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


10-20-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1293




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No: 03-1293

                                  LIANGMING ZHAO,

                                              Petitioner

                                              v.

    John Ashcroft, ATTORNEY GENERAL OF UNITED STATES OF AMERICA,

                                             Respondent

                  On Petition for Review of an Order of Removal from
                            the Board of Immigration Appeals

                                    File: A78-206-646


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 20, 2004

                 Before: McKEE, ROSENN and WEIS, Circuit Judges

                            (Opinion filed: October 20, 2004)

                                           OPINION

McKEE, Circuit Judge.

       Liangming Zhao petitions for review of the Board of Immigration Appeals’

removal order. Because we find that the BIA’s decision is supported by substantial

evidence, the decision will be affirmed.

                                             I.
       Zhao is a native and citizen of the People’s Republic of China. A.R. 29. He

entered the United States on M arch 13, 1999 and obtained a non immigrant B2 visitor’s

visa which permitted a one month stay. Zhao thereafter submitted an application for

asylum and withholding of removal based on his religious beliefs and China’s family

planning policies. A.R. 334. In the affidavit attached to his application, Zhao alleged

that he and his mother were Christians and that they had attended a government

sponsored church in China. According to Zhao, when church members grew dissatisfied

with the Communist party’s influence over the church’s religious activities, Zhao’s

mother began holding services in her home. A.R. 342. She stopped hosting these

religious gatherings in response to pressure from the police and Zhao then began having

them at his own home. Zhao alleges that he was detained for 15 days after the police

raided his home during one of these worship services in June of 1997. Later that year in

December, Zhao was allegedly sent to a reeducation labor camp for one year after the

police raided his home for a second time. Zhao alleges that he was tortured and forced to

work at the camp and that his wife was forced to have an abortion. He also claims that

the authorities threatened them both with sterilization for violating China’s family

planning policy. Id.

       Zhao conceded removability before the Immigration Judge but argued his claim of

asylum and withholding of removal. He also asked for relief under the Convention

Against Torture but requested voluntary departure in the alternative. During the removal



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hearing, Zhao testified that his wife gave birth to their first child on October 6, 1991.

A.R. 81. Six months later, his wife was required to have an Intrauterine Device.

However, when she went to have the IUD inserted, the clinic allegedly discovered that

she was again pregnant and forced her to have an abortion. A.R. 113-114. According to

Zhao, his wife’s heart problems caused her to have the IUD removed at a private clinic.

Zhao testified that his wife subsequently became pregnant and gave birth to their second

daughter.1 A.R. 117.

       The Immigration Judge found that Zhao lacked credibility, denied his applications

for asylum, withholding of removal, relief under the Convention Against Torture and

voluntary departure; and ordered his removal from the United States. A.R. 44. The IJ’s

adverse credibility finding was based on several factors including the fact that Zhao could

not precisely remember when his wife was forced to have an abortion, Zhao’s lack of

detail and corroboration documentation, internal contradiction in Zhao’s testimony, the

fact that Zhao was able to keep his passport while at the labor camp and did not have

problems with Chinese authorities when he left China, the fact that Zhao was not wanted

in China and his family has never been imprisoned; and Zhao’s lack of knowledge about

the Christian religion despite his testimony about involvement with, and attendance at,

religious services. A.R. 38-42.



   1
    Zhao alleges that his eldest daughter has a brain tumor and that she cannot benefit
from the national health care system because they violated the family planning policy.
A.R. 123.

                                              3
       The IJ also explained that even if he had found Zhao credible, he would still have

denied Zhao’s applications for relief because Zhao’s experiences with officials in China

did not constitute “persecution”, A.R. 42-43. Finally, the IJ held that even if the record

established “persecution,” Zhao would not be entitled to relief because the record

established that conditions have changed in China since Zhao left. Specifically, the IJ

found that based on State Department reports, Chinese authorities would now permit

Zhao’s participation in religious gatherings in the home. A.R. 42-44. The BIA issued a

per curiam order affirming the IJ’s decision without opinion pursuant to 8 C.F.R. §

1003.1(e)(4) on January 10, 2003. This appeal followed.


