                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3806




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                      No. 04-3806
                                   ________________

                                  JING SHAN ZHANG,
                                                                Petitioner

                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES,*
                                                     Respondent
                     ____________________________________

                        On Petition for Review of a Decision of the
                             Board of Immigration Appeals
                                (Agency No. A77 645 120)
                      _______________________________________


                        Submitted Under Third Circuit LAR 34.1(a)
                                     April 22, 2005

                Before: ALITO, SMITH and BECKER, CIRCUIT JUDGES

                                 (Filed: April 27, 2005)
                               _______________________

                                      OPINION
                               _______________________


PER CURIAM




  *
      Caption amended pursuant to Rule 43(c), Fed. R. App. P.
       Jing Shan Zhang seeks review of a final order of removal issued by the Board of

Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.

       Because we write only for the parties, who are familiar with the facts and

background, we will not recount them except as necessary to our discussion. Zhang, a

citizen of the People’s Republic of China, fled his country in November 1999 after

becoming involved in an altercation with family planning officials as they arrested his

sister for violating the country’s birth control policy. When Zhang attempted to enter the

United States without valid documents, he was apprehended and charged with

inadmissibility.

       Appearing before an immigration judge (“IJ”), Zhang conceded his inadmissibility.

He applied for asylum, statutory withholding of removal, and relief under the Convention

Against Torture based on his fear of persecution and torture for opposing China’s birth

control policy. The IJ fully credited Zhang’s testimony, found his evidence insufficient to

support an assertion of a well-founded fear of persecution, denied his applications for

relief, and ordered him removed. On appeal, the BIA, by a single member, affirmed

without opinion. Zhang now petitions for review.1

       The Attorney General has discretion to grant asylum to any alien who qualifies as a

refugee. See 8 U.S.C. § 1158(b)(1); Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir.



   1
   We have jurisdiction over Zhang’s petition for review pursuant 8 U.S.C. § 1252.
Because the BIA summarily affirmed without opinion, we review the IJ’s decision. See
Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc).
                                            2
2003). For relevant purposes, a refugee is any alien who is unable or unwilling to return

to his country of nationality because of a well-founded fear of persecution on account of

political opinion. See 8 U.S.C. § 1101(a)(42); Lukwago, 329 F.3d at 167.2 Specifically,

an alien who has a well-founded fear that he will be persecuted for resisting a coercive

population control program is deemed a refugee. See 8 U.S.C. § 1101(a)(42). We review

the IJ’s factual determination that Zhang has not demonstrated a well-founded fear of

persecution under the substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002). Under this standard, we will uphold the IJ’s findings to the extent that

they are supported by reasonable, substantial, and probative evidence on the record as a

whole. Id.

       We have reviewed the record in its entirety and find ample support for the IJ’s

conclusion that Zhang has no well-founded fear of persecution. The altercation between

Zhang and family planning officials occurred in October 1999, more than five years ago.

The altercation was completely verbal – Zhang was never physically attacked or

threatened with physical harm. No evidence of record suggests that Zhang ever spoke out

against the Chinese government or its birth control policy except on this one occasion.


   2
    Zhang also applied for statutory withholding of removal, which requires him to show
that it is more likely than not that he will be persecuted on account of one of the
statutorily prescribed attributes. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b);
Lukwago, 299 F.3d at 182. Because we agree with the IJ that Zhang failed to satisfy the
standard for asylum, as explained herein, he necessarily fails to meet the standard for
statutory withholding of removal. See Lukwago, 299 F.3d at 182. To the extent Zhang
also applied for relief under the CAT, we find no evidence giving rise to a claim of
torture. See 8 C.F.R. § 208.16(c).
                                                3
This single incident occurred because he came to the defense of his sister, who remains in

China with her husband. No evidence suggests that Zhang was charged with a crime or

arrested, or that any outstanding warrant for his arrest exists. We agree with the IJ that

Zhang has fallen far short of demonstrating a well-founded fear of persecution if returned

to China.

       For these reasons, we conclude that the IJ’s findings are supported by reasonable,

substantial, and probative evidence on the record as a whole. Accordingly, we will deny

Zhang’s petition for review.
