                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-2005

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Precedential or Non-Precedential: Precedential

Docket No. 04-3008




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                                             PRECEDENTIAL

      IN THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                   ____________________

                        No. 04-3008
                   ____________________


                        QUN ZHENG,

                                Petitioner

                                 v.

      ALBERTO GONZALES, ATTORNEY GENERAL
        OF THE UNITED STATES OF AMERICA

                   ____________________

           On Petition for Review of an Order of the
               Board of Immigration Appeals
                  (Board No. A78-864-293)
                 ______________________

          Submitted Under Third Circuit LAR 34.1(a)
                       June 30, 2005
  Before: RENDELL, BARRY and BECKER, Circuit Judges

                 Opinion Filed: July 20, 2005

CHARLES CHRISTOPHE
ALEKSANDER B. MILCH
MEER M.M. RAHMAN
Christophe & Associates, P.C.
67 Wall Street, Suite 210
New York, NY 10005
Attorneys for Petitioner
PETER D. KEISLER
Assistant Attorney General
Civil Division
LINDA WERNERY
JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Department of Justice
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
Attorneys for Respondent

                  ________________________

                   OPINION OF THE COURT
                  ________________________

BECKER, Circuit Judge.

       This is a petition for review by Qun Zheng, a native and
citizen of China, of a decision by the Board of Immigration
Appeals (BIA) affirming, without opinion, a decision by an
Immigration Judge (IJ) denying Zheng’s requests for asylum,
withholding of removal, and relief under the Convention Against
Torture (CAT). Because we find that the IJ’s decision was based
on substantial evidence, we will deny the petition for review.

                                 I.

       Qun Zheng, also known as Zhao Xin Zhu, was born in
China in 1989. He claims that his mother was forcibly sterilized
shortly after giving birth to him, because he was her third child and
she had thus violated China’s family planning policy. His father
left China in 1992, and his mother in 1997, leaving Zheng with his
grandparents. Both of Zheng’s parents came to the United States
and petitioned for asylum. Their petitions were denied, although it
appears that they both remain in the United States. See Xiu Jin
Wang v. BIA, 87 Fed. Appx. 209 (2d Cir. 2004) (unpublished
summary order).
       Zheng claims that, in April 2002, he wrote an essay called

                                 2
“My Mother” for a school assignment. Zheng’s essay was allegedly
highly critical of the Chinese government, and of his mother’s
forcible sterilization. According to Zheng, in reaction to this essay,
the principal of his school demanded that Zheng write a “self-
criticism” renouncing it. If he failed to do so, he claims, he would
be sent to a juvenile re-education camp.
        Zheng relates that the principal sent him home to write his
self-criticism, and that, after discussing the issue with his
grandparents, he decided to go into hiding at his uncle’s house. He
did so some five to eight days later, never having returned to
school. At some point after this, his grandmother came to visit
Zheng in hiding. She allegedly told him that the principal of the
school had called her and told her that if Zheng was found he
would be sent to the juvenile re-education department. She
therefore contacted smugglers to get Zheng to the United States to
be reunited with his parents. After about a week at his uncle’s,
Zheng left with a smuggler, who obtained false documents for him.
After staying in a hotel with the smuggler for some time, he left for
America, and arrived in Chicago on June 10, 2002.
        Zheng was stopped at the airport and taken into custody.
Zheng was released from custody in August 2002, and went to live
with his mother in New Jersey. In November 2002, an IJ granted
a change of venue to Newark. Before the IJ, Zheng conceded
removability and applied for asylum, withholding of removal, and
protection under the CAT. An asylum hearing was held on April 2,
2003, in Newark. Zheng presented his own testimony and some
documentary evidence, including a rewritten copy of his “My
Mother” essay (he did not have a copy of the original) and letters
from two school friends corroborating some aspects of his story.
        At the close of the hearing, the IJ rendered an oral decision.
He found that, if true, Zheng’s allegations would make out a claim
for asylum, in that he alleged a fear of persecution based on “other
resistance” to China’s family planning policy. See 8 U.S.C.
§ 1101(a)(42). But the IJ determined that Zheng had not met his
burden of establishing persecution because his testimony was not
credible. He therefore denied asylum, withholding of removal, and
CAT protection based on past persecution. He also denied CAT
relief based on Zheng’s alleged fear that, if he returned to China,
he would be tortured for leaving China illegally.
        The BIA affirmed without opinion, leaving the IJ’s opinion

                                  3
as the final agency determination. We have jurisdiction over
Zheng’s timely petition for review pursuant to 8 U.S.C. § 1252.

