                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1682




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 08-1682
                                       ___________

                                     QING ZHENG,
                                         Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                         Petition for Review of an Order of the
                             Board of Immigration Appeals
                               (Agency No. A96-021-273)
                 Immigration Judge: Honorable Richard Randall Ozmun
                    _______________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 24, 2008

     Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                                 (Filed: January 14, 2009)
                                         _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM

       Qing Zheng petitions for review of the Board of Immigration Appeals’ (“BIA”)

final order of removal. For the following reasons, we will grant his petition.
                                             I.

        Zheng, a native and citizen of China, arrived in the United States in 2003 when he

was seventeen years of age. He was taken into custody and charged as removable on the

grounds that he did not possess valid entry documents and, as a minor with no means of

support, was likely to become a public charge. Zheng concedes removability, but seeks

asylum, withholding of removal and relief under the Convention Against Torture

(“CAT”) on the grounds that he fears persecution and torture for his practice of Falun

Gong.

        Before the IJ, Zheng testified that he had attended two Falun Gong meetings in

2002. At the first of these meetings, held at a Mr. Zhou’s house, he gave Zhou his name,

address and telephone number. At the second of these meetings, Zhou provided basic

instruction and distributed Falun Gong videotapes and other training materials. Soon

thereafter, Zheng learned that Chinese authorities raided Zhou’s home, arrested him and

beat him “almost to death.” Authorities also confiscated Zhou’s booklet containing all

the members’ names and addresses. Zheng testified that he learned the foregoing from a

Mr. Chang, another participant in the meetings, who told Zheng to be “extra careful.”

Zheng also learned that another participant in the meetings, a Sha Lin, also had been

arrested and beaten. When Zheng told his parents, they told him it was risky to stay in

China and made arrangements for him to go abroad. His other testimony is discussed

where relevant below.



                                             2
       The IJ, in a written decision, denied Zheng’s claims. With regard to Zheng’s

asylum claim, the IJ concluded both that Zheng was ineligible for asylum and that, even if

Zheng were eligible, he would deny the asylum claim in the exercise of his discretion.

The BIA affirmed without opinion.1

                                             II.

       The IJ concluded that Zheng was ineligible for asylum because (1) he found

Zheng’s testimony implausible (but not otherwise incredible), (2) Zheng failed to offer

certain corroborating evidence, (3) Zheng produced no evidence that Chinese authorities

are searching for him, and (4) Zheng’s family has remained without harm in China. His

decision makes clear that he based his ruling on all of these circumstances, and he set

forth none of them as a discrete reason for denying Zheng’s claims. The IJ also


 1
  We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. §
1252(a)(1). Because the BIA affirmed the IJ’s order without opinion, we review the
decision of the IJ. See Jishiashvili v. Att’y Gen., 402 F.3d 386, 391-92 (3d Cir. 2005).
We review IJs’ factual findings, including credibility determinations, for substantial
evidence and must uphold them unless ‘“any reasonable adjudicator would be compelled
to conclude to the contrary.’” Id. at 392 (quoting 8 U.S.C. § 1252(b)(4)(B)).
Nevertheless, such “‘deference is not due where findings and conclusions are based on
inferences or presumptions that are not reasonably grounded in the record.’” Id. at 393
(citations omitted). Aliens are eligible for asylum if they show, inter alia, a well-founded
fear of persecution on a protected ground. See Shardar v. Att’y Gen., 503 F.3d 308, 312
(3d Cir. 2007). Even if an alien is eligible for asylum, an IJ may deny asylum in the
exercise of his or her discretion. See Dia v. Ashcroft, 353 F.3d 228, 234 n.1 (3d Cir.
2003). We review the IJ’s discretionary denial of asylum for abuse of that discretion.
See 8 U.S.C. § 1252(b)(4)(D); Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004).
On appeal, Zheng argues only that the denial of his asylum claim was in error and does
not mention his claims for withholding of removal or relief under CAT, so those two
latter claims are waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).

