                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0770n.06
                           Filed: December 18, 2008

                                           No. 07-4353

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


XIAO REN ZHUANG,                                         )
                                                         )
       Petitioner,                                       )        ON PETITION FOR REVIEW
                                                         )        OF A DECISION OF THE
               v.                                        )        BOARD OF IMMIGRATION
                                                         )        APPEALS
MICHAEL B. MUKASEY, Attorney General,                    )
                                                         )
       Respondent.                                       )
                                                         )



BEFORE: ROGERS, SUTTON, and McKEAGUE, Circuit Judges.

       ROGERS, Circuit Judge. Xiao Ren Zhuang petitions for review of the decision of the Board

of Immigration Appeals, which affirmed the decision of an immigration judge to deny Zhuang’s

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

Torture (“CAT”). Zhuang filed his application for asylum claiming that Chinese government

officials forced his wife to undergo an abortion and attempted to force him to undergo sterilization

before he fled the country. The IJ denied asylum because Zhuang did not file his application within

a year of entering the United States. The IJ denied withholding of removal and CAT protection

because she found that Zhuang’s story lacked consistency and credibility. This court does not have

jurisdiction to review the IJ’s decision to deny asylum where the petitioner’s application was
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untimely. Moreover, the IJ’s finding that Zhuang lacked credibility, a finding fatal to Zhuang’s other

claims, is supported by substantial evidence. We therefore deny the petition.

                                                   I.

        Zhuang is a Chinese citizen who seeks to stay in this country because of past (and fear of

future) persecution under China’s family planning policy. Zhuang testified at his asylum hearing that

he and his wife married when they were below the legal age of marriage, so the Chinese government

did not issue them a marriage certificate. Shortly after Zhuang’s wife gave birth in September 1991,

government officials requested that Zhuang pay a fine for the birth of his child. Although Zhuang

initially resisted, he decided to pay the fine in April 1992 so that he and his wife could receive a

marriage certificate and so that their son could receive a birth certificate and be legally registered as

a member of their household.

        Zhuang testified that after he and his wife received their marriage certificate, local

government officials asked his wife to have an intrauterine device inserted, which she did on April

15, 1992. However, the IUD was somehow dislodged and Zhuang’s wife learned that she was again

pregnant in September 1994. Zhuang and his wife wanted to carry the child to term, so they arranged

for Zhuang’s wife to hide at her sister’s home. On November 21, Zhuang received a call from his

sister-in-law, letting him know that his wife had been discovered. When Zhuang arrived at his sister-

in-law’s home, he found that local officials had taken his wife to the hospital. When he arrived at

the hospital, an abortion had already been performed. At that time, another IUD was inserted.

Zhuang’s wife alleged these same facts in a letter supporting Zhuang’s asylum application.


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        Zhuang further testified at his hearing that, in 1996, his company fired him for refusing to

be sterilized. He stated that after his company asked him to submit to sterilization, he went to the

hospital to have the procedure; however, he changed his mind and surreptitiously left the hospital.

Zhuang recounted the facts in a slightly different way in his asylum application. He claimed that

family planning officials came to his home in January 1996 to take him for a vasectomy. Not

wishing to be sterilized, he fled to another city. His company pressured him to come back for the

procedure or risk dismissal. He was subsequently dismissed. His wife’s letter stated the facts more

generally, saying that in 1996 the family planning office unsuccessfully attempted to get her husband

to submit to sterilization.

        Zhuang testified at the hearing that after he was fired from his company, he went to work for

several months in the city of Shen Chen. In August 1997, he was able to purchase airfare to Canada.

Zhuang lived in Canada for a little over a year, during which time he filed an unsuccessful asylum

application. Sometime before Thanksgiving 1998, Zhuang heard that his mother was ill and decided

to return to China. Zhuang testified that he was imprisoned for one week and fined upon arrival in

Shanghai, an incident he neglected to mention in his asylum application. Zhuang further testified

that, after returning to China, he worked in Shen Chen for five years performing temporary labor.

His asylum application also indicated a lengthy residence in that city. Zhuang’s official residence

throughout this time, as evidenced by his asylum application and by government documents issued

in March 2002, was Nanyu village. However, Zhuang testified that he only visited his home village

for a brief time and otherwise resided in Shen Chen after his return to China in 1998.


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       Zhuang wrote in his asylum application that, while he was working in Shen Chen, a friend

found a way for him to come to America. Zhuang left China on March 20, 2002, and traveled

through Hong Kong, Singapore, and Mexico before arriving in Houston on April 1, 2002. On cross-

examination, Zhuang testified that he climbed over a mountain to get from Mexico to Houston,

which testimony prompted the IJ to observe that there are no mountains near Houston. Zhuang

explained on redirect examination that he and some others took a bus to a hotel near the border,

walked for two days to reach the border, then took a four to five hour car trip to reach Houston.

