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


5-29-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4454




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 06-4454
                                      ___________

                                   ZHI CHEN ZHAO,
                                                           Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A97-661-218)
                     Immigration Judge: Honorable Eugene Pugliese
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 7, 2008
                Before: MCKEE, NYGAARD and ROTH, Circuit Judges

                              (Opinion filed: May 29, 2008)
                                     ___________

                                       OPINION
                                      ___________


PER CURIAM

       Zhi Chen Zhao, a native and citizen of the People’s Republic of China, petitions

for review of a final order of the Board of Immigration Appeals (“BIA”). For the

following reasons, we will deny the petition for review.
                                              I.

       Zhao entered the United States without inspection on or about December 23, 2003.

He submitted an application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”)1 on March 11, 2004, claiming that he was

persecuted under China’s family planning laws. At his October 6, 2004 removal

proceedings, Zhao testified that he and his girlfriend violated the family planning policy

when his girlfriend became pregnant without obtaining a birth permit, and that in April

2003, his girlfriend was forced to have an abortion at a women’s health clinic. Six

months later, on October 10, 2003, the police arrested him for violating the birth policy,

but he did not assert that he was taken to the police station or detained. Zhao was fined

20,000 RMB for violating the policy, but did not pay, and left for the United States soon

thereafter. He testified that he believes he would be jailed and beaten if he returned to

China because he was illegally smuggled out of the country. In support of his testimony,

he submitted a household registry, a letter from his girlfriend stating that she was forced

to have an abortion in April 2003, identification cards, and an abortion certificate.

       The Immigration Judge (“IJ”) denied Zhao all requested relief. He did not make a

credibility determination, but found that Zhao did not meet his burden of proof due to his




   1
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in
the United States by the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C.
§ 1231.

                                              2
“general and meager” testimony. The IJ also made an alternative finding that Zhao could

not qualify for relief because he was not married to a woman who was forced to undergo

an abortion. See Matter of C-Y-Z-, 21 I. & N. Dec. 915, 919-20 (BIA 1997) (extending

the definition of persecution to protect spouses of persons who were forcibly sterilized).

       The BIA affirmed the IJ’s decision and adopted it “insofar as [the IJ] found that

[Zhao] had not qualified for the requested relief.” The BIA then agreed that Zhao was

ineligible for relief because he “was not legally married to his girlfriend who allegedly

had an involuntary abortion, and he did not establish that he offered any other resistance

to a coercive population control program.” The BIA also determined that Zhao’s counsel

mistakenly believed that the IJ had made an adverse credibility finding.

       Zhao, through counsel, now files a petition for review, which the government

opposes.

                                             II.

       We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.

§ 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the BIA

both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we

have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376

F.3d 215, 222 (3d Cir. 2004). While the BIA’s and IJ’s factual findings are reviewed for

substantial evidence, we review the legal conclusions de novo, subject to the principles of

deference articulated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,



                                             3
467 U.S. 837, 844 (1984). Briseno-Flores v. Attorney Gen., 492 F.3d 226, 228 (3d Cir.

2007).

         The focus of Zhao’s petition for review is his argument that the IJ made an

improper adverse credibility finding based on the vagueness of his testimony. However,

as the BIA found, the IJ did not make an adverse credibility finding; rather, he found that

Zhao’s testimony was too vague to establish his eligibility for relief. Vagueness of an

applicant’s testimony may be an independent basis for denying a claim irrespective of

credibility when the applicant does not identify facts corresponding to each of the

elements on which the applicant has the burden of proof. See Chen v. United States

Dep’t of Justice, 426 F.3d 104, 114 (2d Cir. 2005). In order to find that an applicant

failed to sustain his burden of proof due to vagueness, the IJ should probe for details in

order to create a record to support that finding. Id. Here, the IJ noted that he would have

expected to Zhao to testify about—among other things—how the government officials

knew that his girlfriend was pregnant and that he was the father of the unborn child.

Even if the IJ should have probed for any missing details, any error in this regard would

be meaningless, as the alternate basis for denying Zhao’s application is dispositive.

         The Immigration and Nationality Act states that a “person who has been forced to

abort a pregnancy or to undergo involuntary sterilization” is deemed to have been

persecuted based on political opinion. 8 U.S.C. § 1101(a)(42). The BIA has extended

this protection to the spouses of persons forced to submit to coercive family planning



                                              4
policies, see Matter of C-Y-Z-, 21 I. & N. 915, 917, 919-20 (BIA 1997), but it has not

offered similar protection to unmarried couples. This Court has upheld the BIA’s

decision not to extend relief beyond spouses. See Chen v. Ashcroft, 381 F.3d 221, 235

(3d Cir. 2004). Thus, because Zhao does not allege that he is married, and his claim of

persecution rests on his girlfriend’s abortion—not his own resistence to the family

planning policy—the IJ appropriately found that Zhao was ineligible for relief.

       Furthermore, Zhao may rightfully fear prosecution if he was illegally smuggled out

of China, but such circumstances do not establish a well-founded fear of persecution. See

Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004) (noting that a fear of prosecution

may constitute grounds for asylum if the prosecution is motivated by one of the five

enumerated factors, “and if the punishment under the law is sufficiently serious to

constitute persecution”). Finally, because the threshold for asylum is lower than those for

withholding of removal and relief under the CAT, Zhao cannot successfully challenge the

denial of those claims. Yu v. Attorney Gen., 513 F.3d 346, 349 (3d Cir. 2008).

       For these reasons, and after careful consideration of the record and the parties’

contentions, we will deny Zhao’s petition for review.




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