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


2-12-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4431




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                                                 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                        No. 06-4431



                   JIAN KANG ZHENG,
                                Petitioner

                             v.

      ATTORNEY GENERAL OF THE UNITED STATES,
                             Respondent



              On Petition for Review of an Order
             of the Board of Immigration Appeals
                      (No. A77-977-913)
            Immigration Judge: Hon. Donald Ferlise



          Submitted Under Third Circuit LAR 34.1(a)
                     February 11, 2008

  Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges

                  (Filed February 12, 2008)

                           ______

                         OPINION
SLOVITER, Circuit Judge.

       Jian Kang Zheng petitions for review of an order of the Board of Immigration

Appeals (“BIA”) adopting and affirming the Immigration Judge’s (“IJ”) denial of his

applications for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”).

                                              I.

       Zheng is a native and citizen of the People’s Republic of China who entered the

United States without a valid entry document on October 4, 2001. At the evidentiary

hearing before the IJ, Zheng testified that after the birth of his son, his wife was required

to have an IUD inserted against her will, and go for a physical check-up three times a

year. She nevertheless became pregnant again in 2001, which prompted Zheng and his

wife to go into hiding in Foo Chow. They were discovered in May of 2001 when family

planning authorities knocked on their door. After Zheng attempted to argue and struggle

with these officials, they took his wife and performed an abortion the next day. One

month later, an IUD was again inserted in his wife.

       At the hearing, Zheng admitted that he had lied both during his airport and credible

fear interviews, conducted on October 5 and 17, 2001, respectively. At the airport

interview, he told the immigration officer that he was afraid to return to China because he

feared being sterilized. Similarly, at the credible fear interview he stated that Chinese

family planning officials wanted to sterilize him, that they had already sterilized his wife,

and that he had paid a 5,000 RMB fine after his wife was forced to undergo an abortion.

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Zheng also stated at that interview that he was “afraid at the airport and so did not explain

everything that the birth control officials did to my wife and to me.” App. at 117.

       When asked at the hearing before the IJ why he lied during his airport interview

about these facts, Zheng explained that “the snakehead [smugglers] told me I had to

mention about the sterilization and the U.S. Government will keep me here. And if I did

not tell about sterilization, the U.S. Government will send me back to China, so I lied to

the officer that time.” App. at 90. He gave the same explanation as to why he lied about

this at the credible fear interview, where he also lied about the 5,000 RMB fine because

“at the detention facility, the people there were also detained, told me to tell more

problems in China, you will get bail out easier.” App. at 92.

       Another contradiction arose regarding whether Zheng fought with Chinese

officials when they attempted to take his wife for an abortion or for an IUD insertion.

Zheng explained his differing airport statement as due to his nervousness and because he

did not express himself very well, which the IJ found conflicted with Zheng’s direct

examination in which he testified that snakeheads had told him to lie to stay in this

country. Moreover, Zheng testified very inconsistently regarding his wife’s IUD, first

stating she had no problems with it but then changing his answer after his wife’s affidavit

was shown to state the opposite, and explaining the inconsistency by stating that “I don’t

think this is a family planning problem.” App. at 100. Zheng also testified that other

detainees told him to say “something more, more theories, problems you have, the easier”

it is to get asylum. App. at 102. There were further contradictions regarding how long

                                              3
Zheng and his wife went into hiding, and again Zheng admitted to lying at his interviews.

       The IJ denied Zheng’s application for asylum, withholding of removal, and CAT

relief on December 20, 2004. He found that Zheng was not credible:

       [Zheng] is telling the Court that he lied to the immigration officers under oath but
       that he is telling the Court the truth today, but he has failed to give the Court any
       reason to believe that he is indeed telling me the truth today. [Zheng’s] history of
       dealing with government officials here in the United States is one of deceit and
       deception and I have no reason to believe that [he] has changed his presentation
       today and that it contains anything other than further deceit, further deception and
       further fabrication.

App. at 42-43. Recognizing this court’s caution in Zubeda v. Ashcroft, 333 F.3d 463, 476

(3d Cir. 2003), against placing too much weight on discrepancies between an asylum

application and subsequent testimony, the IJ cited Xie v. Ashcroft, 359 F.3d 239, 246 (3d

Cir. 2004), in which the discrepancies went “to the heart of the claim.” Here, too, the IJ

found the discrepancies between Zheng’s earlier statements, his wife’s statement, and his

own impeachment of his testimony “do indeed go to the heart of the case in chief” and are

material and substantial. App. at 44. The IJ also found Zheng’s application to be

frivolous.

