founded fear of future persecution based on his race, religion,
nationality, membership in a particular social group, or political opinion. See, e.g., Li v.
Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(a)). We
have defined persecution as “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Id. at 167 (citation
and internal quotation marks omitted). Here, even if all of Zheng’s allegations are true,
he has not alleged adverse treatment that rises to this level. It is not within the power or
competence of this Court to question China’s law regarding who can live with whom, and
certainly a single incident of arrest for violating that law, even if the arrest resulted in
detention (during which the person was hit in the face) and the loss of a job, is not
“persecution” sufficient to render the individual eligible for asylum.1 We therefore
1
We note that, although acts of violence committed by government officials are
always troubling, courts are generally reluctant to find that a single incident of violence
that did not cause lasting harm to the victim constitutes persecution. See, e.g., Quevedo
v. Ashcroft, 336 F.3d 39, 45 (1st Cir. 2003) (holding that a single beating at the hands of
soldiers, “while undoubtedly terrifying, does not rise to the level of severity necessary for
a court of appeals to set aside the [IJ’s] conclusion” that the petitioner was not
7
perceive no error in the IJ’s conclusion that Zheng has not been persecuted within the
meaning of the INA.
Because we conclude that Zheng has not satisfied his burden of proving past
persecution or a well-founded fear of future persecution sufficient to qualify for asylum,
we necessarily conclude that he has not satisfied the more stringent requirements for
withholding of removal. See Paripovic v. Gonzales, 418 F.3d 240, 246 (3d Cir. 2005).
As for his CAT claim, we disagree with the IJ that Zheng’s failure to prove persecution
necessarily means he also failed to establish eligibility for relief under the CAT. As the
Second Circuit Court has held, an applicant’s CAT claim is not “necessarily precluded
because he had failed to carry his burden of proof with respect to his asylum claim.
Because the CAT inquiry is independent of the asylum analysis, . . . the BIA’s decision
with respect to an alien’s claims for asylum and withholding of removal pursuant to the
INA should never, in itself, be determinative of the alien’s CAT claim.” Ramsameachire
v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004); see Kamalthas v. INS, 251 F.3d 1279,
persecuted); Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995) (concluding that a single
incident of being “hit and kicked while . . . briefly detained in a police station” did not
constitute persecution).
As for the loss of Zheng’s job, we have held that imposition of a “severe economic
disadvantage,” including loss of one’s job, may be persecution. See Li, 400 F.3d at 167.
We noted in Li, however, that such an economic disadvantage must be “deliberately
imposed as a form of punishment,” and, in finding that Li had suffered such persecution,
we placed great reliance on the fact that he had been fined the equivalent of 20 months’
salary, was fired from his government job, and was “effectively blacklisted from any
government employment [such] that it would be impossible for him to find another job.”
Id. at 167-69. There is no evidence that Zheng was subjected to similar treatment.
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1283 (9th Cir. 2001) (“[C]laims for relief under the Convention [Against Torture] are
analytically separate from claims for asylum under INA § 208 and for withholding of
removal under INA § 241(b)(3). . . . [A] claim under the Convention is not merely a
subset of claims for either asylum or withholding of removal.”). Indeed, “an alien’s CAT
claim may be established using different evidence and theories than the alien’s INA
claims, [and] [t]he CAT claim therefore must always be considered independently of the
resolution of the alien’s claims under the INA.” Ramsameachire, 357 F.3d at 185.
Nonetheless, we conclude that the IJ’s error is harmless in this case. Zheng has
not proffered any evidence establishing a likelihood that he will suffer torture if returned
to China. He has therefore failed to satisfy his burden of proof under the CAT.
* * * * *
For the foregoing reasons, the petition for review is denied.
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