Jing Shan Zhang v. Attorney General ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-27-2005
Zhang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3806
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Zhang v. Atty Gen USA" (2005). 2005 Decisions. Paper 1305.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1305
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3806
________________
JING SHAN ZHANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,*
Respondent
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A77 645 120)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
April 22, 2005
Before: ALITO, SMITH and BECKER, CIRCUIT JUDGES
(Filed: April 27, 2005)
_______________________
OPINION
_______________________
PER CURIAM
*
Caption amended pursuant to Rule 43(c), Fed. R. App. P.
Jing Shan Zhang seeks review of a final order of removal issued by the Board of
Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.
Because we write only for the parties, who are familiar with the facts and
background, we will not recount them except as necessary to our discussion. Zhang, a
citizen of the People’s Republic of China, fled his country in November 1999 after
becoming involved in an altercation with family planning officials as they arrested his
sister for violating the country’s birth control policy. When Zhang attempted to enter the
United States without valid documents, he was apprehended and charged with
inadmissibility.
Appearing before an immigration judge (“IJ”), Zhang conceded his inadmissibility.
He applied for asylum, statutory withholding of removal, and relief under the Convention
Against Torture based on his fear of persecution and torture for opposing China’s birth
control policy. The IJ fully credited Zhang’s testimony, found his evidence insufficient to
support an assertion of a well-founded fear of persecution, denied his applications for
relief, and ordered him removed. On appeal, the BIA, by a single member, affirmed
without opinion. Zhang now petitions for review.1
The Attorney General has discretion to grant asylum to any alien who qualifies as a
refugee. See 8 U.S.C. § 1158(b)(1); Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir.
1
We have jurisdiction over Zhang’s petition for review pursuant 8 U.S.C. § 1252.
Because the BIA summarily affirmed without opinion, we review the IJ’s decision. See
Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc).
2
2003). For relevant purposes, a refugee is any alien who is unable or unwilling to return
to his country of nationality because of a well-founded fear of persecution on account of
political opinion. See 8 U.S.C. § 1101(a)(42); Lukwago, 329 F.3d at 167.2 Specifically,
an alien who has a well-founded fear that he will be persecuted for resisting a coercive
population control program is deemed a refugee. See 8 U.S.C. § 1101(a)(42). We review
the IJ’s factual determination that Zhang has not demonstrated a well-founded fear of
persecution under the substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266, 272
(3d Cir. 2002). Under this standard, we will uphold the IJ’s findings to the extent that
they are supported by reasonable, substantial, and probative evidence on the record as a
whole. Id.
We have reviewed the record in its entirety and find ample support for the IJ’s
conclusion that Zhang has no well-founded fear of persecution. The altercation between
Zhang and family planning officials occurred in October 1999, more than five years ago.
The altercation was completely verbal – Zhang was never physically attacked or
threatened with physical harm. No evidence of record suggests that Zhang ever spoke out
against the Chinese government or its birth control policy except on this one occasion.
2
Zhang also applied for statutory withholding of removal, which requires him to show
that it is more likely than not that he will be persecuted on account of one of the
statutorily prescribed attributes. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b);
Lukwago, 299 F.3d at 182. Because we agree with the IJ that Zhang failed to satisfy the
standard for asylum, as explained herein, he necessarily fails to meet the standard for
statutory withholding of removal. See Lukwago, 299 F.3d at 182. To the extent Zhang
also applied for relief under the CAT, we find no evidence giving rise to a claim of
torture. See 8 C.F.R. § 208.16(c).
3
This single incident occurred because he came to the defense of his sister, who remains in
China with her husband. No evidence suggests that Zhang was charged with a crime or
arrested, or that any outstanding warrant for his arrest exists. We agree with the IJ that
Zhang has fallen far short of demonstrating a well-founded fear of persecution if returned
to China.
For these reasons, we conclude that the IJ’s findings are supported by reasonable,
substantial, and probative evidence on the record as a whole. Accordingly, we will deny
Zhang’s petition for review.