                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3905




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                                                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                NO. 03-3905
                                ___________

                            ZHONG HUI XIAO,

                                                       Petitioner
                                     v.

     JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,

                                                       Respondent

                                ___________

                  On Petition for Review of an Order of the
                    United States Department of Justice
                       Board of Immigration Appeals
                           (BIA No. A77 281 330)
                                ___________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                              October 8, 2004

     BEFORE: SLOVITER, VAN ANTWERPEN and COW EN, Circuit Judges

                          (Filed: October 18, 2004)
                                ___________

                                 OPINION
                                ___________

VAN ANTWERPEN, Circuit Judge
       Zhong Hui Xiao (“Petitioner”) seeks review of a decision of the Board of

Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”).

The IJ denied Petitioner’s application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”), finding Petitioner did not meet the statutory

requirements of the INA and that his story was not credible. The IJ also denied

Petitioner’s application for withholding of removal under the Convention Against Torture

(“CAT”), finding Petitioner failed to demonstrate that it is more likely than not that he

would be tortured upon his return to China. For the reasons set forth below, we deny the

petition.

                      I. FACTUAL AND PROCEDURAL HISTORY

       Since we write only for the parties we need not restate the facts in detail.

Petitioner is a native citizen of the People’s Republic of China (“China”). Petitioner

testified that as a commercial fisherman in China, he owned a boat along with four other

fisherman and paid a monthly tax of 3,000 RBM in connection with his occupation. On

May 18, 1999, after an extraordinarily large catch, Petitioner was approached by three tax

officials who demanded that he pay an additional 3,000 RBM. Petitioner testified that

when he refused to pay the additional money, he was struck by the officials, who then

took his day’s catch, which was worth approximately 6,000 RBM. Petitioner stated that

after this incident the tax officials did not permit him to return to work. On July 7, 1999

Petitioner fled the country.

                                              2
       On October 5, 1999, Petitioner arrived in the port of Los Angeles as a stowaway.

An asylum officer of the Immigration and Naturalization Service (“INS”) interviewed

Petitioner, determined that he had a credible fear of returning to China, and referred him

to an IJ for a full hearing on his asylum claim. On August 15, 2001, the IJ rejected his

request. On August 29, 2003 the BIA affirmed the IJ’s decision and the Petitioner timely

filed a petition for review. This Court has jurisdiction over the petition for review

pursuant to 8 U.S.C. § 1252(a)(1).

                              II. STANDARD OF REVIEW

       Although review of a final order of removal generally leads us to review the

decision of the BIA, when the BIA merely adopts the IJ’s opinion, we will review the IJ’s

decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).

       Our scope of review is narrow. We review findings of fact under the substantial

evidence standard. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this

standard, we are bound by the administrative findings of fact unless those findings would

compel a reasonable adjudicator to arrive at a contrary conclusion. See 8 U.S.C. §

1252(b)(4)(B). Because Congress delegated substantial authority under the INA to the

Attorney General, who then vested his authority in the BIA, the BIA’s reasonable

statutory interpretations are afforded deference under Chevron U.S.A. Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984). Abdulrahman v. Ashcroft, 330 F.3d 587, 591

(3d Cir. 2003).

                                              3
                                     III. DISCUSSION

          1. Eligibility for Asylum and Withholding of Removal under the INA

       To be eligible for asylum, Petitioner has the burden of establishing that he meets

the statutory requirements of refugee status. Abdille, 242 F.3d at 482. A refugee is one

who is outside his or her country of nationality and will not or cannot return “because of

persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. 1101(a)(42)(A).

Withholding of removal has a similar statutory prerequisite that makes it available only

“if the Attorney General decides that the alien’s life or freedom would be threatened in

that country because of the alien’s race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. 1231(b)(3)(A).

       To be eligible for asylum or withholding of removal under the INA, Petitioner

must show that the threats he faces arise because of one of the statutorily-protected

grounds. See Gao, 299 F.3d at 272 (citing Navas v. INS, 217 F.3d 646, 655 (9th Cir.

2000)). Although the respondent need not provide direct proof, he must provide some

evidence of those motives. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).

       Petitioner argues that he met the statutory prerequisites because he was assaulted

by government officials due to his expression of a political opinion about the increased

taxation of his larger catch and his affiliation with a social group, namely fishermen.


                                              4
However, the IJ found that the acts of which Petitioner complained only amounted to

either extortion by corrupt officials or a legitimate attempt to tax Petitioner’s abnormally

large catch of fish, and not persecution because of Petitioner’s political opinion or

affiliation with a social group. We may not disturb the IJ’s findings in this regard

because Petitioner has not produced evidence that would compel a different conclusion.

8 U.S.C. § 1252(b)(4)(B). Based on the IJ’s findings, Petitioner failed to meet the

statutory prerequisites for asylum and withholding of removal under the INA. Therefore,

we need not reach the IJ’s determination of credibility.

    2. Eligibility for Withholding of Removal under the Convention Against Torture

       The Petitioner further claims that the IJ erred in denying him relief under the CAT.

In order to succeed on an application to withhold removal under the CAT, an applicant

must demonstrate that “it is more likely than not” that he will be tortured if removed to

the proposed country. 8 C.F.R. § 208.16(c)(2). The IJ found that the evidence presented

by Petitioner was insufficient to establish a likelihood that he would be tortured. This

Court must sustain the decision of the IJ if the record provides substantial evidence to

support the IJ’s findings. Gao, 299 F.3d at 272. Given the record before us, neither

Petitioner’s claims relating to his experience as a fisherman nor his claim that he will be

tortured for violating China’s immigration laws compel us to overturn the IJ’s decision.

       For the foregoing reasons we reject the petition.



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