                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3334




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-3334
                                       ___________

                                     ZHENG JIN XIONG,
                                                            Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES

                       ____________________________________

                        On Petition for Review of Order of the
                             Board of Immigration Appeals
                               (Agency No. 79-682-302)
                  Immigration Judge: Honorable Charles M. Honeyman
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 30, 2008
            Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                               (Opinion filed: July 31, 2008)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       The petitioner, a citizen of the People’s Republic of China, seeks review of a final

order from the Board of Immigration Appeals (“BIA”). For the following reasons, we

will deny the petition for review.
                                             I.

       The petitioner, Zheng Jin Xiong, entered the United States on February 25, 2002,

and was served with a notice of appear on the same day. The petitioner conceded

removability, but did not apply for asylum and related relief until April 17, 2003. He

originally claimed that he was eligible for asylum because he was persecuted in China due

to his practice of Falun Gong, but at his January 2006 removal proceedings, he sought to

proceed on a claim for withholding of removal based on his assertion that he would be

sterilized if he was forced to return to China. He testified that he was married in May

2004 to a woman who became a naturalized U.S. citizen in July 2005. The petitioner and

his wife became parents of a daughter in January 2005, and the petitioner’s wife was

pregnant with their second child during the removal proceedings.

       At the removal proceedings, the Immigration Judge (“IJ”) pretermitted and denied

the asylum application as untimely, and denied the petitioner’s claims for withholding of

removal under 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture

(“CAT”).1 Based on U.S. State Department reports submitted by the government, the IJ

acknowledged that coercive sterilization occurs in China despite the Chinese

government’s statements to the contrary. The IJ also noted that although there was no




   1
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in
the United States by the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C.
§ 1231.

                                             2
national policy regarding foreign-born children, the 2004 country profile stated that

“unless one of the parents . . . has residence rights in another country, a family with U.S.

born . . . children receives no special treatment.” The IJ then reasoned that because the

petitioner’s wife is a U.S. citizen, the petitioner and his family would receive some type

of special treatment under China’s family planning laws. As the petitioner did not present

any rebuttal evidence, the IJ held that he did not meet his burden of proving that he faced

a clear probability of persecution as is required for withholding of removal. See INS v.

Stevic, 467 U.S. 407, 430 (1984). The IJ also denied the petitioner’s CAT claim based on

the probability of sterilization, as well as his CAT claim based on the assertion that he

would be tortured because he left China illegally. See 8 C.F.R. § 208.16(c)(2).

       On July 6, 2007, the BIA denied the petitioner’s appeal and motion for remand.

The BIA agreed with the IJ that the petitioner did not meet his burden of proof for

withholding of removal because he did not rebut the evidence in the record that he would

receive special treatment under the family planning laws due to his wife’s U.S.

citizenship. The BIA also agreed with the IJ that the petitioner did not demonstrate that

he was eligible for relief under the CAT.

       Through counsel, the petitioner filed a petition for review in this Court seeking

review only of the determinations that he was ineligible for withholding of removal and

relief under the CAT.




                                              3
                                             II.

       The petitioner seeks review of the BIA’s order dismissing his appeal from the IJ’s

denial of his claims for withholding of removal and relief under the CAT. We have

jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v.

Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). In this case, we review the decisions of both

the BIA and IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).

       To be eligible for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3), an

applicant must demonstrate that it is more likely than not that he will be persecuted if he

is returned to his home country. Stevic, 467 U.S. at 429-30. Similarly, the CAT requires

an applicant to show, through objective evidence, that it is more likely than not that he

would be tortured if returned to his home country. 8 C.F.R. § 208.16(c)(4).

       Here, substantial evidence supports the finding that the petitioner failed to

demonstrate that it was more likely than not that he would be persecuted and/or tortured

upon his return to China. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.

2007) (stating that factual findings are reviewed for substantial evidence and legal

conclusions are reviewed de novo). At the removal proceedings, the government

introduced the only evidence regarding the threat of sterilization—three 2004 U.S.

Department of State reports. The IJ construed the reports to indicate that the petitioner

would receive special treatment under China’s family planning laws due to his wife’s

American citizenship. The BIA and IJ then explained that because the petitioner did not



                                              4
present any rebuttal evidence of the likelihood of sterilization, he did not meet his burden

of establishing his eligibility for withholding of removal. Although the BIA’s and IJ’s

conclusion regarding the potential for “special treatment” under the family planning

policy rests on a slender reed—a negative inference from a statement in the country

condition report—we agree that the petitioner failed to produce sufficient evidence that

he would likely be subjected to persecution if he was returned to China. See Mulanga v.

Ashcroft, 349 F.3d 123, 133 (3d Cir. 2003) (reiterating that the burden of establishing

eligibility for withholding of removal and relief under the CAT is on the applicant). See

also Xie, 359 F.3d at 244 (stating that the BIA can rely upon State Department reports

that are vague and ambiguous). Additionally, while the BIA was not required to rely on

the country condition report in making its decision, it was entitled to do so “as long as . . .

it did not overlook any contradictory evidence directly presented by the petitioner.”

Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005); see also Yu v. Att’y Gen., 513 F.3d 346,

349 (3d Cir. 2008) (finding that State Department reports may constitute substantial

evidence).2

       Finally, the conclusion that the petitioner was not eligible for relief under the CAT

due to the possibility that he may be detained and fined for leaving China illegally is



   2
        Although forced sterilization constitutes torture, Yu, 513 F.3d at 348, because the
petitioner did not meet his burden of proof regarding his withholding of removal claim
based on the likelihood of sterilization, he also cannot succeed on a claim that he will
likely be subject to torture due to the probability of sterilization.


                                               5
supported by substantial evidence. As the IJ recognized, the record contains evidence that

returnees from the United States may face detention as well as fines; however, detention

and fines, without more, do not rise to the level of torture as defined in the CAT. See

Wang v. Ashcroft, 368 F.3d 347, 350-51 (3d Cir. 2004); Sevoian v. Ashcroft, 290 F.3d

166, 175-76 (3d Cir. 2002). Thus, substantial evidence supports the BIA’s and IJ’s

decision that the petitioner was not eligible for relief under the CAT.

       For these reasons, and after careful consideration of the record and the parties’

contentions, we will deny the petition for review.




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