       The BIA affirmed the decision of the IJ without opinion. We have jurisdiction

over the petition under 8 U.S.C. § 1252.




                                              4
                                              II.

       Under the substantial evidence standard, an “adverse credibility determination

must be upheld on review unless ‘any reasonable adjudicator would be compelled to

conclude to the contrary.’” Xie, 359 F.3d at 243 (quoting Gao v. Ashcroft, 299 F.3d 266,

272 (3d Cir. 2002)). “Adverse credibility determinations based on speculation or

conjecture, rather than on evidence in the record, are reversible.” Gao, 299 F.3d at 272.

An IJ must support his or her credibility findings with “specific, cogent reason[s] . . . .”

Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc) (internal citation and

quotation marks omitted).

       In this case, substantial evidence supports the IJ’s adverse credibility

determination, as Zheng demonstrated a propensity to change his story multiple times.

See Balogun v. Ashcroft, 374 F.3d 492, 504 (7th Cir. 2004). The discrepancies go to the

heart of Zheng’s claim, for he explicitly testified that he lied to the immigration officers

in his earlier statements because he wanted to stay in the United States. The details

referred to by the IJ were not minor; Zheng admitted to numerous misrepresentations,

which the IJ considered in light of the entire record. See Secaida-Rosales v. INS, 331

F.3d 297, 308 (2d Cir. 2003) (explaining that “outright inconsistencies” and “omissions

must be measured against the whole record before they may justify an adverse credibility

determination”). Zheng’s claim that he was credible at the hearing before the IJ is not a

sufficient basis to overturn the IJ’s credibility determination. Finally, the IJ found

Zheng’s recantation over three years after his initial lies not timely; we agree with this

                                              5
determination. Cf. Matter of Namio, 14 I. & N. Dec. 412, 414 & n.3 (BIA 1973). The

evidence in the record does not compel us to conclude that Zheng was credible, and

therefore he could not establish a well-founded fear of future persecution.1 See INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

       The more difficult issue is whether it was appropriate for the IJ to find Zheng’s

asylum application “frivolous” pursuant to 8 U.S.C. § 1158(d)(6). There are severe

consequences for filing a frivolous asylum application. See id.; Muhanna v. Gonzalez,

399 F.3d 582, 588 (3d Cir. 2005). Under the implementing regulation, 8 C.F.R. § 208.20,

“a finding of frivolousness does not flow automatically from an adverse credibility

determination . . . the regulation requires more: a finding of deliberate fabrication of a

‘material element’ of an application, plus an opportunity for the alien to account for

inconsistencies.” Muhanna, 399 F.3d at 589.

       Based on the finding that Zheng had deliberately fabricated material facts, the IJ,

after having warned Zheng of the consequences of filing a frivolous application at the

beginning of his hearing, found that Zheng was “an entirely incredible individual who has

filed a totally incredible application, an application which the Court deems due to the

nature of the contradictions, due to the nature of the fraudulent testimony to be indeed a

frivolous application for asylum.” App. at 43. Such findings satisfy the mandate of 8



                    1
                     Zheng has waived his claim under the CAT by failing to
             raise the issue in his petition for review. See He Chun Chen v.
             Ashcroft, 376 F.3d 215, 221 (3d Cir. 2004).

                                              6
C.F.R. § 208.20. The basis of Zheng’s asylum claim is persecution as a result of Chinese

family planning policies; however, the IJ found that Zheng’s testimony contradicted his

earlier statements to immigration officers, contradicted his wife’s statement, and

contradicted his own testimony at the hearing. On this basis, the IJ determined that

Zheng deliberately fabricated his story and that there was “no reason to believe that [he]

has changed his presentation today and that it contains anything other than further deceit,

further deception and further fabrication.” App. at 43. Zheng was given sufficient

opportunity to explain his inconsistent testimony, and indeed he gave reasons for his

earlier misrepresentations, but in light of the obvious contradictions at the heart of the

case, we conclude that substantial evidence supports the IJ’s finding that Zheng fabricated

a material element of his application.

                                             III.

       For the above-stated reasons, we will deny the petition for review.




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