                                             3
concluded that a discretionary grant of asylum was not warranted in part for these same

reasons. After reviewing the record, we believe that the first and last of these reasons are

not supported by substantial evidence. Accordingly, we must remand for the BIA to

reconsider Zheng’s claims. See Liu v. Ashcroft, 372 F.3d 529, 534 (3d Cir. 2004)

(remanding where Court’s ruling “fundamentally upsets the balance of facts and evidence

upon which [the] agency’s decision is based”).

       The IJ relied principally on what he characterized as the implausible nature of

Zheng’s testimony, and cited four respects in which he found that testimony implausible.

Each of them lacks adequate support in the record. First, the IJ cited Zheng’s “stated

minimal involvement” with Falun Gong since coming to this country and concluded that

such involvement

       is simply not consistent with what one would expect of an individual who
       had given up everything—his family, country, and way of life in order to be
       able to practice Falun Gong—and then not to do so. Clearly, the practice of
       Falun Gong within the Chinese community in this country is public, legal,
       and not uncommon—yet the respondent claims that despite his best efforts,
       he has been unable to associate with others in the practice of Falun Gong.
       This Court finds the Respondent’s claim to be highly implausible and
       improbable.

(IJ Decision at 7-8; A.43-44.) This conclusion mischaracterizes Zheng’s claim. His

claim is not merely that he left China because he wanted to freely practice Falun Gong.

Instead, he claims that he left China out of fear that Chinese authorities, who confiscated

a Falun Gong membership booklet with his personal information and arrested and beat

two other members of the group with which he practiced, would arrest and beat him as

                                             4
well. Indeed, the IJ did not even mention Zheng’s testimony about the confiscation of the

membership book containing his name and address, which would appear highly relevant

to his fear of future persecution. See Shardar, 503 F.3d at 317 (remanding where BIA

ignored relevant evidence and misconstrued the nature of petitioner’s claim). Moreover,

the IJ’s assumption that Zheng should have been able to “associate with others in the

practice of Falun Gong” lacks record support. Zheng lives in Pittsburgh, and he testified

to his efforts to locate other Falun Gong practitioners in that community. The record is

devoid of any evidence regarding the “public” and “not uncommon” practice of Falun

Gong within the Chinese community in Pittsburgh, or anywhere else in the United States

for that matter, and provides no support for the IJ’s assumption that Zheng should have

been able to locate other local practitioners of Falun Gong.

       Second, the IJ found implausible Zheng’s testimony regarding his aunt and his

former boss, both of whom Zheng testified he has lived with in the United States. Zheng

testified that he told both of them that he practices Falun Gong but that he practices alone

in his room rather than in front of them because he would feel “odd, weird” doing so.

(A.99.) From this, the IJ concluded:

       [T]his Court finds as implausible the Respondent’s testimony that the people
       he has lived with, his aunt and former boss, have never observed him
       practice Falun Gong. The Respondent’s provided rationale was that he
       considered it “inappropriate” to practice Falun Gong in their presence at
       their home. Yet, surely he must have made them aware of the reason for his
       asserted fleeing from China, as well as the basis of his asylum claim—that
       being to practice Falun Gong—and to avoid being persecuted for doing so.



                                             5
        To find as “inappropriate” the practice of a discipline for which one has
       completely altered his life, quite simply, defies logic.

(IJ Decision at 8; A.44.) Once again, the IJ mischaracterized Zheng’s testimony. Zheng

never testified that he thought it “inappropriate” to practice in their homes (indeed, he

never used that word). Instead, he testified that he had told his aunt and former boss that

he practices Falun Gong, but that he felt “odd, weird” practicing in front of them as

opposed to privately in his room. There is nothing inherently implausible in someone

feeling “odd, weird” about actually practicing rituals in front of relative strangers, and

there is no record support for the IJ’s apparent assumption that Falun Gong cannot be

practiced privately in one’s room.

