Xiao Qing Zheng v. Attorney General , 327 F. App'x 376 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-21-2009
Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2375
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"Zheng v. Atty Gen USA" (2009). 2009 Decisions. Paper 1341.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2375
___________
XIAO QING ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A97 959 073
Immigration Judge: Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 20, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: May 21, 2009)
___________
OPINION
___________
PER CURIAM
Xiao Qing Zheng petitions for review of an order of the Board of Immigration Appeals
(BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) final removal order. We
will deny the petition for review.
Xiao Qing Zheng entered the United States without proper documentation. Zheng
conceded removability, but sought asylum and related relief,1 based on his fear of persecution
as a Falun Gong practitioner. Zheng testified that he worked at a bookstore where Falun Gong
materials were sold. The police came and thought that Zheng was attempting to escape, so they
beat him. After a hearing, an IJ found that Zheng was not credible, and alternatively, found
that Zheng had not established that any persecution he had experienced was on account of a
statutorily-protected ground.2
Zheng filed a notice of appeal which stated the reason for the appeal, in full, as follows:
The Honorable Immigration Judge erred in denying Respondent’s applications
for political asylum, withholding of removal, and withholding under the CAT.
The Respondent respectfully reserves the right to adduce additional arguments on
appeal.
A.R. 18. Zheng’s brief to the BIA reiterated Zheng’s story about having been beaten by the
police in China, set forth the applicable law, and then stated, in part, “If Respondent practiced
Falun Gong in China, as he testified he did, or if he attempted to practice it upon returning to
China, he would face a substantial likelihood of persecution.” A.R. 10. He also argued that he
should not be forced to hide his Falun Gong activities in China. A.R. 10-11. The brief did not
contain any argument regarding the IJ’s adverse credibility finding.
The BIA adopted and affirmed the IJ’s decision. The BIA noted that Zheng had not
contested the IJ’s adverse credibility finding, and thus found the argument waived. Zheng filed
1
Zheng’s brief does not challenge the denial of withholding of removal or withholding
under the Convention Against Torture (CAT). As he has waived review of those forms of
relief, we do not discuss them further. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.
2004).
2
The IJ noted that the police had no reason to believe that Zheng was a Falun Gong
practitioner and did not state that they were seeking to arrest him on that basis. A.R. 33.
2
a timely, counseled petition for review.
A petitioner must “raise and exhaust his . . . remedies as to each claim or ground for
relief if he . . . is to preserve the right of judicial review of that claim.” Abdulrahman v.
Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003); 8 U.S.C. § 1252(d)(1) (court may review final
order of removal only if “the alien has exhausted all administrative remedies available to the
alien as of right”). As noted above, Zheng made no argument in his brief to the BIA
challenging the adverse credibility finding; nor did he raise the issue in his notice of appeal to
the BIA. Cf. Hoxha v. Holder, 559 F.3d 157, 163 (3d Cir. 2009) (finding issue exhausted
where alien had clearly identified issue in his notice of appeal to BIA).
Zheng’s failure to exhaust his administrative remedies concerning the adverse credibility
finding bars our review of this claim. Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir.
2005). We will therefore deny the petition for review.3
3
We further lack jurisdiction to consider the IJ’s alternative holding that Zheng failed
to establish a nexus to a protected ground. Because we cannot review the adverse
credibility finding, even if we were to reject the alternative holding, Zheng would remain
removable on the basis of the adverse credibility finding. Douglas v. Ashcroft, 374 F.3d
230, 235 (3d Cir. 2004). In any event, we would find the issue waived, as Zheng has not
made any argument regarding the alternative holding in his brief before this Court. Chen,
381 F.3d at 235.
3