Zhuang also apparently passed through New York before he was eventually apprehended by U.S.

officials in Detroit in September 2002.

       On October 21, 2002, Zhuang was served with a Notice to Appear, which alleged that he was

not a citizen or national of the United States, that he arrived in the U.S. on or about April 1, 2002,

and that he had not been admitted or paroled by an Immigration Officer. Zhuang appeared before

an IJ on October 24. At that time, Zhuang indicated that he wanted to find a lawyer before

proceeding, and the IJ gave him until December 5 to do so. The IJ also conducted a bond hearing,

at which he concluded that Zhuang was a flight risk and raised his bond from $10,000 to $40,000.

Although the IJ reserved the issue for a later hearing on the merits, he mentioned in his decision that

he found Zhuang’s story to be inconsistent and incredible. The IJ stated that he had grave concerns

about the merit of any future claim for asylum, noting that Zhuang had yet to make an affirmative

application for asylum despite having resided in the country for six months and that Zhuang did not

articulate any basis for an asylum claim.


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       Zhuang appeared with counsel on December 5, 2002. At that time, Zhuang admitted all the

grounds for removability set forth in the Notice to Appear. Zhuang also indicated that he wished to

seek asylum, withholding of removal, and relief under the CAT. The IJ gave Zhuang until January

21, 2003, to file all applications or else to abandon the claims. Zhuang filed his asylum application

in July 2003. He appeared before a different IJ on July 9, 2003. At that hearing, the IJ noted that

the asylum application might be untimely. The merits hearing, which took place before a third IJ,

did not occur until March 6, 2006.

       At the merits hearing, the IJ made two findings that ultimately led to an order of removal.

First, the IJ found that Zhuang’s application for asylum was untimely, having been filed more than

a year after he entered the United States. For this reason, Zhuang did not establish eligibility under

8 U.S.C. § 1158 (a)(2)(B). Second, the IJ found that Zhuang’s testimony was not credible. The IJ

listed several reasons for her finding.

       First, the IJ focused on the fact that Zhuang omitted his residence in Canada and his

unsuccessful asylum application there from his application for asylum in the United States. (The IJ’s

analysis here is puzzling given that the copy of Zhuang’s application contained in the record makes

reference to his arrival in Canada on August 12, 1997, and his subsequent application for political

asylum. Moreover, his own attorney elicited the information about Zhuang’s time in Canada at the

very beginning of his testimony, which indicates that Zhuang was not anxious to hide the fact that

he spent a year in Canada or that he applied for asylum there.)




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        Second, the IJ focused on the fact that Zhuang lived in China for four to five years after

returning from Canada without undergoing any persecution. Key to this issue was the IJ’s belief that

Zhuang never established that he lived anywhere other than his own village during those years. The

IJ mentioned that Zhuang’s household registry and identity card, both issued in March 2002, list his

residence as Nanyu village. The IJ asserted that if Zhuang was able to live in China for four years

unharmed—and even to obtain documentation from the very authorities that he claimed wanted to

persecute him—the likelihood of persecution in the future was small.

        Third, the IJ questioned the validity of the evidence that Zhuang’s wife was forced to undergo

an abortion and that Zhuang was at risk of forced sterilization. The IJ noted that Zhuang submitted

two abortion certificates while, with no explanation of the contradiction, his story only made

reference to one abortion. (Zhuang later addressed this issue in a motion to this court. He claims

that one of the documents was mistranslated to read “abortion operation” when it should have read

“IUD insertion.” With this alteration, Zhuang’s testimony and documentation would be consistent

with each other.) The IJ also observed that Zhuang wrote in his application that the family planning

officials came to his home to take him to be sterilized, while he testified at the hearing that officials

at his workplace pressured him to have the procedure. Additionally, the IJ questioned Zhuang’s

documents—both the ones he produced and the ones he failed to produce. She noted that the State

Department’s Profile of Asylum Claims and Country Conditions for China advises that our

government is unaware of the “abortion certificates” often submitted with asylum applications, and

that the only similar documents known to be legitimate are certificates issued after voluntary


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abortions. The IJ also mentioned that Zhuang claimed to have received written notification from his

company regarding a vasectomy, but he was unable to produce this notice.

