                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-2004

Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3920




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     NO. 03-3920
                                     ___________

                                 JEN CHING ZHENG
                                                            Petitioner
                                           v.

      JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES

                                                            Respondent

                                     ___________

                       On Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                                (BIA No. A77 309 637)
                                     ___________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 8, 2004

       BEFORE: SLOVITER, VAN ANTWERPEN and COW EN, Circuit Judges

                               (Filed : October 15, 2004)
                                     ___________

                                      OPINION
                                     ___________

VAN ANTWERPEN, Circuit Judge

      Ren Ching Zheng (“Petitioner”), also known as Jen Ching Zheng, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”) affirming the decision
of the Immigration Judge (“IJ”). The IJ denied Petitioner’s application for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”), finding that

Petitioner failed to meet the statutory prerequisites and lacked credibility. The IJ also

denied Petitioner’s application for withholding of removal under the Convention Against

Torture (“CAT”), finding that Petitioner failed to show that he is more likely than not to

be tortured if he returns to China. For the reasons set forth below, we deny the petition.

                     I. FACTUAL AND PROCEDURAL HISTORY

       Since we write only for the parties, we need only restate the relevant facts.

Petitioner, a native citizen of the People’s Republic of China (“China”), was born in and

lived in the Fuzhou province. According to his testimony, Petitioner’s wife gave birth to

their first son on August 9, 1989 and approximately one month later she was forced to

have an IUD implanted. In 1995, Petitioner and his wife fled to the Guanxi province of

China where his wife’s IUD was removed at their request. On January 8, 1996 he and his

wife had a second son, apparently without the knowledge of the government.

Approximately two years later, the family briefly returned to the Fuzhou province to visit

Petitioner’s parents. Shortly after they returned to the Guanxi province, Petitioner’s

father received two notices for the Petitioner and his wife which he forwarded to them.

The first notified Petitioner that he was being assessed a 10,000 RMB fine, presumably

for violating the one-birth policy. The second summoned his wife to report for

sterilization. Although Petitioner and his wife disregarded both notices, they were not



                                              2
bothered by officials after their return to the Guanxi province. Petitioner came to the

United States in 2000, allegedly to avoid paying the fine.

       The BIA took appellate jurisdiction over the decision of the IJ pursuant to 8 C.F.R.

§ 3.1(b)(3), (9), now 8 C.F.R. § 1003.1(b)(3), (9). This Court has jurisdiction over the

petition for review pursuant to 8 U.S.C. § 1252(a)(1).

                              II. STANDARD OF REVIEW

       This Court’s jurisdiction over final orders of removal generally leads us to review

the decision of the BIA. However, in cases in which the BIA merely adopts the IJ’s

opinion, the Court of Appeals will review the IJ’s decision. Gao v. Ashcroft, 299 F.3d

266, 271 (3d Cir. 2002).

       The scope of review is narrow. This Court applies substantial evidence review to

findings of fact. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this

standard, we are bound by the administrative findings of fact unless those findings would

compel a reasonable adjudicator to arrive at a contrary conclusion. 8 U.S.C. §

1252(b)(4)(B); see Abdille, 242 F.3d at 483. Additionally, because Congress delegated

substantial authority under the INA to the Attorney General, who then vested his authority

in the BIA, the BIA’s reasonable statutory interpretations are entitled to deference as

established in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-

43 (1984). Abdulrahman v. Ashcroft, 330 F.3d 587, 591 (3d Cir. 2003).

                                     III. DISCUSSION



                                             3
                           1. Adverse Credibility Determination

       Petitioner claims that the IJ erred in determining that he was not credible. We

subject the IJ’s adverse credibility finding to substantial evidence review which requires

us to “uphold the credibility determination of the BIA or IJ unless ‘any reasonable

adjudicator would be compelled to conclude to the contrary.’” Chen v. Ashcroft, 376 F.3d

215, 222 (3d Cir. 2004). The IJ based his findings on discrepancies between Petitioner’s

oral testimony and documentary evidence. Most notably, Petitioner testified that

following the birth of his son, he and his wife fled to the Guanxi province in 1995 where

they had another child and where he remained until fleeing to the United States in 2000.

In a separate affidavit, Petitioner stated that he and his wife ran away from their home in

2000 and that he went to the Guanxi province but did not know where his wife went.

Petitioner also testified that his second child was born in the Guanxi province, but on

other documentation stated that he was born in the Fuzhou province. Petitioner was

confronted with these discrepancies at his hearing, but was unable to explain them. These

discrepancies involve more than insignificant details; the underlying facts are central to

Petitioner’s claim that he fled China because of the country’s population control laws, and

raises questions about when and how the government responded to his violations of those

laws. For this reason, we find that the IJ’s credibility determination is reasonably

grounded in the record, and therefore we uphold his findings.

