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


4-19-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2511




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"Ou v. Atty Gen USA" (2004). 2004 Decisions. Paper 813.
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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 03-2511


                                      SHI ZHU OU,
                                       Petitioner

                                            v.

               JOHN ASHCROFT, Attorney General of the United States,
                                Respondent




        On Petition for Review of an Order of the Board of Immigration Appeals
                                   No. A77-618-727

                                       __________


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 16, 2004

            BEFORE: RENDELL, STAPLETON and LAY,* Circuit Judges

                             (Opinion Filed: April 19, 2004)




__________________

* Hon. Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


              Petitioner Shi Zhu Ou (“Shi”), a 19 year old native of the Republic of

China, petitions for review of a final order of the Board of Immigration Appeals (“BIA”)

dismissing his appeal from an immigration judge’s denial of his application for asylum,

withholding of deportation, and protection under the Convention Against Torture. We

will deny the petition for review.

              The Immigration Judge (“IJ”) summarized a portion of Shi’s testimony as

follows:

                      The respondent went on to testify that in November of
              1998 he was visiting his aunt’s house when five family
              planning officials came to take his aunt away to sterilize her
              for being pregnant with an over-quota child. The aunt object
              to being taken in this manner. The respondent testified that he
              told the officials that they were not treating her correctly, or
              criticized the way they were manhandling his aunt.
              According to the respondent, first one officer, then two others
              joined in to beat him and shoving him. In defense of himself,
              and up against the wall, he indicated he grabbed a stick.
              Although he was able to hit one of the officials hand, he was
              able to escape out the door and where he ran a spent two days
              with his friend, then he was sent on to Fuzhou City to live
              with his uncle. After staying with his friends and his uncle,
              his mother got word to him that the police were searching for
              him at their home to arrest him. He was accused of assaulting

                                             2
              family planning officials. He stayed at his uncle’s house until
              June of 1999. When questioned what he did, the respondent
              testified that he went to school and he worked part time. With
              the aid of his mother, and perhaps his uncle, he was given
              over to a man who got him aboard a small boat, and then to a
              larger boat to the United States, where he was discovered
              upon that vessel arriving in the United States. According to
              respondent, he does not know how the arrangements were
              made, nor does he know how much money was paid for his
              journey to the United States. He has spoken with his mother
              on a weekly basis since his arrival. He indicates that police
              have been still looking for him in relation to his assault, and
              also his illegal departure for the United States.

App. at 86.

              The IJ found Shi not to be credible based upon several material

contradictions in the record. First, the IJ noted discrepancies between the above-quoted

testimony and Shi’s written statement concerning the November 1998 incident, the most

important being that in his testimony SHI protested the roughness of his aunt’s treatment

but made no reference whatever to the claim in his written statement that he was

protesting the government’s family planning policies in general and his aunt’s forced

sterilization in particular. The IJ also pointed to discrepancies in Shi’s testimony about

his family’s history, family income, and the imposition and payment of the fine for over-

quota children. Finally, the IJ noted his belief “that [Shi] had been trying to memorize

what he should say to the Court, rather than recall specific accurate facts that occurred to

him in China.” App. at 89.

              The IJ ultimately concluded that, because Shi’s testimony lacked credibility,



                                              3
he had failed to carry his burden of establishing his claim to asylum, his claim for

withholding of deportation, or his claim under the Convention Against Torture.

              On administrative appeal, the BIA agreed that Shi had “failed to establish

persecution or a well-founded fear of future persecution on account of one of the five

grounds enumerated in § 101(a)(42) of the . . Act,” noting in particular that persecution

for illegally departing a country is not considered to be persecution on any of these five

grounds. App. at 2.

              The IJ’s finding that Shi lacked credibility is supported by the material

inconsistencies which he cited. Given that finding and that record support, the BIA did

not err in concluding that Shi had not carried his burden on any of his claims.

              The petition for review will be denied.




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