       Third, the IJ had “great difficulty with the Respondent’s testimony that he doesn’t

know how the arrangements were made for him to flee China and travel to the United

States. He testified that he didn’t know if a ‘snakehead’ was used.” (IJ Decision at 8;

A.44.) Zheng testified that his parents made arrangements for his transport to the United

States and that, although he did not know exactly how the arrangements were made, he

followed their instructions. (A.88, 107.) Once again, it is not inherently implausible that

the parents of a seventeen-year-old boy in fear for his safety might make arrangements for

him to leave the country and that he would follow their instructions without knowing

precisely how his parents had made those arrangements.

       Finally, the IJ faulted Zheng’s “basic and rudimentary” knowledge of Falun Gong.

The IJ wrote that Zheng “knew the name of the founder of Falun Gong, and a few of the

                                              6
‘basics’ of the discipline. He claimed that his lack of more knowledge of the discipline

was a result of his destruction of the basic materials provided him and his inability to

associate with other practioners [sic] in this country. This court has already indicated the

implausibility of the latter assertion.” (IJ Decision at 8; A.44.) Applicants for asylum,

however, need not display “the knowledge of a seminarian.” Mezvrishvili v. Att’y Gen.,

467 F.3d 1292, 1296 (11th Cir. 2006). Instead, basic knowledge of the tenets and

practice of Falun Gong is sufficient. See Iao v. Gonzales, 400 F.3d 530, 532, 534 (7th

Cir. 2005) (granting petition for review where IJ improperly demanded detailed

knowledge of Falun Gong). Indeed, the IJ never specified what more about Falun Gong

he believed that Zheng should know.

       In addition to finding Zheng’s claim implausible for these four reasons, the IJ

believed that his claim was undercut because his “family remains in China unharmed.”

(IJ Decision at 9; A.45.) A petitioner’s fear of future persecution may be diminished

where family members remain behind without harm, but only if those family members are

similarly-situated and “there is no individualized showing that petitioner would be singled

out for persecution.” Lie, 396 F.3d at 537. As explained above, Zheng testified why he

believed he would be singled out for persecution (i.e., the confiscation of a Falun Gong

membership booklet containing his name and address), but the IJ ignored that testimony.

Moreover, Zheng testified that authorities “did not create any trouble for my parents,

actually practicing Falun Gong is my personal thing, it has nothing to do with my



                                              7
parents.” (A.107.) The IJ ignored this testimony as well, and there is no record support

for his apparent assumption that Zheng’s parents would face mistreatment for Zheng’s

own practice of Falun Gong.

       For these reasons, the IJ’s conclusion that Zheng failed to prove his eligibility for

asylum lacks record support. There remains the IJ’s ruling that, even if Zheng were

eligible for asylum, he would deny that claim in the exercise of his discretion. That

decision too was informed by the foregoing considerations. (IJ Decision at 9-10; A.45-

46) (evaluating discretion “by considering the entire context of this case” and noting once

more that Zheng “has been found to lack veracity in his in-court testimony”). Thus, for

the reasons discussed above, we conclude that the IJ abused his discretion in denying

asylum on these grounds. See Kholyavskiy v. Mukasey, 540 F.3d 555, 572 n.18 (7th Cir.

2008) (remanding where IJ’s discretionary denial of asylum was based on same errors

underlying his erroneous ruling that petitioner was ineligible for asylum).2

       Accordingly, we will grant Zheng’s petition for review and remand to the BIA for

reconsideration of his claims in light of this opinion.




 2
  The Government argues that Zheng failed to exhaust this issue because he did not
challenge the IJ’s exercise of discretion before the BIA. Zheng, however, argued before
the BIA that the IJ’s implausibility finding lacks record support and that the IJ failed to
acknowledge the actual basis of his claim. As explained above, the IJ expressly based his
discretionary denial of asylum in part on those same grounds, so we believe that Zheng
adequately placed this issue before the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 121 (3d
Cir. 2008) (describing our “liberal exhaustion policy”) (citations omitted).

                                              8
