                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5097




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-5097


                                   HUI YUN ZHOU,

                                                             Petitioner

                                           v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,

                                                              Respondent


                         On petition for review of a decision and order
                         of the Board of Immigration Appeals
                         (BIA No. A96 241 539 Philadelphia)


                      Submitted under Third Circuit LAR 34.1(a)
                                 December 14, 2006

         BEFORE: FISHER, CHAGARES, and GREENBERG, Circuit Judges

                                (Filed: December 18, 2006)


                              OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This matter comes on before this court on a petition for review of a decision and

order of the Board of Immigration Appeals (“BIA”) dated October 27, 2005, dismissing
the appeal of Hui Yun Zhou from an order of an immigration judge (“IJ”) in removal

proceedings denying Zhou’s request for asylum under section 208 of the Immigration of

Nationality Act (“INA”), 8 U.S.C. § 1158(b)(1), withholding of removal under INA §

241(b)(3), 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention

Against Torture (“CAT”), 8 C.F.R. § 208.16. The IJ decided the matter in a

comprehensive oral opinion in which he fully detailed the legal framework and the facts

of the case as well as his conclusions. Zhou sought relief by reason of her past and

anticipated persecution attributable to the Chinese family planning policies. After

reviewing the evidence the IJ denied her all relief explaining:

               Based on the numerous examples of the total lack of credibility as
       previously noted, and the respondent’s amateurish attempt to elicit
       emotional outbursts, the Court finds that the respondent’s case in chief was
       indeed deliberately fabricated. It is evident to the Court that the respondent
       has carefully concocted her testimony, has carefully staged her presentation,
       has attempted to create a case in chief based on facts that do not exist, as
       evidenced by the contradictory evidence we have by prior testimony of her
       husband, by testimony before an Immigration asylum officer and based on
       both documentary evidence that the respondent has submitted as well as to
       previously prepared affidavits. The Court is convinced that the
       respondent’s case in chief was deliberately fabricated and clearly meets the
       definition of a frivolous application for asylum.

             Consequently, and due to the total lack of credibility of the
       respondent, I find that she has not established a well-founded fear of
       persecution as defined if she were returned to People’s Republic of China.
       Accordingly, her application for asylum will be denied.

              Because the respondent has failed to establish a well-founded fear of
       persecution, as is necessary in order to be statutorily eligible for asylum it is
       unnecessary to consider whether she merits such a relief as a matter of
       discretion. Furthermore, because she has failed to establish eligibility for

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       asylum, she has, moreover, failed to meet the higher standard of proof
       necessary for restriction on removal to the People’s Republic of China.

              Moreover, based on the evidence of record and the respondent’s
       testimony, the Court finds that the respondent has not proven that she is
       more likely than not to be tortured if she is returned to the People’s
       Republic of China.

App. at 72-73.

       On the appeal the BIA largely, but not entirely, adopted the IJ’s decision and it

found that, except in one respect, the IJ’s conclusions was not clearly erroneous. It then

nevertheless went on to comment about some of the testimony. Zhou then filed the

petition for review pursuant to INA § 242, 8 U.S.C. § 1252(a)(1).

       We deal initially with two preliminary matters. First, the petition for review

recites that Zhou seeks review of all three aspects of the BIA decision: denial of asylum;

withholding of removal under the INA; and relief under the CAT. Nevertheless Zhou’s

brief does not address her claim under the CAT. In the circumstances, we regard that

claim as abandoned, though we hasten to add that even if she advanced it she would not

have been successful in this court.

       Second, we point out that we review the challenged determinations at the

administrative level at which they were made. Thus, to the extent that the BIA made the

findings we review its product but to the extent that the BIA adopts an IJ’s findings we

review the IJ’s findings. Compare Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.

2001), with Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). Consequently,



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where, as here, the BIA partially has made its own findings and partially has adopted an

IJ’s findings we review both decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.

2004). We review the factual determinations under the substantial evidence test,

Toussaint v. Attorney General, 455 F.3d 409, 413 (3d Cir. 2006), which, as particularly

germane here, applies to credibility determinations. Chen, 376 F.3d at 222.

       Our review of this matter convinces us that we have no basis to reject the findings

of either the IJ or the BIA. In reaching this conclusion we note that a petitioner’s

credibility is crucial in a case of this kind because she has access to and knowledge of the

particular facts pertaining to her. On the other hand, the government’s germane

information is likely to be limited to knowledge of general country conditions. Thus, IJs

and the BIA must be diligent to scrutinize carefully a petitioner’s testimony in removal

proceedings and that is what they did here. Inasmuch as substantial evidence supports

their conclusions, we will not grant Zhou relief.

       The petition for review of the decision and order of the BIA dated October 27,

2005, will be denied.




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