Zheng v. Garland ( 2021 )

Case: 20-60183 Document: 00516071607 Page: 1 Date Filed: 10/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 27, 2021
No. 20-60183
Lyle W. Cayce
Clerk
Chun Yan Zheng,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 705 834
Before King, Higginson, and Wilson, Circuit Judges.
Per Curiam:*
Chun Yan Zheng, a native and citizen of China, petitions this court for
review of the denial by the Board of Immigration Appeals (BIA) of her
application for asylum. She contends the BIA erred by dismissing her claim
for asylum on the ground that she failed to submit reasonably available
corroborating evidence. She also contends that the BIA erred in failing to
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60183
remand her case to the immigration judge (IJ) for consideration of her
parents’ statement. We deny the petition in part and dismiss it in part.
I.
Zheng arrived in the United States on February 28, 2019, without
admission or inspection. On March 5, 2019, the Department of Homeland
Security personally served Zheng with a notice to appear (NTA), charging
her with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Proceeding
pro se, Zheng admitted the allegations in the NTA and conceded
removability but requested the opportunity to apply for asylum and related
protection.
Through counsel, Zheng sought asylum, withholding of removal, and
relief under the Convention Against Torture (CAT) based on religious
persecution for joining and participating in an underground Christian family
church. Zheng supplemented her application with her own written
statement, a detention warrant, a release certificate, a ¥5,000 fine receipt, a
hospital illness certificate, her public security bureau summons, her divorce
certificate, a mailing label from Fujian province, and the 2017 International
Religious Freedom Report.
On June 17, 2019, an IJ held a hearing, at which Zheng was the only
witness. Zheng testified that she was introduced to Christianity by a friend
and co-worker, Xiu Mei Chen. She further testified that on September 9,
2018, she attended a church gathering at Chen’s home where she converted
to Christianity. Zheng attended three more Christian home gatherings, on
September 19, September 30, and October 14, 2018. At the second gathering,
Chen gifted Zheng a Bible. During this time, Zheng and her eldest daughter
were living with her parents. Zheng’s parents were aware that she attended
these gatherings and watched her daughter during her church attendance.
Zheng’s parents lived approximately 20 minutes by foot from Chen’s home.
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According to Zheng’s testimony, at the fourth and final church
gathering she attended, the police came to Chen’s home, arrested the
participants, and confiscated the participants’ belongings—including
Zheng’s Bible. The police detained Zheng for one week. During her
detention, the police grabbed her by the hair, slapped her, pushed her to the
ground, and kicked her twice. As a result, she suffered bruising and swelling.
On October 21, 2018, Zheng was released. 1 The police returned Zheng’s
belongings, except for the Bible, and instructed her to report to the police
station once a week. Zheng’s father picked her up from the police station.
Complying with the police’s instruction, Zheng reported to the police
station each week after her release. When Zheng reported to the station on
November 18, 2018, she was slapped, kicked, and threatened with arrest if
she was ever found to attend underground Christian activities again.
Following this incident, Zheng said she hid at a friend’s house until she fled
China on February 14, 2019. Zheng testified that because she was in hiding,
she did not know whether the police ever visited her parents’ home following
her failure to report.
On cross-examination, Zheng was asked why she did not provide a
statement from her parents corroborating her attendance at the church
gatherings, her arrest, the police’s confiscation of her Bible, or her hiding
from November 18, 2018, until her flight from China on February 14, 2019.
Zheng initially explained that she did not provide a statement from her
parents because they are illiterate. But Zheng later conceded that her parents
could have gotten someone else to write a letter on their behalf. Zheng
further testified that her parents in fact had someone write a letter on their
1
Zheng testified that she was unaware whether any of the other participants were
also released on this day. According to Zheng, she called Chen after she was released, but
Chen did not answer her phone.
