                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2817




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                                               NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                        NO. 02-2817




                      XUI-HUA ZHU,
                                        Petitioner

                             v.

                US ATTORNEY GENERAL




                Petition for Review of an Order
             of the Board of Immigration Appeals
                         (A70-842-340)




          Submitted Under Third Circuit LAR 34.1(a)
                      October 14, 2003

   Before: SLOVITER, ROTH, and CHERTOFF, Circuit Judges

                  (Filed November 3, 2003)




                 OPINION OF THE COURT
SLOVITER, Circuit Judge.

       Petitioner Xui-Hua Zhu has filed a petition for review of the order of the Board of

Immigration Appeals (“BIA”) affirming, without a separate opinion, the decision of an

immigration judge (“IJ”) that denied Zhu asylum and withholding of removal and

re-entered a prior order of exclusion. The IJ based his decision on an adverse finding of

credibility. For the reasons that follow, we will deny the petition for review.

                                              I.

                                     BACKGROUND

       Zhu is a citizen and national of the People’s Republic of China. In 1978, Zhu

married, and in 1979 his wife gave birth to the couple’s first child, a daughter. In 1981,

Zhu’s wife became pregnant again. Zhu testified that after the local family-planning

cadre discovered this second pregnancy, it required Zhu’s wife to have an abortion. To

avoid this outcome, Zhu and his wife went into hiding at his mother-in-law’s home until a

few day before delivery, when they returned home under the belief that an abortion would

be impossible at that stage. Zhu’s wife subsequently gave birth to the couple’s second

child, a son.

       Zhu testified that a few days after the birth of the couple’s second child, the

family-planning cadre visited the couple again. They demanded that Zhu’s wife insert an

intrauterine device (“IUD”) to avoid future pregnancies. It is at this point that the facts

regarding the couple’s subsequent actions become a bit unclear. Zhu stated in his 1993



                                              2
asylum application that his wife did not receive an IUD because she was too weak to

undergo the procedure, because it was legal for those residing in the countryside to have a

maximum of two children, and because he promised not to have any more children in the

future. He again testified to these facts during direct examination by counsel in the

hearing before the IJ. During cross examination, however, Zhu testified that his wife did

insert an IUD in 1981, after the second child’s birth. Zhu’s testimony is also unclear as to

whether Zhu’s wife lost the IUD by accident roughly a year later, or had the IUD

purposely removed by a private doctor in 1984.

       In any event, Zhu and his wife had another child, a second son, on November 29,

1984. In his asylum application, Zhu stated that the pregnancy was “accidental.” App. at

10, 78. He testified, however, in front of the IJ that rumors of a new policy subjecting

those with two children to forced sterilization motivated the couple, who desired a second

son, to attempt to beget another child. He also stated that on December 3, 1984, the

family-planning cadre visited the couple once again to notify Zhu’s wife that she was to

be sterilized a few days later, and on December 6, 1984, cadre members forcibly

“dragged” Zhu’s wife away for sterilization. App. at 35-39. Three years later, Zhu was

fined by the government for having too many children.

       After paying the government penalty, Zhu left China and entered the United States

via Thailand and Mexico in 1993. He subsequently sought relief from exclusion and

deportation, and filed an application for asylum based on his wife’s alleged forced



                                             3
sterilization. In 1994, an IJ denied Zhu’s application for asylum and withholding of

deportation, but the order was never carried out. Zhu then filed a motion to reopen

immigration proceedings based upon amendments to 8 U.S.C. § 1101(a)(42) and the

BIA’s decision in Matter of C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997), which expanded the

definition of “refugee” to include individuals having undergone forced sterilization as

well as their spouses. Zhu’s daughter has since arrived in the United States. His wife and

sons remain in China.

                                             II.

                  JURISDICTION AND STANDARD OF REVIEW

       The BIA had jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b).

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1).

When the BIA affirms without opinion the IJ’s decision, such approval constitutes the

final agency determination, see 8 C.F.R. § 3.1(a)(7)(iii), and the IJ’s decision becomes the

proper subject of judicial review. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002); 64

Fed. Reg. 56,135, 56,137 (Oct. 18, 1999).

         An alien otherwise removable may remain in the United States through a grant of

asylum under § 1158(b)(1) of the Immigration and Nationality Act (“INA”) if the alien is

determined to be a refugee. The alien may demonstrate his or her refugee status by

showing that s/he suffered, inter alia, past persecution on account of one of the statutory

bases. Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003); see 8 U.S.C. §



                                              4
1101(a)(42)(A), 1158(b)(1). The IJ notes that under the expanded definition of a refugee,

an individual who has been forced to undergo an abortion or involuntary sterilization is

considered to have been persecuted based upon political opinion. App. at 7. Whether an

asylum applicant has demonstrated past persecution is a factual determination reviewed

under the substantial evidence standard. Gao, 299 F.3d at 272. We will uphold the BIA’s

findings of fact to the extent they are supported by reasonable, substantial, and probative

evidence on the record considered as a whole. Balasubramanrim v. I.N.S., 143 F.3d 157,

161 (3d Cir. 1998) (quotation and citation omitted). Likewise, adverse credibility

determinations are reviewed for substantial evidence. Id. The BIA’s adverse credibility

determination must be upheld on review unless any reasonable adjudicator would be

compelled to conclude to the contrary. Gao, 299 F.3d at 272 (quotation omitted). On the

other hand, adverse credibility determinations based on speculation or conjecture, rather

than on evidence in the record, will not be upheld. Id.

                                            III.

                                      DISCUSSION

       In this case, there was reasonable, substantial, and probative evidence in the

administrative record to support the IJ’s adverse credibility finding. Zhu argues that the

IJ’s finding of inconsistencies between Zhu’s written asylum application and his in-court

testimony are not substantiated by the hearing records. However, there are significant

discrepancies between Zhu’s application and in-court testimony, and even within the



                                             5
testimony itself, regarding the nature of the third pregnancy by Zhu’s wife and the

circumstances surrounding the insertion and removal of the IUD. It may be true that

removing the IUD did not guarantee, as Zhu argues, a new pregnancy for the couple. But

Zhu’s admission that he and his wife removed the IUD after hearing that China’s

sterilization policy would be enforced in the countryside supports the IJ’s conclusion that

the couple intended, indeed desired, a third child. It is unlikely that the third pregnancy

was “accidental” in the sense that it was unintended by Zhu and his wife.

       Zhu also argues that the IJ improperly relied on an overseas investigative report

prepared by the Immigration and Naturalization Services (“INS”) in Guangzhou, China in

assessing Zhu’s credibility. Zhu alleges several factual inconsistencies and questions the

general credibility and diligence of the INS investigation. But Zhu has provided no

evidence to support his challenge. Given other inconsistencies between Zhu’s asylum

application and in-court testimony, the IJ properly relied on the INS investigative report

in his general credibility assessment.

       Finally, Zhu argues that the IJ improperly speculated that Zhu’s wife may have

voluntarily undergone the sterilization procedure in this case. We agree that the record

provides no basis for such an assertion. However, the IJ readily conceded in his opinion

the speculative nature of this idea, and it is not a critical component of the IJ’s larger

credibility assessment; even without the speculation, there is ample evidence to support

the IJ’s adverse credibility determination.



                                               6
    For the reasons set out above, we will deny the petition for review.




TO THE CLERK:

           Please file the foregoing opinion.




                  /s/ Dolores K. Sloviter
                  Circuit Judge
