                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3732




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                                                   NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-3732


                                     XUE ZENG LI,

                                                      Petitioner

                                            v.

    *Alberto Gonzales, ATTORNEY GENERAL UNITED STATES OF AMERICA,

                                                       Respondent




                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A78-262-976)


                       Submitted under Third Circuit LAR 34.1(a)
                                on September 15, 2005

                BEFORE: ROTH, MCKEE and FISHER, Circuit Judges

                                 (Filed March 31, 2006)


                                        OPINION




       *Attorney General Alboert Gonzales has been substituted for former Attorney
General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.P.
43(c).
ROTH, Circuit Judge:

       Xue Zeng Li seeks judicial review of the order of the Board of Immigration

Appeals (BIA) denying his application for asylum and for withholding of deportation. We

will deny his petition.



I.     Factual and Procedural History

       Li, a citizen of the People’s Republic of China, arrived in the United States on or

around July 16, 2000, without being admitted or paroled after inspection. On July 17,

2000, the Immigration and Naturalization Service issued a Notice to Appear charging that

Li was inadmissable under the Immigration and Nationality Act, 8 U.S.C. §

1182(a)(6)(A)(i)(I), as an alien present in the United States without being admitted or

paroled. Li appeared before an Immigration Judge on May 10, 2001 in which Li

conceded removability, but sought relief from removal by filing applications for asylum,

withholding of removal, and protection under the Convention Against Torture (CAT).1

       Li testified as to the series of events in China which formed the basis of his

application for asylum, withholding of removal, and protection under CAT. Li testified

that he staged a demonstration outside a city government building in order to recover

certain employee rights and benefits from his government-run employer. Ultimately, Li



       1
        Petitioners brief does not challenge the denial of his claims under the Convention
Against Torture and thus we need not address this issue.

                                              2
was able to speak with city officials to voice his concerns. Li testified that a few days

after this meeting, the station chief and security personnel from his company removed Li

from his home, detained him for two days and interrogated him. Li testified that during

the interrogation his thumb was cuffed to a window and his hands were beaten. Li

testified that after the detainment he went to a hospital to receive treatment for a broken

finger he suffered in the beating. Upon his return to work, Li received a letter which

terminated his job for the stated reason of participating in several demonstrations. Li

testified that he only participated in one demonstration and that the government was

trumping up the reason for his termination. Li testified that after future demonstrations,

in which he did not participate, the government questioned Li as to whether he was

responsible for each demonstration and threatened that he would be punished if he

participated in or staged any further demonstrations. Li testified that he is now fearful

that anytime a demonstration is staged the government will automatically believe he is the

one who staged it and will punish him accordingly.

       The Immigration Judge (IJ) denied Li’s requests for asylum, withholding of

removal, and protection under CAT. The IJ determined that Li was not credible because

of several inconsistencies in his testimony and therefore failed to establish either past

persecution or likelihood of future persecution . The BIA dismissed Li’s appeal, finding

that he did not meet the burden of proving eligibility for asylum or withholding of

removal. Li’s petition for review followed.



                                              3
II.    Standard of Review and Jurisdiction

       This Court has jurisdiction of Li’s appeal pursuant to § 242(a) of the Immigration

and Nationality Act (INA), 8 U.S.C. § 1252(a) to review timely filed petitions for review

of final orders of the BIAd.

       Where, as here, the BIA affirms the IJ’s decision without opinion, “we review the

IJ’s opinion and scrutinize its reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.

2003). We review the findings of fact and of credibility under the substantial evidence

standard, see Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The decision must be

affirmed “unless the evidence not only supports a contrary conclusion, but compels it.”

Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (quoting Abdille v. Ashcroft, 242

F.3d 477, 484 (3d Cir. 2001).

       An asylum applicant bears the burden of proving either past persecution or a well-

founded fear of future persecution. 8 C.F.R. § 208.13(b). In order to establish a well-

founded fear of future persecution, the applicant must prove “both a genuine subjective

fear and an objectively reasonable fear of persecution” on the grounds of race, religion,

nationality, membership in a particular social group, or political opinion. Gao v. Ashcroft,

299 F.3d 266, 272 (3d Cir. 2002). The applicant for asylum has a two-prong burden - he

must demonstrate both (1) subjective and (2) objective fear of persecution. Id. The



                                             4
applicant must first demonstrate his subjective fear by “showing that [he] has a genuine

fear” of persecution, and then he must demonstrate his objective fear with evidence “that a

reasonable person in [his] circumstances would fear persecution if returned to [his] native

country.” Id. (citing Elnager v. INS, 930 F.2d 784, 786 (9th Cir. 1991)).

       The adverse credibility determination must be sustained “if there is substantial

evidence on the record to support it.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir.

1998). In general, “minor inconsistencies do not provide an adequate basis for an adverse

credibility finding.” Fiadjoe v. Ashcroft, 411 F.3d 135, 153 (3d Cir. 2004). Furthermore,

“the discrepancies must involve the ‘heart of the asylum claim.’” Goa, 299 F.3d at 272.




III.   Discussion

       We will deny the petition for review because substantial evidence supports the

determination that (1) Li was not credible and (2) Li failed to establish past persecution or

a well founded fear of future persecution.

       We agree with the findings of the IJ, as adopted by the BIA, that Li was not

credible. His testimony contained several inconsistencies which, taken together, call his

credibility into question. First, Li had no evidence to corroborate his membership in a

union. Li testified that he was persecuted because of his status as union leader. However,

Li did not show a union membership card, a letter from the union, evidence of payment of

union dues or any other evidence which would have indicated that he was a member of a



                                              5
union. Furthermore, there were inconsistencies in Li’s testimony as to whether he was

arrested alone or with another union member.

       Second, Li testified that he visited a hospital on December 28 and January 3 for

treatment relating to the broken finger he suffered during his interrogation by government

officials. However, the hospital report submitted by Li indicated that his second visit was

actually on January 5. Third, Li testified that he was terminated from his employment for

participating in only one demonstration even though his termination letter indicated he was

fired for participating in several demonstrations.

       We also agree with the findings of the IJ, as adopted by the BIA, that Li failed to

establish his eligibility for asylum by showing a well-founded fear of persecution for his

political opinion. Li’s only evidence of past persecution is his testimony of one instance in

which, due to his alleged union involvement, he was detained for two days, interrogated

and had his little finger broken. However, Li did not present any evidence to corroborate

his union membership.

       Li also provided no evidence that he would be subject to future persecution if he

was to return to China. There is no credible evidence that he will be arrested or tortured.

Because of the number of deficiencies in the evidence that Li presented, we conclude that

he failed to establish his burden of past persecution or of a well-founded fear of future

persecution and thus that there is substantial evidence supporting the conclusions of the IJ




                                              6
and the BIA.2

       For the above stated reasons, we will deny Li’s petition for review.




       2
        The standard for withholding deportation is stricter than that for asylum, thus “a
petitioner unable to satisfy the asylum standard fails, a fortiori, to satisfy the former.”
Mediouni v. INS, 314 F.3d 24,26 (1 st Cir. 2002). Because this Court finds that Li did
not satisfy the standard for asylum, we need not address the issue of withholding
deportation.


                                              7
