Xue Rong Zheng v. Eric H. Holder, Jr. , 315 F. App'x 570 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0178n.06
Filed: March 4, 2009
No. 08-3355
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
XUE RONG ZHENG, )
)
Petitioner, )
) PETITION FOR REVIEW OF AN
v. ) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., United States Attorney )
General, )
)
Respondent.
Before: SILER, COOK, and McKEAGUE, Circuit Judges.
SILER, Circuit Judge. Xue Rong Zheng petitions for review of the decision of the Board
of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) denying his
application for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). He argues that (1) he was credible; (2) he established a well-founded fear of future
persecution; and (3) the BIA abused its discretion by not reopening and remanding the proceedings
to the IJ. For the following reasons, we DENY the petition for review.
I. BACKGROUND
Zheng, a native and citizen of the People's Republic of China, entered the United States in
1990 or 1993 without inspection. In 1993, he filed an application for asylum, withholding of
removal, and protection under CAT.
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At his removal hearing, he claimed that he left China in 1989 because he feared that he would
be arrested for participating in student demonstrations when he was 13 years old. He attended with
his cousin who was arrested after the last demonstration and imprisoned for ten years. A couple of
days later, the police came to Zheng’s house to arrest him, but he was not home. The police told his
father that Zheng was to report to the police station. Instead, he and his father hid at a friend’s house
until Zheng left for the United States. After Zheng left, his father was arrested, detained for half a
year, and beaten up while in detention. After being released, his father learned that he had lost his
job at a state-run factory and that Zheng had been dismissed from school. Zheng’s father and
younger brother live in China without harm, but Zheng fears returning to China because of his
participation in the student demonstrations.
Zheng offered a letter from his father to corroborate his claim, but he did not offer any letters
from his aunt or cousin regarding his participation in the student demonstrations or his cousin’s
arrest. He also did not reference any arrest warrants, police reports, or official proceedings involving
him or his family.
Zheng also claimed that he feared returning to China because of his practice of Falun Gong
since 2005. He did not present any evidence to corroborate his claim.
He also said that he lived in New York before moving to Ohio to work. He did not recall
when he left New York, the year or his age. While in New York, he met and married Katherine
Vasquez. In 2001, he applied for an adjustment of status, but the Department of Homeland Security
(“DHS”) denied his application because he did not establish a bona fide marital relationship. The
couple divorced in 2005. In 2007, he filed his second application for adjustment of status. After an
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I-140 petition filed on his behalf was approved, he filed a motion with the BIA to remand, requesting
consideration of his application by the IJ. He argued that he was eligible for status adjustment under
8 U.S.C. § 1255(i) because his 2001 application was “approvable when filed” or “properly filed,
meritorious in fact, and non-frivolous.” 8 C.F.R. §§ 316.10, 1245.10(a)(3).
The IJ denied Zheng’s application for relief and ordered him removed to China. The IJ found
that Zheng’s testimony was not credible because of (1) inconsistencies between his testimony and
a letter from his father regarding Zheng’s age at the time of the demonstrations, the number of
demonstrations attended, and the length of his father’s detention and (2) the vague descriptions of
the first four alleged demonstrations. In the alternative, the IJ found that Zheng had not established
that he had a well-founded fear of future persecution in China on account of his political opinions
or religious beliefs. The IJ also found that he did not establish that he practiced Falun Gong.
The BIA adopted and affirmed the IJ’s decision and dismissed Zheng’s appeal. It found that
the IJ’s adverse credibility finding was not clearly erroneous. It also denied his motion to reopen and
remand the proceedings to the IJ for consideration of his second application for adjustment of status.
It found that Zheng was not a “grandfathered alien” under 8 U.S.C. § 1255(i) because his first visa
petition was not “approvable when filed.” It also stated that Zheng failed to provide prima facie
evidence that his application showed that he would be eligible for a status adjustment and did not
meet the “heavy burden” of showing that a motion to reopen was warranted.
II. JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction to review a final order of removal under 8 U.S.C. § 1252.
“Because the BIA summarily adopted the IJ’s decision without issuing its own opinion, we review
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the decision of the IJ as the final administrative order.” Ramaj v. Gonzales, 466 F.3d 520, 527 (6th
Cir. 2006). We review the IJ’s factual findings, including adverse credibility findings, under the
substantial evidence standard and reverse only if “any reasonable adjudicator would be compelled
to conclude to the contrary.” Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004) (quoting 8 U.S.C.
§ 1252(b)(4)(B)). We review the BIA’s denial of a motion to reopen and remand for abuse of
discretion. Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007).
III. DISCUSSION
(1) The IJ’s Credibility Determination
The IJ provided specific reasons for his adverse credibility findings that were “based upon
issues that go to the heart of the applicant’s claim” or that can be viewed as attempts to enhance his
claim. See Ramaj, 466 F.3d at 527. Given the inconsistencies in Zheng’s testimony and his father’s
letter and the lack of corroborating evidence to support his claims, the IJ’s credibility determination
was reasonable and supported by substantial evidence.
Zheng claimed that he fled China and had a well-founded fear of persecution because of his
political opinion or involvement in pro-democracy student demonstrations. However, the IJ found
inconsistencies in the record involving the extent of Zheng’s political involvement. See Ramaj, 466
F.3d at 528 (providing that “an inconsistency about the level of involvement in political activities
. . . goes to the heart of the claim”). Zheng testified that he had distributed leaflets and collected
donations at “probably four or five” student demonstrations, but his father only mentioned one
student parade. Zheng stated that he was 13 years old at the time of the student demonstrations, but
the two translations of his father’s letter provide that he was 19 or “10 and some years old.” His
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father also noted that he was not worried at first because his son “had nothing to do with politics.”
In addition, the IJ found that the record was inconsistent regarding the length of his father’s
detention. Zheng claimed that his father was detained for “half a year,” and his father provided that
he was detained for a “few months.” Zheng also testified that his father was beaten while he was
detained. His father stated that his house and belongings were damaged but did not mention any
physical harm. Finally, the IJ found that Zheng was vague when describing his participation in the
demonstrations prior to June 4, 1989. Zheng provided little information on the purpose of the
student movement or why he collected donations.
Zheng did not present any other evidence to corroborate his claim. Although an alien is not
required to produce corroborating evidence – his testimony alone can be sufficient – and such
evidence may be difficult to ascertain, his failure to do so further supports the IJ’s adverse credibility
finding. See Pilica v. Ashcroft, 388 F.3d 941, 954 (6th Cir. 2004).
Additional inconsistencies and unanswered questions – such as when Zheng left China, when
he arrived in the United States, when he moved from New York to Ohio, and whether he received
work authorization – are minor and have no bearing on whether he should be returned to China.
However, their “cumulative effect” gives further support to the IJ’s adverse credibility finding. See
Yu, 364 F.3d at 704.
(2) Asylum
To be eligible for asylum, an applicant must show that he is a “refugee,” which includes any
person that is unable or unwilling to return to his home country because of a well-founded fear of
future persecution based on political opinion or religion. 8 U.S.C. § 1101(a)(42)(A).
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A. Political Opinion
The IJ reasonably found that Zheng did not establish a well-founded fear of future
persecution because of his participation in the student demonstrations when he was 13 years old.
