                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0178n.06
                                  Filed: March 4, 2009

                                           No. 08-3355

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


XUE RONG ZHENG,                                         )
                                                        )
       Petitioner,                                      )
                                                        )    PETITION FOR REVIEW OF AN
v.                                                      )    ORDER OF THE BOARD OF
                                                        )    IMMIGRATION APPEALS
                                                        )
ERIC H. HOLDER, JR., United States Attorney             )
General,                                                )
                                                        )
       Respondent.


Before: SILER, COOK, and McKEAGUE, Circuit Judges.

       SILER, Circuit Judge. Xue Rong Zheng petitions for review of the decision of the Board

of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) denying his

application for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). He argues that (1) he was credible; (2) he established a well-founded fear of future

persecution; and (3) the BIA abused its discretion by not reopening and remanding the proceedings

to the IJ. For the following reasons, we DENY the petition for review.

                                       I. BACKGROUND

       Zheng, a native and citizen of the People's Republic of China, entered the United States in

1990 or 1993 without inspection. In 1993, he filed an application for asylum, withholding of

removal, and protection under CAT.
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Zheng v. Mukasey

        At his removal hearing, he claimed that he left China in 1989 because he feared that he would

be arrested for participating in student demonstrations when he was 13 years old. He attended with

his cousin who was arrested after the last demonstration and imprisoned for ten years. A couple of

days later, the police came to Zheng’s house to arrest him, but he was not home. The police told his

father that Zheng was to report to the police station. Instead, he and his father hid at a friend’s house

until Zheng left for the United States. After Zheng left, his father was arrested, detained for half a

year, and beaten up while in detention. After being released, his father learned that he had lost his

job at a state-run factory and that Zheng had been dismissed from school. Zheng’s father and

younger brother live in China without harm, but Zheng fears returning to China because of his

participation in the student demonstrations.

        Zheng offered a letter from his father to corroborate his claim, but he did not offer any letters

from his aunt or cousin regarding his participation in the student demonstrations or his cousin’s

arrest. He also did not reference any arrest warrants, police reports, or official proceedings involving

him or his family.

        Zheng also claimed that he feared returning to China because of his practice of Falun Gong

since 2005. He did not present any evidence to corroborate his claim.

        He also said that he lived in New York before moving to Ohio to work. He did not recall

when he left New York, the year or his age. While in New York, he met and married Katherine

Vasquez. In 2001, he applied for an adjustment of status, but the Department of Homeland Security

(“DHS”) denied his application because he did not establish a bona fide marital relationship. The

couple divorced in 2005. In 2007, he filed his second application for adjustment of status. After an

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I-140 petition filed on his behalf was approved, he filed a motion with the BIA to remand, requesting

consideration of his application by the IJ. He argued that he was eligible for status adjustment under

8 U.S.C. § 1255(i) because his 2001 application was “approvable when filed” or “properly filed,

meritorious in fact, and non-frivolous.” 8 C.F.R. §§ 316.10, 1245.10(a)(3).

       The IJ denied Zheng’s application for relief and ordered him removed to China. The IJ found

that Zheng’s testimony was not credible because of (1) inconsistencies between his testimony and

a letter from his father regarding Zheng’s age at the time of the demonstrations, the number of

demonstrations attended, and the length of his father’s detention and (2) the vague descriptions of

the first four alleged demonstrations. In the alternative, the IJ found that Zheng had not established

that he had a well-founded fear of future persecution in China on account of his political opinions

or religious beliefs. The IJ also found that he did not establish that he practiced Falun Gong.

       The BIA adopted and affirmed the IJ’s decision and dismissed Zheng’s appeal. It found that

the IJ’s adverse credibility finding was not clearly erroneous. It also denied his motion to reopen and

remand the proceedings to the IJ for consideration of his second application for adjustment of status.

It found that Zheng was not a “grandfathered alien” under 8 U.S.C. § 1255(i) because his first visa

petition was not “approvable when filed.” It also stated that Zheng failed to provide prima facie

evidence that his application showed that he would be eligible for a status adjustment and did not

meet the “heavy burden” of showing that a motion to reopen was warranted.

