Zheng v. Atty Gen USA , 104 F. App'x 251 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-16-2004
Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3237
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"Zheng v. Atty Gen USA" (2004). 2004 Decisions. Paper 493.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case. No: 03-3237
WEI ZHENG,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES
Respondent
_______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(No. A73 648 145)
_______________
Submitted Pursuant to Third Circuit LAR 34.1
June 18, 2004
Before: Alito, Smith, and Wallace, Circuit Judges*
(Filed: July 16, 2004)
_________________
OPINION OF THE COURT
_________________
WALLACE, Senior Circuit Judge.
*
The Honorable J. Clifford Wallace, Senior United States Circuit Judge for
the Ninth Circuit, sitting by designation.
Wei Zheng, a native and citizen of the People’s Republic of China, petitions
for review of the Board of Immigration Appeals’ (Board) final removal order
affirming the denial of his application for asylum and withholding of removal.
The Board exercised jurisdiction pursuant to 8 C.F.R. § 3.1(b)(3) (2002) (now
codified at 8 C.F.R. § 1003.1(b)(3)), and we have jurisdiction over Zheng’s timely
filed petition pursuant to 8 U.S.C. § 1252(a)(1).
The Board held that Zheng has not established “a well-founded fear of
future persecution on account of . . . religion,” Miah v. Ashcroft, 346 F.3d 434,
438 (3d Cir. 2003), quoting 8 U.S.C. § 1102(a)(42)(A), because he has not shown
that public security officials would single him out for ill-treatment due to his
activities in a Chinese Christian congregation. Although the Board found the IJ’s
adverse credibility determination to be unsupported by the record, it rejected
Zheng’s claim because his testimony and lack of corroborating evidence at the
deportation hearing did not meet the requisite burden of proof. This assessment of
Zheng’s persecution claim is “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Lukwago v. Ashcroft, 329 F.3d 157,
167 (3d Cir. 2003), quoting 8 U.S.C. § 1252(b)(4)(B). Since the record does not
compel a conclusion that Zheng has a well-founded fear of future persecution or
any other valid claim to relief, we deny his petition for review.
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Zheng testified that public security officials interrupted and disbanded a
Christian meeting he attended and arrested the congregation’s pastor. Several
days later, Zheng allegedly gathered contributions from his fellow parishioners
and negotiated for the pastor’s release through a third party. Zheng expresses
concern that police might subject him to future persecution due to the prominent
role he played in freeing the pastor. The Board correctly determined, however,
that this fear was objectively unreasonable given Zheng’s admission that the
congregation resumed regular worship services after the pastor’s release without
suffering any fresh reprisals from Chinese authorities. See id. at 175 (recognizing
that the term “well-founded fear” requires “objective evidence that persecution is a
reasonable possibility”).
Zheng contends that his fear of future persecution is well-founded in light of
a police assault on his father. The assault allegedly occurred during a community-
wide search for Falun Gong members when investigators sought to ascertain
“whether or not such a person might be hiding in [Zheng’s father’s] house.” After
Zheng’s father declined to reveal the whereabouts of his missing son, the
investigating officers “just started beating him up.” Although this episode
illustrates public security officials’ religious intolerance and brutality, it does not
clearly establish that they knew of Zheng’s Christian religious activities, nor does
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it prove that they would likely persecute Zheng as a Christian following his
removal to China. Thus, Zheng’s testimony concerning his father’s injuries does
not establish a well-founded fear of future persecution as required to qualify for
asylum and withholding of deportation. See Zubeda v. Ashcroft, 333 F.3d 463,
469-70 (3d Cir. 2003) (“[I]f an alien fails to establish the well-founded fear of
persecution required for a grant of asylum, he or she will, by definition, have
failed to establish the clear probability of persecution required for withholding of
deportation.”).
Zheng also argues that the Board violated his due process rights by rejecting
his persecution claims without affording him an opportunity to explain why he did
not provide additional evidence corroborating his testimony. In Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001), we explained that “due process
requires three things” in the context of deportation proceedings. “An alien: (1) is
entitled to factfinding based on the record produced before the decisionmaker and
disclosed to him or her; (2) must be allowed to make arguments on his or her own
behalf; and (3) has the right to an individualized determination of his or her
interests.” Id. (internal citations, quotation marks, and brackets omitted). Here
Zheng “does not contend that the decision to exclude him was based on evidence
that was kept secret from him, or that he was prevented from making his case to
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the [Board] or the IJ.” Id. Neither does he dispute that the Board made “an
individualized determination of his . . . interests.” Id. Thus, we are satisfied that
the Board afforded Zheng an adequate “opportunity to be heard at a meaningful
time and in a meaningful manner,” which is all the process to which he was
entitled under the Fifth Amendment.
PETITION DENIED.
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