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behalf, though they were unable to send it in time for her hearing,
notwithstanding that they had timely sent Zheng other supporting
documentation. Zheng also acknowledged that she did not provide a
statement from her friend Chen corroborating her attendance at the
gatherings and Chen’s gifting of the Bible.
The IJ denied Zheng’s claims for asylum, withholding of removal, and
CAT relief. The IJ afforded “full evidentiary weight” to Zheng’s testimony
but found that she failed to meet her burden of proof due to her failure to
proffer reasonably available corroborative evidence to support her claims.
Namely, Zheng failed to provide evidence to support her assertions that she
attended Christian gatherings, that she was arrested while attending such a
gathering, about her detention and release from jail, and that she went into
hiding for approximately four months before fleeing to the United States.
The IJ found that Zheng’s parents could have provided such corroboration
in the form of a written statement. Moreover, the IJ stated it was “not clear”
why Zheng’s friend, Chen, could not have provided a written statement
corroborating Zheng’s testimony. Accordingly, despite finding Zheng’s
testimony credible, the IJ concluded that she failed to meet her burden of
proof to establish eligibility for asylum, withholding of removal, or CAT
relief.
Zheng appealed to the BIA, challenging the IJ’s conclusion that she
did not provide sufficient corroboration for her claims. In support of her
appeal, she provided a translated written statement from her parents. Zheng
asserted that the BIA should grant relief based upon her credible testimony,
the evidence she provided in support of her application, and her newly
provided corroborating evidence.
The BIA, however, agreed with the IJ that Zheng failed to provide
reasonably available evidence to corroborate her claims. Specifically, the BIA
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concluded that Zheng failed to offer supporting evidence from her parents
and Chen as well as “sufficient evidence that Chinese authorities have looked
for her since she left China . . . or that they have a current interest in her.”
While the BIA recognized that Zheng submitted a statement from her parents
on appeal, it explained that its review was limited to the record before the IJ.
Accordingly, the BIA affirmed the IJ’s conclusion that Zheng failed to meet
her burden of proof for asylum and, consequently, did not meet her burden
of proof for withholding of removal. The BIA also held that Zheng “did not
meaningfully address” the denial of her claim under the CAT. Zheng timely
filed a petition for review, contending (1) that she submitted sufficient
corroborating evidence for her asylum claim and (2) that the BIA erred in
failing to remand the case to the IJ to consider her parents’ statement. 2
II.
We review the BIA’s conclusions of law de novo and its findings of
fact for substantial evidence. Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir.
2009). On review, we consider only the BIA’s opinion, “unless the IJ’s
decision has some impact on the BIA’s decision.” Orellana-Monson v.
Holder, 685 F.3d 511, 517 (5th Cir. 2012) (citation omitted). Where, as here,
the BIA adopts much of the IJ’s reasoning, we also review the relevant
portions of the IJ’s decision. See, e.g., Zhu v. Gonzales, 493 F.3d 588, 593 (5th
Cir. 2007).
The BIA’s determination that an alien is not entitled to asylum is a
factual conclusion subject to the substantial evidence standard of review.
Zhang v. Gonzales, 432 F.3d 339, 344–45 (5th Cir. 2005). “Under this
standard, reversal is improper unless we decide ‘not only that the evidence
2
Because Zheng does not raise any issue regarding the denial of her withholding of
removal or CAT claims, we do not further address them.
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supports a contrary conclusion, but [also] that the evidence compels it.’” Id.
at 344 (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005)). That
is, “[t]he alien must show that the evidence was so compelling that no
reasonable factfinder could conclude against it.” Wang v. Holder, 569 F.3d
531, 537 (5th Cir. 2009); see 8 U.S.C. § 1252(b)(4)(B).
III.
Zheng first contends that the BIA erred by dismissing her claim for
asylum on the ground that she failed to submit reasonably available
corroborating evidence. She asserts that because the IJ found her testimony
to be credible, “[a] requirement that she submit additional corroborating
evidence given the evidence already available in the record, and the
reasonable explanation for its unavailability, is excessive and unjustified.”