                     II. JURISDICTION AND STANDARD OF REVIEW

       This court has jurisdiction to review a final order of removal under 8 U.S.C. § 1252.

“Because the BIA summarily adopted the IJ’s decision without issuing its own opinion, we review

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Zheng v. Mukasey

the decision of the IJ as the final administrative order.” Ramaj v. Gonzales, 466 F.3d 520, 527 (6th

Cir. 2006). We review the IJ’s factual findings, including adverse credibility findings, under the

substantial evidence standard and reverse only if “any reasonable adjudicator would be compelled

to conclude to the contrary.” Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004) (quoting 8 U.S.C.

§ 1252(b)(4)(B)). We review the BIA’s denial of a motion to reopen and remand for abuse of

discretion. Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007).

                                        III. DISCUSSION

(1) The IJ’s Credibility Determination

       The IJ provided specific reasons for his adverse credibility findings that were “based upon

issues that go to the heart of the applicant’s claim” or that can be viewed as attempts to enhance his

claim. See Ramaj, 466 F.3d at 527. Given the inconsistencies in Zheng’s testimony and his father’s

letter and the lack of corroborating evidence to support his claims, the IJ’s credibility determination

was reasonable and supported by substantial evidence.

       Zheng claimed that he fled China and had a well-founded fear of persecution because of his

political opinion or involvement in pro-democracy student demonstrations. However, the IJ found

inconsistencies in the record involving the extent of Zheng’s political involvement. See Ramaj, 466

F.3d at 528 (providing that “an inconsistency about the level of involvement in political activities

. . . goes to the heart of the claim”). Zheng testified that he had distributed leaflets and collected

donations at “probably four or five” student demonstrations, but his father only mentioned one

student parade. Zheng stated that he was 13 years old at the time of the student demonstrations, but

the two translations of his father’s letter provide that he was 19 or “10 and some years old.” His

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Zheng v. Mukasey

father also noted that he was not worried at first because his son “had nothing to do with politics.”

In addition, the IJ found that the record was inconsistent regarding the length of his father’s

detention. Zheng claimed that his father was detained for “half a year,” and his father provided that

he was detained for a “few months.” Zheng also testified that his father was beaten while he was

detained. His father stated that his house and belongings were damaged but did not mention any

physical harm. Finally, the IJ found that Zheng was vague when describing his participation in the

demonstrations prior to June 4, 1989. Zheng provided little information on the purpose of the

student movement or why he collected donations.

        Zheng did not present any other evidence to corroborate his claim. Although an alien is not

required to produce corroborating evidence – his testimony alone can be sufficient – and such

evidence may be difficult to ascertain, his failure to do so further supports the IJ’s adverse credibility

finding. See Pilica v. Ashcroft, 388 F.3d 941, 954 (6th Cir. 2004).

        Additional inconsistencies and unanswered questions – such as when Zheng left China, when

he arrived in the United States, when he moved from New York to Ohio, and whether he received

work authorization – are minor and have no bearing on whether he should be returned to China.

However, their “cumulative effect” gives further support to the IJ’s adverse credibility finding. See

Yu, 364 F.3d at 704.

(2) Asylum

        To be eligible for asylum, an applicant must show that he is a “refugee,” which includes any

person that is unable or unwilling to return to his home country because of a well-founded fear of

future persecution based on political opinion or religion. 8 U.S.C. § 1101(a)(42)(A).

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        A. Political Opinion

        The IJ reasonably found that Zheng did not establish a well-founded fear of future

persecution because of his participation in the student demonstrations when he was 13 years old.

