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


7-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1624




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 03-1624
                                      ___________

                                  BAO DIAN ZHENG,

                                                      Petitioner

                                             v.

                                 JOHN ASHCROFT,
                         Attorney General of the United States,

                                                    Respondent

                                      ___________

                      On Petition for Review of a Final Order from
                          the Board of Immigration Appeals
                               U.S. Department of Justice
                       Executive Office for Immigration Review
                                (BIA No. A72-563-323)
                                      ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     May 6, 2004

   Before: SLOVITER and FUENTES, Circuit Judges and POLLAK*, District Judge.

                               (Opinion Filed: July 6, 2004)
                              ________________________
* The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.

                               OPINION OF THE COURT
                              ________________________
FUENTES, Circuit Judge:

       Petitioner Bao Dien Zheng entered the United States on or about November 11, 1991

and applied for admission with a passport that did not reflect his true identity or nationality.

He was paroled into the United States to pursue an application of asylum, which he filed in

1992. Zheng is a native and citizen of the People’s Republic of China. He claims that his

wife was forcibly sterilized on December 7, 1984, after refusing an Intrauterine Device

(“IUD”) and bearing a second child in hiding. Zheng claims that because of his violations

of birth control policy he was fined, lost his job and was threatened with detention.

       After an interview on December 18, 1997, the Asylum Office found Zheng’s story not

to be credible, and on November 3, 1998, the INS commenced removal proceedings against

Zheng. He was charged with being subject to removal under INA § 212(a)(7)(A)(i)(I), 8

U.S.C. § 1182 (a)(7)(A)(i)(I), as an alien who, at the time of application for admission, was

not in possession of a valid entry document and a valid travel document. Zheng conceded

removability, and his ineligibility for voluntary departure due to his status as an arriving

alien, but renewed his application for asylum. Although the IJ found that Zheng’s allegations

established asylum eligibility under Matter of C-Y-Z-, 21 I & N Dec. 915 (BIA 1997), he

found Zheng’s testimony not to be credible and therefore denied him eligibility for asylum.

The IJ also found that in light of the adverse credibility finding and the fact that Zheng did

not present evidence sufficient to establish the probability that, if he were to return to China,

he would be tortured, his application for protection under the Convention Against Torture

(“CAT”) should also be denied.



                                               2
       Zheng appealed to the Board of Immigration Appeals (“BIA”), arguing that the IJ’s

credibility finding was made in error, and that Zheng established eligibility for asylum,

withholding of removal, and protection under the CAT. Zheng also filed a motion to remand

his case to the IJ for readjustment of status. Although as an arriving alien, Zheng would

ordinarily be ineligible to adjust status, he argued that he falls within the exception to the

definition listed at 8 CFR § 1.1(q), which except aliens who were paroled into the United

States before April 1, 1997, for purposes of INA § 235 (b)(1)(A)(I). The BIA affirmed the

decision of the IJ, noting that Zheng was not credible. The BIA also denied Zheng’s request

for remand, finding Zheng to be an “arriving alien” and therefore ineligible to adjust status

under 8 CFR § 245.1(c)(8).

       Zheng now appeals from the denial of asylum, withholding of removal and relief

under the CAT, as well as the BIA’s denial of his motion to remand. He claims that the BIA

committed legal error in finding that Zheng is an “arriving alien” prohibited from adjusting

his status, and erred in holding that Zheng did not demonstrate a well-founded fear of

persecution.1

       The BIA affirmed the IJ’s adverse credibility determination, noting that substantial

inconsistencies between Zheng’s affidavit and asylum application, and significant

contradictions between his testimony and documentary evidence, all concern his wife and

children, elements central to his asylum application. Specifically, in his asylum application,


  1
    Zheng also argues that his due process rights were violated by the IJ’s reliance on
statements allegedly prepared by a travel agent but attributed to Zheng. We do not,
however, have jurisdiction to consider this constitutional claim, as it was not raised before
the BIA. Massieu v. Reno, 91 F.3d 416, 419 (3d Cir. 1996)

                                              3
Zheng states that he had four children, two of which were given up for adoption, while in his

testimony before the asylum officer, Zheng states that two of his wife’s pregnancies ended

in miscarriage, and she was sterilized after the birth of her second child. Furthermore, it is

not until his 1999 statement that Zheng alleges that officials sought to have him sterilized ,

in addition to his wife, and that she went into hiding at her mother’s house to avoid insertion

of an IUD after her first child was born. The addition of new allegations in later applications

“can be viewed as inconsistencies providing substantial evidence that the applicant is not a

reliable and truthful witness.” Oforji v. Ashcroft, 354 F.3d 609, 614 (7th Cir. 2003) In an

attempt to explain these inconsistencies, Zheng alleges in his testimony that his initial

application was prepared by a rushed co-worker, and his 1997 application by an ill-informed

travel agent. Then, in his 1999 affidavit, he alleged that “his former lawyer” prepared the

1997 statement without reading it back to Zheng before he signed it. The IJ reasonably found

these inconsistent explanations unconvincing. Furthermore the registration documents and

sterilization certificate provided by Zheng contradicted his testimony and were internally

inconsistent, and when asked by the IJ, Zheng provided no satisfactory explanation.

Administrative Record, 137-138. Because we conclude that there was substantial evidence

to support the BIA’s adverse credibility determination, we will affirm.

       The BIA’s determination that Zheng was an “arriving alien” and therefore ineligible

for a status adjustment as per 8 CFR § 245.1(c)(8) is consistent with the regulations. Zheng

directs our attention to 8 CFR § 1.1(q) which provides that an alien paroled before April 1,

1997 shall not be considered an “arriving alien” for purposes of section 235(b)(1)(A)(i).



                                              4
However, as the BIA found, although Zheng falls under that exception, it has no effect

beyond exempting him from expedited removal under section 235(b)(1)(A)(i). The exception

is explicitly limited to that section, and Zheng remains an “arriving alien”with respect to the

application of all other sections of the INA. We review this interpretation of the regulations,

explicated by the BIA in its opinion, de novo, but we give controlling weight to the BIA’s

interpretation unless it is plainly erroneous or inconsistent with the regulation. Because we

conclude that the BIA correctly interpreted the regulations, we affirm their denial of Zheng’s

request for remand to adjust his status.




_____________________________




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