                                   II.

       Because the BIA affirmed without opinion, we review the
IJ’s opinion. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en
banc). The standard of review is the familiar “substantial evidence”
standard: “[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Adverse credibility
determinations are factual findings subject to substantial evidence
review. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.
2003). But credibility findings must be grounded in the record, id.,
and must be based on inconsistencies and improbabilities that go
to the heart of the asylum claim, Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002).1

                                   A.

        The IJ found numerous inconsistencies and implausibilities
in Zheng’s evidence. Zheng persuasively disputes several of the
IJ’s findings. Most notably, the IJ found it “utterly implausible”
that the principal would allow Zheng to return home to write his
self-criticism, rather than require him to write it immediately in his
office. The IJ pointed to no basis in the record, or in logic or
experience, for this finding of implausibility. “Adverse credibility
determinations based on speculation or conjecture, rather than on
evidence in the record, are reversible,” Gao, 299 F.3d at 272, and
we reject this conclusion as pure speculation.


       1
        Congress has recently revised this judicially created standard to
allow a trier of fact to find a lack of credibility based on any
inconsistency or falsehood, “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Real
ID Act of 2005, § 101(a)(3), Pub. L. No. 109-13, 119 Stat. 231, 303, to
be codified at 8 U.S.C. § 1158(b)(1)(B)(iii). This provision, however,
applies only to applications for asylum made after the effective date of
the Real ID Act, see id. § 101(h)(2), and so does not apply to Zheng’s
case.

                                    4
        The IJ also noted that Zheng’s I-589 form, part of his
written asylum application, lists his address as his grandparents’
hometown from birth until June 2002. The IJ found the lack of any
indication that Zheng lived with his uncle, or otherwise in hiding,
important: “The fact that he lived at that address before coming to
the United States, and not at the uncle’s place, or somewhere else,
is very revealing. It constricts [sic] the whole notion of flight.” The
IJ found it a “major significant inconsistency” that Zheng listed
only this one address in China.
        Zheng argues that this finding amounts to “no more than a
game of ‘gotcha’ with a juvenile Respondent.” Zheng is a teenager
who speaks little or no English; his mother read over the I-589
form before he signed it, but he apparently did not. Furthermore, as
the form asks aliens to list their “residences during the last five
years,” it would not be unreasonable for Zheng to omit places
where he stayed in hiding for no more than a few weeks. The
omission strikes us as only a minor error, and such “minor
inconsistencies and minor admissions that reveal nothing about an
asylum applicant’s fear for his safety are not an adequate basis for
an adverse credibility finding.” Gao, 299 F.3d at 272 (internal
quotation marks omitted).
        In short, we are troubled by some of the reasons underlying
the IJ’s adverse credibility finding. Nonetheless, we are bound to
uphold the IJ’s decision if it is supported by substantial evidence,
and may do so even if we reject some of its bases. See He Chun
Chen v. Ashcroft, 376 F.3d 215, 224-25 (3d Cir. 2004) (finding
substantial evidence for an adverse credibility determination
despite our “extreme discomfiture” with some of the IJ’s specific
findings).

                                  B.

       In this case, the most compelling support for the IJ’s adverse
credibility determination comes from the simple implausibility of
Zheng’s story. Zheng’s testimony, his asylum application, and his
supporting documentary evidence all strongly support the IJ’s
conclusion that this case “is all about a young boy wanting to join
his parents,” rather than about an opponent of China’s birth control
policies fleeing governmental persecution. The copy of “My
Mother” in the record, which Zheng allegedly rewrote from

                                  5
memory after arriving in the United States, creates the distinct
impression that it was written solely for asylum purposes. For a
school assignment to write about his mother, Zheng claims to have
written an essay consisting largely of criticisms of “Chinese
government cadres” and admonitions that “the cadres had better
watch their behavior and be nice to ordinary people.” The IJ was
within his rights to suspect the authenticity of this strange and
tendentious essay.
        In Jishiashvili v. Attorney General, 402 F.3d 386, 393 (3d
Cir. 2005), we explained the requirement that a credibility
determination based on “implausibility” must be “grounded in the
record”—as, for example, by reference to country conditions—in
order to avoid “speculative or conjectural reasoning.” We think that
the IJ’s implausibility determination here had some basis in the
record, in that there was evidence to support his belief that Zheng
came to America because he missed his parents, not because he
was persecuted.