                                             II.

       We have jurisdiction to review final orders of an administrative agency.
8 U.S.C. § 1252 (a)(1). Administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to reach a contrary conclusion. Dia v.

Ashcroft, 353 F.3d 228, 247-48 (3d Cir. 2003) citing 8 U.S.C § 1252(b)(4)(B). We affirm

the IJ’s findings as long as they are supported by “substantial evidence.” “Substantial

evidence is more than a scintilla, and must do more than create a suspicion of the

existence of the fact to be established.” Id. at 248. The Supreme Court has stated that

substantial evidence “means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” N.L.R.B. v. Columbian Enameling & Stamping Co.,

306 U.S. 292, 300 (1939).


                                             4
                                              III.

       To establish a claim for asylum or withholding of removal, an applicant must

establish that he/she is a “refugee.” 8 C.F.R. § 208.13(a). A “refugee” is defined as:

       Any person who is outside any country of such person's nationality
       or, in the case of a person having no nationality, is outside any country
       in which such person last habitually resided, and who is unable or
       unwilling to return to, and is unable or unwilling to avail himself or
       herself of the protection of, that 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).

       An alien can prove that he/she has a “well founded” fear if a reasonable person in

the alien’s circumstances would fear persecution. A rebuttable presumption of a well

founded fear is established if an alien can prove past persecution. 8 C.F.R. §

208.13(b)(1). However, the presumption can be rebutted if there has been a “fundamental

change . . . in the applicant’s country.” Id. at (i)(A).

       To obtain withholding of removal, the alien must establish that his/her life or

freedom “would be threatened” because of one of the aforementioned statutory grounds if

he/she were forced to return home. 8 U.S.C. § 1231(b)(3). This means that the alien

must demonstrate a “clear probability” that he/she would be subject to persecution upon

removal. INS v. Stevic, 467 U.S. 407 (1984).

                                               III

       Our review of this record establishes that the IJ’s conclusion is supported by



                                               5
substantial evidence. Nevertheless, although we affirm the decision of the IJ because it is

supported by substantial evidence, we think it necessary to note our concern with one

aspect of the IJ’s decision. The IJ states that there is a contradiction between the dates of

Zhao’s employment listed on his I-589 form and Zhao’s testimony regarding when he was

allegedly held in the labor camp. A.R. 41. Zhao testified that he was sent to the labor

camp in December of 1997. A.R. 103- 104. The IJ believed Zhao was employed until

March 1999. A.R. 134. However, Zhao lists his employment in China as being from

1986 until December 1997. A.R. 335. That is not inconsistent.

       We are also concerned that the IJ expected formal documentation of the abortion

and sterilization of Zhao’s wife. Patients are not given documentation of medical

procedures even in the highly documented and computerized medical world in the United

States. The record does not establish that it would be reasonable to expect Zhao to have

documentation for that kind of medical procedure in China.

       The IJ also appears to have ignored information from the 1998 country profile that

corroborates Zhao’s testimony regarding fear of persecution. For example, the profile

states that “unregistered Christians in China include . . . ‘house church’ Protestants.”

       Repression . . . has reflected official concern over the Government’s
       inability to control the rapid growth of membership in Christian groups.
       Local authorities have used threats, demolition of unregistered property,
       fines, interrogation, detention and reform-through-education sentences.
A.R. 162.
       However, notwithstanding these concerns, substantial evidence remains to support



                                              6
the finding that Zhao was not credible. For example, the IJ’s concerns regarding the other

discrepancies between Zhao’s I-589 and his testimony are supported by the record. The

IJ’s concern regarding the vague nature of testimony regarding torture is appropriate, and

concern over whether a photo of a worship meeting was staged is supported by the Zhao’s

own testimony. A.R. 128-34, 146-47.

                                           IV.

       Based on the foregoing analysis, we will affirm the BIA’s decision.




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