The IJ found that it was “implausible that the Government of China would be still seeking out to

persecute” such a young, minor participant in a few demonstrations so many years earlier. See

Pilica, 388 F.3d at 954 (providing that “political involvement, consisting merely of attending five

demonstrations at which he held up signs, yelled, and applauded, was ‘sparse’” and not sufficient

to establish a well-founded fear of future persecution). The IJ also found that Zheng did not meet

his burden of establishing that he participated in the student demonstrations because his testimony

was vague and provided very little detail and he presented insufficient evidence to corroborate his

claim. Moreover, Zheng’s father and younger brother remain in China without harm. There is no

evidence that his father has been threatened, arrested, or detained since the arrest in 1990 or that the

police are still seeking Zheng for questioning or punishment. In sum, the IJ reasonably concluded

that Zheng did not provide sufficiently detailed explanations or reasonably expected corroborating

evidence to meet the burden of proof necessary for granting asylum. See Dorosh v. Ashcroft, 398

F.3d 379, 382-83 (6th Cir. 2004).

        B. Religious Beliefs

        The IJ reasonably found that Zheng did not establish a well-founded fear of future

persecution based on his religious beliefs because he did not show that he was a Falun Gong

practitioner. Zheng provided that he was introduced to Falun Gong by an American, Michael, in

2005. He practiced Falun Gong in his room while living with co-workers and discussed this practice

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with them. None of these individuals provided statements to support Zheng’s interest in or practice

of Falun Gong. Zheng also sought a Master or teacher in the United States, contacting at least two

Masters in Ohio. Neither Master provided a statement to support the alleged contact. Now, Zheng

lives alone and continues to practice Falun Gong alone in his apartment once or twice a week by

reading, calming his mind, finding information on the Internet, watching videos, and performing

exercises (two or three times a week). He claims that he has lost contact with the people that knew

of his practice of Falun Gong so that his claim cannot reasonably be corroborated. The IJ did not

err in concluding that Zheng failed to establish that he practiced Falun Gong. See id.

(3) Withholding of Removal

       The burden of proof for withholding of removal is more stringent than that for asylum. See

Pilica, 388 F.3d at 951. Because Zheng failed to meet the burden of proof for his asylum claim, he

necessarily failed to meet the higher burden of proof for withholding of removal.

(4) Relief under the Convention Against Torture

       Under CAT, the applicant must show 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. § 1208.16(c)(2). Zheng did not

make a CAT claim separate from his claim for asylum. For the same reasons that he has failed to

show that persecution is more likely than not, he has failed to show that torture is more likely than

not. See Berri v. Gonzales, 468 F.3d 390, 398 (6th Cir. 2006).

(5) Motion to Reopen for Adjustment of Status

       An alien may file a motion to reopen and remand if there are new facts that establish

eligibility for the relief sought. 8 C.F.R. § 1003.2(c); Yousif v. INS, 794 F.2d 236, 241 (6th Cir.

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1986). He may show eligibility for an adjustment of status under 8 U.S.C. § 1255(i) if he is the

beneficiary of a visa petition filed on or before April 30, 2001 that was “approvable when filed.”

To be “approvable when filed,” the petition must be “properly filed, meritorious in fact, and non-

frivolous . . . based on the circumstances that existed at the time the qualifying petition . . . was

filed.” In re Riero, 24 I. & N. Dec. 267, 268 (BIA 2007) (quoting 8 C.F.R. § 1245.10(a)(3)). The

denial of a previous petition is significant, but not determinative, of whether the petition was

“meritorious in fact.” Id.

       The BIA properly exercised its discretion in denying Zheng’s motion to reopen and remand

because “[t]here was insufficient evidence that [Zheng’s] marriage was bona fide at the time the

petition was filed” and Zheng “failed to demonstrate that the marriage visa petition was ‘approvable

when filed.’” In support of his claim that his marriage was bona fide, Zheng offered several

documents. However, it appears that the only new information was two affidavits from Zheng’s

friends stating that Zheng got married; he moved into his wife’s parents’ house; he was apart from

his wife most of the time; and his wife had an affair (or was still seeing her ex-boyfriend). The

evidence initially presented to the DHS (along with interviews of Zheng and Vasquez) did not

demonstrate a bona fide marriage, and Zheng did not provide any new facts that established

eligibility for the relief sought. The BIA properly decided that he “failed to meet the ‘heavy burden’

of showing that a motion to reopen was warranted.”

       PETITION DENIED.




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