       Fourth, the IJ cited information in China’s Country Reports Profile for the proposition that

the U.S. government found that there were no forced abortions in the relevant part of China in the

ten years leading up to 2004, and that doctors in the area say there have been no forced abortions or

sterilizations since the late 1980s. The State Department report contained in the record reads:

       According to the Fujian Provincial Family Planning Committee (FPFPC), there have
       been no cases of forced abortion or sterilization in Fujian in the last 10 years, but it
       is impossible to confirm this claim. The FPFPC acknowledges that during the 1980s
       and early 1990s there were isolated cases of forced abortion and sterilization. Since
       that time, the FPFPC asserts that it has insisted that all men and women who undergo
       surgical procedures provide informed, written consent before surgery. Local
       physicians in contact with the U.S. Consulate General in Guangzhou report that they
       have not seen signs of forced abortions or sterilizations among their patients from
       Fujian and Guangdong Provinces since the 1980s.

The IJ quoted this passage selectively in her opinion.

       The IJ made her credibility concern explicit when she said, “It is also noted that snakeheads

[Chinese smugglers] have, in many cases, provided applicants for asylum the details and documents

necessary to obtain relief.” According to the testimony of both Zhuang and his wife, Zhuang worked

with Chinese smugglers in both his application for asylum in Canada and his application here. The

IJ noted that she saw critical, unresolved inconsistencies between his application and his testimony

at the hearing, and she found that Zhuang failed to establish a credible claim for relief.

       Zhuang appealed the decision to the BIA, and the BIA issued a one-page, per curiam opinion

adopting the IJ’s decision. Zhuang then petitioned this court to review the BIA’s decision. Because


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Zhuang allegedly discovered the mistranslation of one of his documents subsequent to his appeal

before the BIA and his petition to this court but prior to submitting his brief, Zhuang now attempts

to raise an ineffective assistance of counsel claim for the first time before this court. As part of this

effort, Zhuang has filed a complaint against his previous attorney on two grounds: (1) that his

attorney failed to file Zhuang’s asylum application within the one-year deadline or to preserve the

issue of timeliness in Zhuang’s appeal before the BIA, and (2) that the attorney did not catch a

mistranslation in one of the key pieces of documentary evidence, thus casting serious doubt on

Zhuang’s credibility. Zhuang asks the court to take judicial notice of the mistranslation and to

overturn the IJ’s order of removal. Alternatively, he asks the court to remand the case to the BIA.


                                                   II.

                                                   A.

        The issues surrounding the potential mistranslation of one of Zhuang’s documents are not

properly before this court. Zhuang asks the court to take judicial notice that a document in the record

that reads “abortion operation” should instead read “IUD insertion.” He then goes on to urge this

court to grant relief based on the newly-admitted evidence, or to remand the case to the BIA for

further proceedings in light of the alleged mistranslation. We need not consider the propriety of

taking judicial notice in this situation, because the only point of doing so would be to allow the court

to consider two issues that are not properly before it. They are (1) whether the alleged mistranslation

calls into question the IJ’s adverse credibility determination and (2) whether Zhuang’s counsel

performed ineffectively at the original hearing and the BIA appeal. We do not consider either of

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these issues, because they were not raised before the BIA. “[O]nly claims properly presented to the

BIA and considered on their merits can be reviewed by this court in an immigration appeal.”

Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004). We do not take the exhaustion requirement

to preclude arguments that merely give additional support to claims that were raised before the BIA.

However, Zhuang’s arguments to the BIA regarding the IJ’s adverse credibility finding did not

preserve, or even mention, a claim that the IJ’s finding was undermined by translation errors. Nor

has Zhuang yet raised an ineffective assistance of counsel claim before the BIA, although the BIA

provides a mechanism for him to do so.

       Alternatively, Zhuang asks the court to supplement the record and remand the case for further

proceedings in light of the supplementation, but such action would be improper. As we noted in a

similar situation, “we lack a statutory basis for remanding [such a] case or for supplementing the

record.” Huang v. Mukasey, 523 F.3d 640, 656 (6th Cir. 2008) (addressing petitioner’s request that

her case be remanded in light of new translations of certain Chinese government documents).

Zhuang bases his request on the fact that he has begun the process of reopening his case before the

BIA by filing a complaint against his former attorney, notifying the attorney of that complaint, and

swearing out an affidavit enumerating his previous attorney’s various faults. See Matter of Lozada,

19 I. & N. Dec. 637, 639 A-31025184 (BIA 1988) (setting out the requirements for filing a motion

to reopen to consider a claim of ineffective assistance of counsel). But the fact that Zhuang wishes

to pursue an ineffective assistance of counsel claim below does not empower this court to take any

action, including remand, on that claim now. The proper course of action is for Zhuang to file a


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motion to reopen with the BIA. See 8 C.F.R. § 1003.2(c)(1); Melaj v. Mukasey, 282 F.App’x. 354,

361 (6th Cir. 2008). This court could then consider the BIA’s decision on appeal after the BIA had

the first chance to determine whether reopening was appropriate and, if so, to consider whether the

evidence of ineffective assistance, including the evidence of mistranslation, had merit. See Huang,

523 F.3d at 656. We therefore consider only that portion of Zhuang’s petition which seeks review

of the IJ’s decision based on evidence in the record.