Authority provides otherwise.
The Immigration and Nationality Act, via 8 U.S.C. § 1158(b)(1)(A),
provides the Attorney General discretion to grant asylum to refugees. See
Vazquez-Guerra v. Garland, 7 F.4th 265, 268–69 (5th Cir. 2021). A refugee,
as defined by § 1101(a)(42)(A), is an alien who is “unable or unwilling to
return to” her home country “because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Pursuant to § 1158(b)(1)(B)(i),
the applicant bears the burden of proof for establishing that she is a refugee.
And § 1158(b)(1)(B)(ii) provides instruction on determining whether the
applicant has met this burden:
In determining whether the applicant has met the applicant’s
burden, the trier of fact may weigh the credible testimony along
with other evidence of record. Where the trier of fact determines
that the applicant should provide evidence that corroborates
otherwise credible testimony, such evidence must be provided unless
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the applicant does not have the evidence and cannot reasonably
obtain the evidence.
(emphasis added). The plain text of the statute thus indicates that it is up to
the trier of fact, here the IJ, to determine when an applicant must provide
reasonably available corroborating evidence for otherwise credible testimony.
By the same token, this court has previously stated that “[r]egardless
of whether an alien’s testimony is otherwise credible, the IJ may require the
submission of reasonably available evidence corroborating a claim for relief
from removal.” Avelar-Oliva v. Barr, 954 F.3d 757, 764 (5th Cir. 2020).
“Our implicit approval of the ‘requirement’ that applicants for asylum
submit corroborating evidence further implies that we approve of rejecting
applicants for the sole reason that they do not meet this requirement.” Rui
Yang v. Holder, 664 F.3d 580, 587 (5th Cir. 2011). This is exactly what
happened here.
The IJ required Zheng to provide eyewitness statements from her
parents and her friend, Chen, to corroborate key portions of her testimony in
support of her asylum claim, including that Zheng attended home church
gatherings, that Chen introduced her to Christianity and gifted her a Bible,
that Zheng’s father picked her up when she was released from detention, and
that Zheng hid at a friend’s house after she stopped reporting to police.
Zheng failed to meet the IJ’s requirement for such evidence. Therefore, we
find no error in the BIA’s affirmance of the IJ’s conclusion that Zheng failed
to carry her burden of proof as to her asylum claim.
We likewise find that the record does not compel agreement with
Zheng’s assertion that the corroborating evidence requested by the IJ was
unavailable. According to Zheng, she was unable to provide a statement from
her parents at the time of her hearing because they are illiterate; but Zheng
confirmed that her parents could have had someone transcribe a letter on
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their behalf. Zheng then asserted that her parents intended to provide a letter
along with other supporting evidence they sent, but they forgot to do so. She
explained that her mother subsequently mailed the letter on June 5, 2019, but
she had not yet received it at the time of the June 17 hearing. However, as
noted by the BIA, Zheng acknowledged that she received the other
supporting evidence from her parents in a timely manner. Finally, Zheng did
not provide adequate explanation as to why either she or her parents could
not obtain a statement from Chen.
IV.
Lastly, Zheng contends that the BIA erred in failing to remand her
case to the IJ for consideration of her parents’ belated statement. The
Government responds that Zheng failed to make this request before the BIA,
and thus it is not properly before this court. We agree that Zheng has failed
to exhaust this issue, and we therefore lack jurisdiction to consider it. See
Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018) (“[A] petitioner must
have presented an issue in some concrete way in order to put the BIA on
notice of his claim.”); Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009)
(“Petitioners fail to exhaust their administrative remedies as to an issue if
they do not first raise the issue before the BIA, either on direct appeal or in a
motion to reopen.”).
* * *
For the foregoing reasons, we DENY Zheng’s petition as to her first
issue. We DISMISS her petition for lack of jurisdiction as to her second
issue.
PETITION DENIED IN PART; DISMISSED IN PART.
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