IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 18, 2009
No. 09-60083 Charles R. Fulbruge III
Clerk
QIAN ZHAO,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 609 281
Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Qian Zhao petitions for review of a Board of Immigration Appeals (“BIA”)
denial of his application for asylum and withholding of removal. We DENY the
petition.
FACTS
Zhao is a native and citizen of China. He is of East Turkistani ethnicity.
In about 1993, Zhao received a passport from the Chinese government and
entered the United States on a J-1 exchange visitor visa. A Chinese charity
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-60083
group paid for his education in America. He graduated from the University of
Houston with a Master’s degree in Computer Science. He visited China for two
weeks in 2002, but it is not clear what documents he used to reenter the United
States.
In March 2008, the Department of Homeland Security issued a notice to
appear charging Zhao as removable because he did not possess a valid entry
document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Zhao admitted that he was not a
citizen or national of the United States, was instead a native of China, and was
an immigrant without a valid entry document. Zhao filed an application for
asylum, for withholding of removal, and for relief under the Convention Against
Torture (“CAT”).
The Immigration Judge (“IJ”) denied relief and ordered Zhao removed to
China. Zhao was found ineligible for asylum because his application was not
timely and he failed to prove changed or extraordinary circumstances in China
to justify the late filing. The IJ denied Zhao’s application for withholding of
removal because his testimony was not credible due to repeated inconsistencies.
The inconsistencies that concerned the IJ and which the BIA also
mentioned included Zhao’s testimony that he was baptized into a Baptist church
in Louisiana in 1994. In his asylum application, though, he stated that he was
Muslim. Further, Zhao testified that he was one of 5,000 participants in an
independence demonstration in East Turkistan in 1989 which was quashed by
100,000 Chinese troops. The BIA agreed with the IJ that the absence of any
news reports of the protest created a need for some other kind of corroboration.
Zhao claimed the Chinese government did not allow reporters to cover the
demonstration, but the IJ did not find the point persuasive.
The BIA agreed that additional doubts arose from Zhao’s testimony that
he wrote numerous articles criticizing the Chinese government and had
published them on a website operated by the Chinese Labor Watch. Zhao also
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stated he had been the webmaster for the website. The problem was that
nothing on the website or in the material Zhao provided supported his
testimony. Zhao did provide a letter from the director of the Labor Watch. It
stated only that Zhao had volunteered over 200 hours of his time and did not
address whether he had been a webmaster or had written any of the articles
published on the website.
The IJ mentioned other difficulties with Zhao’s testimony, but none of
them were mentioned in the BIA opinion. The BIA affirmed the IJ on all issues.
Zhao petitions this court for review.
DISCUSSION
Zhao’s petition for review is presented pro se. He lists thirteen issues,
many without any substantive discussion in his petition. To address his issues
in a reasonable fashion, we discuss them in terms of the three forms of relief that
he seeks – asylum, withholding of removal, and relief under the CAT.
The BIA decision, issued by a single member of the Board, discussed
Zhao’s issues in some detail. Even so, on some points the BIA incorporated by
reference the IJ’s reasoning and then stated its agreement. The decision we
review is that of the BIA, except to the extent it contains no independent
explanation and instead depended upon the IJ’s analysis. Wang v. Holder, 569
F.3d 531, 536 (5th Cir. 2009). We look to the IJ’s explanation only as necessary.
Zhao argues that the regulation providing for single-member BIA decisions
did not apply to this appeal. By regulation, the appeal from an IJ must be
decided by a single-member unless it meets one of six criteria. See 8 C.F.R. §
1003.1(e)(6). These include such matters as settling inconsistencies among
rulings by various IJs, the presence of an issue of national importance, and the
need to establish a precedent. Id. Zhao does not present any argument as to
why his case had to be referred to a three-member panel. We do not explore the
issue further and find no error in this single-member disposition.
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No. 09-60083
A. Application for Asylum
An alien must file an application for asylum within one year of arriving in
the United States. 8 U.S.C. § 1158(a)(2)(B). An untimely application may be
excused if the alien demonstrates “either the existence of changed circumstances
which materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay.” Id. § 1158(a)(2)(D). Zhao’s application for
asylum was filed well over a year after his entry. He argues, though, that
“systematic human rights abuses and genocides are happening now in the
formerly independent country” of East Turkistan.
