Hui Zhuang v. Alberto Gonzales ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4131
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Hui Zhuang, *
*
Petitioner, *
* Petition for Review of a Final
v. * Decision of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: September 29, 2006
Filed: December 22, 2006
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Before LOKEN, Chief Judge, SMITH, and GRUENDER, Circuit Judges.
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SMITH, Circuit Judge.
Hui Zhuang, a citizen of China, petitions for review of a final order of removal
by the Board of Immigration Appeals (BIA). The BIA summarily affirmed the
decision of the Immigration Judge (IJ) denying Zhuang's applications for asylum,
withholding of removal and relief under the Convention Against Torture (CAT). For
the reasons discussed below, we deny Zhuang's petition.
I. Background
Hui Zhuang, a native and citizen of China, entered the United States without
inspection in 1990. In 1992, Zhuang filed an application for asylum, claiming that
because he violated China's one-child policy, he "got [sic] a lot of troubles and was
fined a lot of money" and believed that he had "no freedom in human rights in China."
The Immigration and Naturalization Service (INS) commenced removal proceedings
against Zhuang in 1999. Zhuang conceded removability but renewed his request for
asylum and also requested relief through withholding of deportation and protection
under CAT. In Zhuang's renewed request for relief, he claimed past persecution and
a fear of future persecution because he and his wife had violated China's one-child
policy and his wife had been forcibly sterilized following the birth of their second
child.
Zhuang married Bi Ying Zhang in China in 1984. In 1985, the couple had their
first child, a daughter. In November 1986, they had a second child, a son. In
December 1986, Zhuang's wife underwent a sterilization procedure. Zhuang alleges
that the Chinese government forced his wife to undergo this procedure.1 Zhuang came
to the United States in January 1990, but his wife and children remained in China. In
November 1996, Zhuang and his wife were divorced in China. In December 1996,
Zhuang's ex-wife married a naturalized American citizen from China. As a result,
Zhuang's ex-wife was issued an immigrant visa, and she and the children came to the
United States in 1998. Zhuang's ex-wife's second marriage ended in divorce in 2002.
She then applied for naturalization in 2004. In her application for naturalization,
Zhuang's ex-wife indicated that she had returned to China for a visit in 2002, staying
37 days before returning to the United States.2 The ex-wife and children are now
United States citizens.
1
Zhuang's initial application for asylum did not allege that his wife was forcibly
sterilized.
2
Zhuang's ex-wife's naturalization application does not reflect whether she was
forcibly sterilized.
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The final hearing on Zhuang's claims for relief was originally set for August 9,
2001, but due to several continuances, Zhuang's final merits hearing was not held until
September 16, 2004. At the time of the final hearing, Zhuang and his ex-wife were
working at the same restaurant, living in the same apartment building, and
occasionally living in the same apartment. Because Zhuang's claims for relief were
based on the forced sterilization of his ex-wife, the IJ had informed Zhuang at a
previous hearing that his ex-wife's testimony would be extremely helpful on that issue.
However, at the final hearing, Zhuang was the only witness to testify. Zhuang's ex-
wife did not appear or testify nor did Zhuang provide an affidavit from her. Although
Zhuang submitted documentary evidence that his ex-wife had been sterilized, the
document did not reflect that the procedure was done involuntarily. The other
documents provided by Zhuang were not properly certified as required by 8 C.F.R.
287.6, despite a prior warning from the IJ to Zhuang and his attorney about the
certification requirements. As a result, the IJ gave the uncertified documents little or
no weight.
At the conclusion of the hearing, the IJ denied Zhuang's requests for asylum,
withholding of removal, and relief under CAT, finding that Zhuang lacked credibility
and that he failed to prove that his ex-wife had been forcibly sterilized. Likewise, the
IJ concluded that Zhuang had failed to prove fear of future prosecution and the
likelihood of torture by the government if he was returned to China. The IJ also found
that the country conditions in rural areas of China, such as Zhuang's home province,
had changed, making it lawful for couples to have a second child if the first child was
a girl. The BIA affirmed without comment. Zhuang filed a motion to reconsider,
which was denied, and petitioned this court for review.
II. Discussion
On appeal, Zhuang first argues that the IJ and the BIA erred in denying his
asylum claim, request for withholding of removal, and relief under CAT. Zhuang's
second argument is that his Fifth Amendment rights to due process regarding a full
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and fair hearing were violated because the interpreter assigned to the final hearing was
ineffective.
A. Due Process Claim
As an initial matter, we lack jurisdiction to address Zhuang's due process claim,
and we therefore dismiss that claim. See Alyas v. Gonzales, 419 F.3d 756, 761 (8th
Cir. 2005). (holding that the court lacked jurisdiction to hear inadequate interpreter
due process claim where petitioner argued to BIA that interpreter was inadequate, but
failed to present due process argument). Zhuang asserts a due process deprivation
based upon allegedly ineffective assistance from the interpreter provided for him at
his final hearing before the IJ. However, Zhuang failed to present this argument to the
BIA and jurisdiction before this court is thus lacking. Id. Although Zhuang noted in
his Notice of Appeal that "the interpreter was not competent," he made no mention of
a due process claim.
B. Standard of Review
Turning to Zhuang's other claims for relief, we review questions of law de novo
and review an IJ's fact determinations by applying the substantial evidence test. Turay
v. Ashcroft, 405 F.3d 663, 666 (8th Cir. 2005). Under the substantial evidence test,
"we must affirm if the IJ's decision is supported by reasonable, substantial, and
probative evidence." Id. at 666–67 (citations omitted). We will only reverse factual
determinations "if the petitioner demonstrates that the evidence was so compelling that
no reasonable fact finder could fail to find in favor of the petitioner." Id. at 667
(citations omitted).