                                 C.

        At all events, the IJ did not rely on implausibility alone.
Instead, he determined that, due to the inherent implausibility of
Zheng’s story, and the (relatively minor) contradictions in his
testimony, it would not be unreasonable to expect some evidence
to corroborate Zheng’s account. In Abdulai v. Ashcroft, 239 F.3d
542, 551-54 (3d Cir. 2001), we upheld the BIA’s rule on
corroboration set out in In re S-M-J-, 21 I. & N. Dec. 722 (BIA
1997). Under this rule, “(1) an applicant need not provide evidence
corroborating the specifics of his or her testimony unless it would
be ‘reasonable’ to expect the applicant to do so; but (2) if it would
be ‘reasonable’ to expect corroboration, then an applicant who
neither introduces such evidence nor offers a satisfactory
explanation as to why he or she cannot do so may be found to have
failed to meet his or her burden of proof.” Abdulai, 239 F.3d at
551.
        We find no fault with the IJ’s conclusion here that it would
be reasonable to expect corroboration of Zheng’s story. As the IJ
noted, Zheng’s grandparents and uncle are still in China, and lines
of communication remained open. Zheng did not submit any
corroboration from them. Nor did he submit any school records

                                 6
indicating that he was suspended for writing his essay.2
        Instead, he submitted letters from two friends, which
confirmed the broad outlines of his story. The IJ rejected these
letters, in part because neither mentioned Zheng’s mother’s
sterilization: they merely described “My Mother” as “reactionary,”
without saying that it concerned forced sterilization. Zheng is no
doubt correct that the IJ was unreasonable in assuming that Zheng
would have told his friends about his mother’s sterilization.
Nonetheless, we agree with the IJ that these letters have no
probative value and, in fact, harm Zheng’s case. In particular, one
of Zheng’s friends, Chang Hong Ye, stated that Zheng called him
from the United States in May 2002. In fact, Zheng arrived in this
country in June 2002, and was not released from custody until
August 2002. His own testimony was that he called Ye “[a] week
or two after I could reach my mother’s home,” i.e., in August 2002.
When confronted with this discrepancy, Zheng stated that “it’s
possible that I made a phone call while in my paternal uncle’s
home” in China in May 2002. The IJ was entitled to find that
Zheng’s initial testimony, his later backtracking, and his
corroborative evidence were in hopeless conflict, and thus
damaged his credibility.
        In sum, the IJ was confronted with an inherently implausible
story and an applicant who contradicted himself in several places.
He therefore looked for supporting evidence, and found a
suspicious lack of credible corroboration. Given these facts, we can
hardly conclude that “any reasonable adjudicator would be
compelled” to disagree with the IJ. 8 U.S.C. § 1252(b)(4)(B). We


       2
          We are sympathetic to Zheng’s argument that the IJ was merely
speculating that such records exist, but we note that the Real ID Act
largely forecloses it. The Act provides that “[n]o court shall reverse a
determination made by a trier of fact with respect to the availability of
corroborating evidence . . . unless the court finds . . . that a reasonable
trier of fact is compelled to conclude that such corroborating evidence
is unavailable.” Real ID Act of 2005, § 101(e), Pub. L. No. 109-13, 119
Stat. 231, 305, to be codified at 8 U.S.C. § 1252(b)(4). This provision is
effective immediately, and applies to Zheng’s petition. See id.
§ 101(h)(3), 119 Stat. at 305-06. We see no compelling reason to believe
that such documents would be unavailable, and therefore cannot reverse
the IJ on this point.

                                    7
will therefore uphold the IJ’s adverse credibility determination.

                                 III.

        Zheng also raises a CAT claim, arguing that he will be
tortured if he is returned to China. To the extent that Zheng claims
that he will be tortured for writing “My Mother,” the IJ’s adverse
credibility determination forecloses that claim. To the extent that
Zheng claims that he will be tortured for leaving China illegally,
we lack jurisdiction to hear his arguments, because he failed to
raise them in his appeal to the BIA. See Abdulrahman, 330 F.3d at
594-95; see also 8 U.S.C. § 1252(d)(1). Furthermore, Zheng has
pointed to no evidence, much less compelling evidence, to support
his claim that it is more likely than not that he would be tortured on
returning to China. See 8 C.F.R. § 208.16(c)(2).
        For the foregoing reasons, the petition for review will be
denied.




                                  8
