                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3072




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"Zheng v. Atty Gen USA" (2008). 2008 Decisions. Paper 1619.
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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-3072



                                   MIN HE ZHENG,
                                             Petitioner

                                           v.

             ATTORNEY GENERAL, UNITED STATES OF AMERICA



                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                BIA No. A73-532-645
              (U.S. Immigration Judge: Honorable Charles M. Honeyman)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 28, 2008

                        Before: SCIRICA, Chief Judge,
             RENDELL, Circuit Judge, and RODRIGUEZ, District Judge.*

                               (Filed February 12, 2008)



                              OPINION OF THE COURT




   *
   The Honorable Joseph H. Rodriguez, United States District Judge for the District of
New Jersey, sitting by designation.
SCIRICA, Chief Judge.

       Petitioner Min He Zheng is a native and citizen of China. He illegally entered the

United States in 1994, and promptly filed an asylum application. In 2003, he submitted a

supplementary application for asylum, withholding of removal, and protection under the

Convention Against Torture.

       Zheng testified he fled China because of the government’s coercive population

control policies. Too young to marry in China, he and his girlfriend cohabitated while in

China, resulting in several threats and sanctions by family planning officials. Eventually

his girlfriend became pregnant, and the pregnancy was forcibly aborted by the

government.

       Although finding Zheng credible, the IJ rejected Zheng’s asylum application under

Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004).1 In Chen, we held an unmarried

individual may not seek refugee status under the “past persecution” provision of 8 U.S.C.

§ 1101(a)(42)(b) based on his partner’s having been forced to undergo an abortion or

sterilization procedure. Id. at 229. Zheng’s circumstances are indistinguishable from the

petitioner’s in Chen. The IJ was correct in applying Chen, which is dispositive here.

       Citing the BIA’s decision in In re S-L-L-, 24 I. & N. Dec. 1 (BIA 2006), Zheng

contends he is nevertheless eligible for asylum under the “other resistance” provision of 8



   1
      On May 19, 2006, the BIA summarily adopted and affirmed the IJ’s decision.
Accordingly, we review the IJ’s decision. Li v. Attorney General, 400 F.3d 157, 162 (3d
Cir. 2005).

                                             2
U.S.C. § 1101(a)(42)(b). Zheng testified he continued cohabitating after paying fines to

family planning officials, but not as a means of overt resistance to China’s policies or as

an expression of his opposition. Rather, he thought making the payments rendered the

cohabitation permissible. Moreover, Zheng never took steps to have his relationship

legally recognized, and he testified that his relationship ended shortly after the coerced

abortion and he has now been married to another woman since January 29, 2001.

Accordingly, we find the facts alleged by Zheng do not constitute “resistance.” See S-L-

L- at 10-11 (identifying “relevant factors” to consider in determining whether “an

applicant claiming persecution based on an unmarried partner’s abortion must

demonstrate that he has suffered harm amounting to persecution on account of that

resistance”).

       Zheng also claims past persecution based on a beating he received while in prison

after being caught while initially attempting to flee China.2 Moreover, because his

identification documents were seized on his capture, Zheng contends he will face future

persecution if returned to China in the form of being unable to obtain a household

registration, which is critical to securing employment, housing, and more. Additionally,




   2
      Zheng also contends he suffered past persecution because of his membership in a
particular social group, which he defines as “unmarried individuals involved in intimate
relationships in violation of China’s coercive population control law.” But Zheng failed
to raise this argument at any prior time and is therefore precluded from doing so now
under the exhaustion requirement of 8 U.S.C. § 1252(d).

                                              3
Zheng contends he will face future persecution by being subjected to China’s coercive

family planning policies because he is now married and trying to have a child.

       The IJ found the facts asserted by Zheng did not amount to past persecution and

that Zheng’s fears of future persecution were too speculative. Apart from his experiences

while cohabitating with his girlfriend, Zheng testified only to an isolated instance of

mistreatment while incarcerated. The record also reveals Zheng currently does not have

children, and there is no evidence indicating he will face future persecution under China’s

family planning policies. Moreover, although Zheng believes he will be unable to obtain

a household registration, there is no objective evidence in the record to support such a

conclusion. Accordingly, substantial evidence supports the IJ’s findings.

       Finally, Zheng seeks protection under the CAT based on his fear that he will be

beaten in prison if he returns to China. Our review of the record reveals no evidence that

Zheng is likely to be singled out for torture should he return to China. Accordingly, the IJ

did not err in applying the specific intent rule of Auguste v. Ridge, 395 F.3d 123 (3d Cir.

2005), to reject Zheng’s claim under the CAT.

       For the foregoing reasons, we will deny the petition for review.




                                              4