                                                  B.

       To the extent that Zhuang’s arguments relate to his asylum claim, as opposed to his

withholding of removal and CAT claims, they are misplaced. Although the petitioner mentions the

constitutional requirement of due process in deportation proceedings,1 his arguments before the BIA

and before this court focus entirely on refuting the IJ’s adverse credibility finding. The IJ based her

denial of asylum on untimeliness. This court does not have jurisdiction to review the denial of an

asylum application for untimeliness when the petitioner seeks review based on “discretionary or

factual questions” as opposed to “constitutional claims or matters of statutory construction.”

Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006).

                                                  C.

       In contrast to the asylum claim, which failed on timeliness grounds, the withholding of

removal and CAT claims failed because the IJ found Zhuang’s account to be incredible. Because


       1
         “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999)
(citations omitted).

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the BIA adopted the IJ’s reasoning, this court reviews the IJ’s decision directly to see if the BIA’s

decision should be upheld. Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir. 2005). While it is

possible to find fault with some of the IJ’s bases for doubting Zhuang’s credibility, the deferential

standard of review justifies affirmance. The problems with the IJ’s credibility findings are as

follows. First, the IJ’s statement that Zhuang omitted his residence and asylum application in

Canada from his U.S. asylum application is contradicted by the record. Zhuang’s application directly

refers to both. Second, the IJ emphasized the fact that Zhuang’s official documents stated that he

lived in Nanyu village in the years before he traveled to the U.S., not in Shen Chen as he claimed.

Yet State Department publications, on which the IJ otherwise relied for information about the

situation in China, report that peasants in China cannot easily change their official residence from

rural to urban areas, but that they often move to urban areas without obtaining official status. Third,

the IJ mentioned the inconsistency between Zhuang’s documentary evidence, which included two

abortion certificates, and his testimony, which alleged only one abortion. While the fact that one of

those certificates might have been mistranslated is not properly before the court, the IJ could have

inquired into the inconsistency at the hearing and given Zhuang a chance to explain. Fourth, the IJ

cited a State Department report for the proposition that forced abortions and sterilizations did not

take place in Fujian Province during the relevant time period, but she cited the report selectively in

order to draw a factual conclusion not fully supported by the text. These faults could call the

accuracy of the IJ’s determination into question.




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       However, the IJ also based the adverse credibility finding on the fact that Zhuang lived in

China unharmed from 1998 to 2002, a fact which Zhuang does not contest and which undermines

his claim that he would likely face persecution if deported. Additionally, the IJ based the finding

on her suspicion that the story and the documents were provided to Zhuang by a Chinese smuggler.

Zhuang’s testimony and his wife’s letter in support of his application indicate that he worked with

such a person during the application process.

       Looking at the record as a whole, the evidence adequately supports the IJ’s conclusion that

Zhuang’s account lacked credibility. We review the IJ’s factual determinations under the deferential

substantial evidence standard, meaning we must “uphold the administrative decision if it is supported

by reasonable, substantial, and probative evidence on the record considered as a whole, and may

reverse only if the evidence compels a different result.” Zoarab v. Mukasey, 524 F.3d 777, 780 (6th

Cir. 2008) (internal quotations and citations omitted).       In the words of the statute, “[T]he

administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Under this standard of review, the IJ’s

adverse credibility determination stands.

       Although we review the IJ’s legal determinations de novo, Zoarab, 524 F.3d at 780, a factual

finding that Zhuang lacks credibility is a sufficient basis to deny withholding of removal and

protection under the CAT. To qualify for withholding of removal, Zhuang needed to show a “clear

probability” that his “life or freedom would be threatened . . . on account of race, religion,

nationality, membership in a particular social group, or political opinion” if he returned to China.


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Vasha v. Gonzales, 410 F.3d 863, 875 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)). To qualify

for protection under the CAT, Zhuang needed to show that “he would more likely than not be

subjected to torture after being deported” to China. Ceraj v. Mukasey, 511 F.3d 583, 594 (6th Cir.

2007) (citing 8 C.F.R. § 1208.16(c)(2)). Because we accept the IJ’s finding that Zhuang’s account

lacks credibility, Zhuang does not meet his burden of proof under either of these standards. Zhuang

is therefore not entitled to relief through either withholding of removal or CAT protection.

                                               III.

       For the foregoing reasons, the petition for review is DENIED.




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