On a petition for review of a BIA decision, we have no jurisdiction to
reconsider the BIA’s assessment of the facts in deciding that there was no
change in circumstances excusing the delay in filing for asylum, but may only
review constitutional claims and questions of law. Nakimbugwe v. Gonzales, 475
F.3d 281, 284 (5th Cir. 2007); 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). The BIA’s
decision was based on a factual assessment of whether conditions had changed
in China. We lack jurisdiction on this issue.
B. Withholding of Removal
Even though asylum was denied, Zhao would be entitled to withholding
of removal – and therefore not to be returned to China when deported – if he had
shown that his “life and freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Withholding is mandatory if Zhao
demonstrated in the removal proceedings that there is a “clear probability” of
persecution as a result of one of the stated reasons upon his return to China.
Kane v. Holder, 581 F.3d 231, 238 (5th Cir. 2009). The “clear probability”
standard has been interpreted to mean that “it is more likely than not that his
life or freedom would be threatened by persecution on account of race, religion,
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No. 09-60083
nationality, membership in a particular social group, or political opinion.” Id.
at 238; see also 8 C.F.R. § 1208.16(b)(1)(iii).
We have jurisdiction to review a final order of removal, including an order
refusing to withhold removal. 8 U.S.C. § 1252(a), (b). Zhao’s petition requires
us to determine if there is substantial evidence to support the BIA’s factual
conclusion that he is ineligible for withholding of removal. Efe v. Ashcroft, 293
F.3d 899, 906 (5th Cir. 2002). The “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary . . . .” 8 U.S.C. § 1252(b)(4)(B). The applicant’s testimony alone may be
sufficient if the trier of fact finds his testimony credible. See 8 U.S.C. §
1231(b)(3)(C) (evaluating the evidence on withholding of removal should be
conducted in the manner described in 8 U.S.C. § 1158(b)(1)(B)(ii) and (iii), which
applies to asylum determinations).
In our first precedential decision applying these judicial review limits in
Sections 1158 and 1252, which became effective in 2005, we adopted a test from
a sister circuit: we will sustain an IJ’s determination that a witness was not
credible “unless, from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility ruling.” Wang,
569 F.3d at 538 (quoting Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)).
The IJ discussed a number of inconsistencies in Zhao’s testimony and
applications. Since Zhao was found not to be credible, he needed to present
corroborating evidence to support withholding of removal. See 8 U.S.C. §§
1158(b)(1)(B)(ii), (iii) & 1231(b)(3)(C). Insufficient corroboration was introduced.
The BIA agreed that Zhao was not credible. We accept that finding
because the record does not make it plain that “no reasonable fact-finder could
make such an adverse credibility ruling.” Wang, 569 F.3d at 167. Once that
credibility decision is accepted, the record also does not compel a finding that,
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No. 09-60083
more likely than not, Zhao would be persecuted if returned to China. See Efe,
293 F.3d at 906.
C. Convention Against Torture
The Convention Against Torture was adopted by the United Nations in
1984 and ratified by the United States Senate in 1990. 136 C ONG. R EC. S17486-
92 (daily ed. Oct. 27, 1990) (ratification of the CAT with reservations). In 1998,
legislation was passed that required implementing regulations to be adopted
within 120 days. See Pub. L. No. 105-277, § 2242(b); see also Tamara-Gomez v.
Gonzales, 447 F.3d 343, 347 n.3 (5th Cir. 2006). The resulting regulations place
the burden on an applicant under the CAT to prove that “it is more likely than
not” that he will be tortured in the country to which it is proposed that he be
returned. 8 C.F.R. § 1208.16(c)(2). There is no need to show that the torture
would be due to one of the five reasons for withholding of removal that apply to
persecution as discussed in the preceding section. Id.
The IJ found that Zhao had failed to show he would be tortured if returned
to China. In a one-sentence agreement, the BIA said Zhao had presented no
“persuasive arguments on appeal” to justify reversal. We find no error.
Zhao has pending motions. As this case did not present exceptional
circumstances, we found no reason to grant the motion to appoint counsel. The
motion is DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Zhao’s motions to supplement the record are also DENIED. We may
consider on a petition for review only the evidence that was before the BIA, not
new evidence first presented here. 8 U.S.C. § 1252(b)(4)(A).
The petition for review is DENIED.
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