                  2. Eligibility for Asylum and Withholding of Removal


                                             4
       Even if Petitioner was found to be credible, we agree with the IJ that he is

ineligible for asylum and withholding of removal. To be eligible for asylum, Petitioner

has the burden of establishing that he meets the statutory requirements of refugee status.

Abdille, 242 F.3d at 482. A refugee is defined as one who cannot or will not return to his

or her country “because of persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A). A person is deemed persecuted on account of

political opinion if he or she “has been forced to abort a pregnancy or to undergo

involuntary sterilization, or who has been persecuted for failure or refusal to undergo such

a procedure or for other resistance to a coercive population control program.” 8 U.S.C. §

1101(a)(42)(B). Additionally, “a person 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 shall be deemed to have a well founded fear of persecution on account of

political opinion.” Id.

       Petitioner himself was not forced to abort a pregnancy or undergo involuntary

sterilization, and the IJ found that even if he was credible, he did not demonstrate that he

faced persecution. Nor did Petitioner have a fear of persecution as he and his family were

able to live in the Guanxi province free from government harassment, despite refusing to

report for sterilization or pay the assessed fine. Whether Petitioner faced “persecution” or

a “fear of persecution” is a question of fact, which is reviewed under the substantial


                                              5
evidence standard, and may only be reversed upon compelling evidence. Abdille, 242

F.3d at 483. We find nothing on the record that would compel us to make a different

finding.

       Although Petitioner does not meet the statutory prerequisites to be considered a

refugee, this Court has recognized, somewhat hesitantly, the BIA’s decision that extends

refugee protection to an applicant whose spouse suffered forced sterilization. Chen, 376

F.3d at 223 & n.2 (citing In Re C-Y-Z, 21 I. & N. Dec. 915, 918 (BIA 1997)). As the IJ

demonstrated, however, Petitioner’s wife never faced forced sterilization or an abortion,

even five years after she was given notice to report for sterilization. Nor did he and his

wife face any persecution when she did not report for sterilization. The IJ and BIA chose

not to extend refugee protection to a petitioner whose spouse is still located in the alleged

persecuting country, has not yet been forced to abort a pregnancy or undergo sterilization,

and who may or may not have a fear that someday she will be forced to do so. The BIA is

entitled to Chevron deference when construing the statute it administers. INS v. Aguirre-

Aguirre, 526 U.S. 415, 425 (1999). Under Chevron, this Court must ask whether “the

statute is silent or ambiguous with respect to the specific issue” and if so “whether the

agency’s answer is based on a permissible construction of the statute.” 467 U.S. at 842.

The statute does not specifically mention spousal protection and we find that the

extension of the statute may reasonably be limited to applicants whose spouses have

already been subjected to population control procedures.


                                              6
       Even if Petitioner had met the statutory requirements, his ability to avoid

government interference by moving to another part of the country would have necessarily

influenced the IJ’s discretionary determination. “[A]n immigration judge, in the exercise

of his or her discretion, shall deny the asylum application of an alien found to be a

refugee on the basis of past persecution if . . . [t]he applicant could avoid future

persecution by relocating to another part of the applicant's country of nationality.” 8

C.F.R. § 208.13(b)(1)(i). Petitioner’s ability to settle peacefully in another part of his

country would have compelled the IJ to refuse to exercise his discretion in favor of

asylum.

       The IJ also found that Petitioner did not meet the requirements for withholding of

removal under the INA. Withholding of removal has a similar, albeit stricter, statutory

prerequisite that makes it available only “if the Attorney General decides that the alien's

life or 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). An applicant who fails to meet the requirements warranting asylum also

fails to meet the standards for withholding of removal under the INA. Lukwago v.

Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Because Petitioner did not meet the

requirements for asylum, we find that he is not eligible for withholding of removal under

the INA.

              3.      Eligibility for Withholding of Removal under the CAT


                                              7
       The Petitioner further claims that the IJ erred in denying him relief under the CAT.

“The burden of proof is on the applicant for withholding of removal under this paragraph

to establish that it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Petitioner has offered no

testimony whatsoever that he would face torture upon his return to China. Although

Petitioner has suggested that he may have to pay a fine upon his return, he has offered no

testimonial or documentary evidence demonstrating that it is more likely than not that he

will be tortured upon his return. We therefore sustain the findings of the IJ in this regard

as well.

       For the foregoing reasons we deny the petition.




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