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


4-19-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2183




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                                            NOT PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


         Nos. 03-2183 and 03-3123


             SONG ZHANG,
             Petitioner in No. 03-2183

                     v.

           JOHN ASHCROFT,
         ATTORNEY GENERAL,
                   Respondent


             SONG ZHANG,
             Petitioner in No. 03-3123

                     v.

JOHN ASHCROFT, ATTORNEY GENERAL;
    BUREAU OF CITIZENSHIP AND
      IMMIGRATION SERVICES,
                  Respondents


    Petitions for Review of Orders of the
   Immigration and Naturalization Service
       Board of Immigration Appeals
           (BIA No. A76-141-839)


 Submitted Under Third Circuit LAR 34.1(a)
              April 15, 2004
              Before: RENDELL, STAPLETON and LAY*, Circuit Judges.

                                  (Filed April 19, 2004)




                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Song Zhang, a citizen of China, petitions for review of two decisions issued by the

Board of Immigration Appeals (“BIA”). In the first decision, the BIA affirmed without

opinion the findings of an Immigration Judge (“IJ”) that Zhang lacked credibility and

therefore was not qualified for withholding of removal. In the second decision, the BIA

denied Zhang’s motion to reopen because Zhang failed to produce material evidence that

was not previously available. We have jurisdiction under 8 U.S.C. § 1252. We will

affirm the decision pertaining to Zhang’s claims for withholding of removal and will deny

the petition for review.

       In June 1995, Zhang entered the United States as a nonimmigrant with

authorization to remain in the country for one month. Four years later, in July 1999,

Zhang was arrested and placed in removal proceedings for overstaying his visa. He

subsequently conceded removability but filed claims for relief from removal because of




*Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.

                                            2
persecution on account of his affiliation with the Falun Gong movement. 1

       At his hearing before the IJ, Zhang testified that he first became interested in the

movement in May 1997, when the owner of a New Jersey restaurant he worked for gave

him a book about the Falun Gong. In addition, at around the same time, Zhang received a

letter from China written by his father-in-law, a Falun Gong practitioner, inviting Zhang

to learn more about the movement. Zhang further testified, however, that it was not until

August 1999, one month after he was arrested by U.S. immigration officials, that he

formally began the Falun Gong practice.

       Zhang also testified that, upon his arrest, he did not mention to immigration

officials that he was affiliated with or had any interest in the movement, nor did he tell

them that he feared persecution by the Chinese government on account of his religious

beliefs – this despite the fact that the officials asked him about his feelings regarding his

possible return to China.

       In her oral opinion, the IJ stated that she was unpersuaded by Zhang’s testimony

and believed that Zhang’s membership in the Falun Gong was insincere, noting “the

motivation that [Zhang] had for joining Falun Gong in August of 1999 was to have some




  1
   Falun Gong “‘blends aspects of Taoism, Buddhism, and the meditation techniques of
Qigong (a traditional [Chinese] martial art) with the teachings of Li Hongzhi.’” Gao v.
Ashcroft, 299 F.3d 266, 267 (3d Cir. 2002) (citing U.S. Dep’t of State, Human Rights
Report for 1999, China, February 25, 2000). The Chinese government has declared Falun
Gong illegal, and has reportedly subjected its followers to various forms of persecution.
Gao, 299 F.3d at 268.

                                              3
method of seeking asylum in the United States of America.” Accordingly, the IJ denied

Zhang’s application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”), but granted his request for voluntary departure.

The BIA subsequently affirmed the IJ’s findings without opinion. Zhang later filed a

motion to reopen, which the BIA denied on June 30, 2003. This timely appeal followed.

       The Attorney General may grant asylum to any alien who is unable or unwilling to

return to his home country “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). The burden to prove a well-founded fear

of persecution lies with the applicant, who must demonstrate that he or she has a genuine

fear of persecution, and that a reasonable person in the same circumstances would

similarly fear persecution if returned to his or her native country. See Gao, 299 F.3d at

272. The applicant’s own testimony may be sufficient to establish eligibility for asylum,

as long as his testimony is “credible.” 8 C.F.R. § 208.13(a); Gao, 299 F.3d at 272.