The IJ found that it was “implausible that the Government of China would be still seeking out to
persecute” such a young, minor participant in a few demonstrations so many years earlier. See
Pilica, 388 F.3d at 954 (providing that “political involvement, consisting merely of attending five
demonstrations at which he held up signs, yelled, and applauded, was ‘sparse’” and not sufficient
to establish a well-founded fear of future persecution). The IJ also found that Zheng did not meet
his burden of establishing that he participated in the student demonstrations because his testimony
was vague and provided very little detail and he presented insufficient evidence to corroborate his
claim. Moreover, Zheng’s father and younger brother remain in China without harm. There is no
evidence that his father has been threatened, arrested, or detained since the arrest in 1990 or that the
police are still seeking Zheng for questioning or punishment. In sum, the IJ reasonably concluded
that Zheng did not provide sufficiently detailed explanations or reasonably expected corroborating
evidence to meet the burden of proof necessary for granting asylum. See Dorosh v. Ashcroft, 398
F.3d 379, 382-83 (6th Cir. 2004).
B. Religious Beliefs
The IJ reasonably found that Zheng did not establish a well-founded fear of future
persecution based on his religious beliefs because he did not show that he was a Falun Gong
practitioner. Zheng provided that he was introduced to Falun Gong by an American, Michael, in
2005. He practiced Falun Gong in his room while living with co-workers and discussed this practice
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with them. None of these individuals provided statements to support Zheng’s interest in or practice
of Falun Gong. Zheng also sought a Master or teacher in the United States, contacting at least two
Masters in Ohio. Neither Master provided a statement to support the alleged contact. Now, Zheng
lives alone and continues to practice Falun Gong alone in his apartment once or twice a week by
reading, calming his mind, finding information on the Internet, watching videos, and performing
exercises (two or three times a week). He claims that he has lost contact with the people that knew
of his practice of Falun Gong so that his claim cannot reasonably be corroborated. The IJ did not
err in concluding that Zheng failed to establish that he practiced Falun Gong. See id.(3) Withholding of Removal
The burden of proof for withholding of removal is more stringent than that for asylum. See
Pilica, 388 F.3d at 951. Because Zheng failed to meet the burden of proof for his asylum claim, he
necessarily failed to meet the higher burden of proof for withholding of removal.
(4) Relief under the Convention Against Torture
Under CAT, the applicant must show that “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Zheng did not
make a CAT claim separate from his claim for asylum. For the same reasons that he has failed to
show that persecution is more likely than not, he has failed to show that torture is more likely than
not. See Berri v. Gonzales, 468 F.3d 390, 398 (6th Cir. 2006).
(5) Motion to Reopen for Adjustment of Status
An alien may file a motion to reopen and remand if there are new facts that establish
eligibility for the relief sought. 8 C.F.R. § 1003.2(c); Yousif v. INS, 794 F.2d 236, 241 (6th Cir.
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1986). He may show eligibility for an adjustment of status under 8 U.S.C. § 1255(i) if he is the
beneficiary of a visa petition filed on or before April 30, 2001 that was “approvable when filed.”
To be “approvable when filed,” the petition must be “properly filed, meritorious in fact, and non-
frivolous . . . based on the circumstances that existed at the time the qualifying petition . . . was
filed.” In re Riero, 24 I. & N. Dec. 267, 268 (BIA 2007) (quoting 8 C.F.R. § 1245.10(a)(3)). The
denial of a previous petition is significant, but not determinative, of whether the petition was
“meritorious in fact.” Id.The BIA properly exercised its discretion in denying Zheng’s motion to reopen and remand
because “[t]here was insufficient evidence that [Zheng’s] marriage was bona fide at the time the
petition was filed” and Zheng “failed to demonstrate that the marriage visa petition was ‘approvable
when filed.’” In support of his claim that his marriage was bona fide, Zheng offered several
documents. However, it appears that the only new information was two affidavits from Zheng’s
friends stating that Zheng got married; he moved into his wife’s parents’ house; he was apart from
his wife most of the time; and his wife had an affair (or was still seeing her ex-boyfriend). The
evidence initially presented to the DHS (along with interviews of Zheng and Vasquez) did not
demonstrate a bona fide marriage, and Zheng did not provide any new facts that established
eligibility for the relief sought. The BIA properly decided that he “failed to meet the ‘heavy burden’
of showing that a motion to reopen was warranted.”
PETITION DENIED.
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