       Where the BIA affirms without opinion, we review the IJ’s decision. Gao, 299

F.3d at 271. Our review is limited to ensuring that any findings are supported by

substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Dia v. Ashcroft,

353 F.3d 228, 247 (3d Cir. 2003) (en banc). W e may reverse the IJ’s decisions only if

“any reasonable adjudicator [would] be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S. at 481 n.1.



                                             4
       Zhang’s primary argument on appeal is that the IJ erred in finding that his belief in

the Falun Gong movement was insincere.2 In support of this argument, he contends that:

1) the reason he did not begin the formal practice of Falun Gong until August 1999 was

that his work prevented him from attending group exercise meetings on Sundays, and 2)

the reason he did not tell immigration officials that he was affiliated with the movement

upon his arrest was that the Chinese government had not yet begun to suppress the Falun

Gong at that time.3

       With regard to the first contention, as the IJ noted in her opinion, there is no

evidence that Zhang ever inquired whether he could change his work schedule so that he

  2
    Zhang also argues that the BIA abused its discretion in denying his motion to reopen
because he presented new and previously unavailable evidence of his membership in the
Falun Gong. In reviewing a denial by the BIA of a motion to reopen an immigration case,
we review the BIA’s decision for abuse of discretion. INS v. Abudu, 485 U.S. 94, 105
(1988). Under this standard, we will reverse only if the decision is “‘arbitrary, irrational,
or contrary to law.’” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002) (quoting
Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)). These types of motions “shall not be
granted unless it appears to the Board that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the former hearing.”
INS v. Doherty, 502 U.S. 314, 323 (1992) (citing 8 C.F.R. § 3.2 (1987)).
        The evidence in question consists of photographs previously submitted by Zhang
at his removal hearing, allegedly depicting him participating in a Falun Gong march in
New York. It also includes an unauthenticated letter from a Falun Gong practitioner
which contains a poetic verse about the movement but says nothing about Zhang or his
involvement in the Falun Gong. Because the photographs were already presented at a
former hearing, and because the letter is not material, we find that this argument lacks
merit; thus, we conclude that the BIA did not abuse its discretion in denying Zhang’s
motion to reopen.
  3
   Zhang further contends that various reasons in the IJ’s opinion are illogical and are
based on unfair inferences. Although we find that parts of the opinion are digressive,
when considered as a whole, the opinion is adequate and is based on valid reasoning.

                                              5
could practice Falun Gong exercises on Sundays – this despite the fact that the owner of

the restaurant where he worked was one of the people who had encouraged him to learn

about the movement and thus may have been willing to accommodate him. Furthermore,

there was no evidence offered to explain why Zhang’s work schedule shifted in August

1999, suddenly making it possible for him to begin the formal practice of Falun Gong.

       Second, with respect to Zhang’s contention that he did not tell U.S. immigration

officials about his affiliation with or his interest in the Falun Gong movement upon his

arrest in July 1999 because the Chinese government had not yet begun to suppress Falun

Gong practitioners at that time, we cannot find fault with the IJ’s rejection of this

argument. Later in his testimony, Zhang conceded that at the time of his arrest, he was

aware that Falun Gong practitioners had been arrested in China in April 1999.

Additionally, this Court has observed that the Chinese government officially banned the

Falun Gong in July 1998, an entire year prior to Zhang’s arrest. See Gao, 299 F.3d at

268.

       We find no reason to disturb the IJ’s adverse credibility finding or her subsequent

determination that Zhang does not qualify for asylum.4 Accordingly, we will AFFIRM


  4
    Thus, Zhang’s claim for withholding of removal must necessarily fail, because the
standard for such a claim is more stringent than that required for an asylum claim. See
Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (noting that the standard is a “clear
probability” that the applicant will be persecuted if returned to his native country).
Moreover, Zhang’s claim for protection under the Convention Against Torture (“CAT”),
1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), also cannot stand, because there is no evidence
in the record to indicate that it is “more likely than not that [Zhang] . . . would be tortured

                                               6
the decision of the Board of Immigration Appeals pertaining to Zhang’s claims for relief

from removal, and we will DENY the petition for review.




if removed to [China],” which is the requisite standard for CAT claims. 8 C.F.R. §§
208.16(c)(2); Abdulrahman v. Ashcroft, 330 F.3d 587, 591 n.2 (3d Cir. 2003).

                                            7