The BIA's decision to affirm the IJ without opinion "is committed to agency
discretion and not subject to judicial review." Ngure v. Ashcroft, 367 F.3d 975, 983
(8th Cir. 2004). When the BIA affirms the decision of the IJ without opinion, the IJ's
decision is treated as the final agency decision. Cao v. Gonzales, 442 F.3d 657, 659
(8th Cir. 2006). We must affirm the IJ's decision if it is supported by substantial
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evidence on the administrative record as a whole. Rife v. Ashcroft, 374 F.3d 606 (8th
Cir. 2004). When the IJ has denied asylum, withholding of removal, or relief under
CAT, the petitioner "bears the heavy burden of showing that his evidence 'was so
compelling that no reasonable factfinder could fail to find the requisite fear of
persecution.'" Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir. 2003) (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 483–84(1992)); Onsongo v. Gonzales, 457 F.3d
849, 852 (8th Cir. 2006); see also 8 U.S.C. § 1252(b)(4)(B). That standard is now
codified in 8 U.S.C. § 1252(b)(4)(B). We defer to the IJ's determination of the
petitioner's credibility if the determination is supported by a specific, cogent reason
for the IJ's disbelief. Cao, 442 F.3d at 660; Onsongo, 457 F.3d at 852.
C. IJ's Credibility Determination
The IJ gave several reasons for finding Zhuang not credible. The IJ noted
Zhuang's inconsistent and vague testimony, in particular, contradictions between the
country information and Zhuang's claims. The IJ also considered that Zhuang neither
provided testimony or an affidavit from his ex-wife nor provided sufficiently
authenticated documentary evidence.
Specifically, the IJ noted inconsistencies in Zhuang's testimony regarding his
Chinese residence. Zhuang first testified that he continued to live in the same house
as his wife and children until he came to the United States, but later Zhuang said that
he temporarily moved for two to three years prior to leaving China. Because this
testimony was largely immaterial to Zhuang's claims for relief, these inconsistencies
alone do not vanquish Zhuang's claim of persecution. See Cao, 442 F.3d at 660;
Sheikh v. Gonzales, 427 F.3d 1077, 1080 (8th Cir. 2005) (noting that minor
inconsistencies which do not go to the core of the claim of persecution will not
support an adverse credibility finding).
The IJ also considered Zhuang's ex-wife's failure to testify regarding the alleged
involuntary sterilization significant. "An omission alone is normally insufficient for
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an adverse credibility finding, but if it goes to the 'heart of the asylum claim,' it does
raise a credibility issue." Cao, 442 F.3d at 661 (citing Kondakova v. Ashcroft, 383
F.3d 792, 796 (8th Cir. 2004) (quoting Chebchoub v. INS, 257 F.3d 1038, 1043 (9th
Cir. 2001))). Because the forced sterilization of his ex-wife was central to Zhuang's
asylum claim, the omission of any testimony or affidavit from her is material. Her
absence is particularly puzzling when one considers that the ex-wife worked in the
same restaurant and lived in the same apartment building, and occasionally even the
same apartment as Zhuang. Moreover, the IJ had told Zhuang and his counsel at a
previous hearing that the ex-wife's testimony regarding her sterilization would be
important to his claim.
Additionally, the IJ relied on inconsistencies between Zhuang's statements and
the objective country information. Although Zhuang alleged that his second child
violated China's one-child policy, the country information indicated that when a
couple's first child is a girl, the couple is permitted to try again to have a boy. The IJ
noted that Zhuang and his wife first had a daughter and then a son in compliance with
the policy. Zhuang would therefore not have been in violation of the policy. Whether
the policy was violated goes to the core issue in Zhuang's asylum claim. See Cao, 442
F.3d at 661. Zhuang did not offer any persuasive evidence to support his testimony
regarding his violation of China's one-child policy or China's enforcement of the
policy when a couple first has a daughter then a son. "Without such evidence, there
was reason for the IJ to question the credibility of [Zhuang's] testimony about the
issue." Id. (citing Chen v. INS, 195 F.3d 198, 204 (4th Cir. 1999) (noting that "an
applicant must proffer some additional evidence that his fears of [the Chinese family
planning] policy are objectively reasonable")).
Viewing the record as a whole, we hold that the IJ's credibility assessment was
supported by reasonable, substantial, and probative evidence. The inconsistencies and
omissions in Zhuang's testimony and documentary evidence, combined with the
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discrepancies between the country reports and Zhuang's testimony, are sufficient to
support the IJ's credibility finding. Cao, 442 F.3d at 661.
D. Asylum
In deciding most asylum cases, "the critical inquiry is whether the applicant has
a well-founded fear of future persecution upon return to his or her country."
Perinpanathan, 310 F.3d 594, 597–98 (8th Cir. 2002) (citing Kratchmarov v. Heston,
172 F.3d 551, 553 (8th Cir. 1999)). To be "well-founded," a fear must be both
"subjectively genuine and objectively reasonable." Id.; Feleke v. INS, 118 F.3d 594,
598 (8th Cir. 1997). Subjectively, the alien must demonstrate, with credible evidence,
that he genuinely fears persecution. Feleke, 118 F.3d at 598. This may be done with
credible testimony. Francois v. INS, 283 F.3d 926, 930 (8th Cir. 2002). Objectively,
the alien must show "credible, direct, and specific evidence that a reasonable person
in the alien's position would fear persecution if returned to the alien's native country."
Feleke, 118 F.3d at 598. This fear "must have [a] basis in reality and must be neither
irrational nor so speculative or general as to lack credibility." Perinpanathan, 310
F.3d at 598. Fears of economic hardship or lack of opportunity do not establish a
well-founded fear of persecution. Feleke, 118 F.3d at 598; Minwalla v. INS, 706 F.2d
831, 835 (8th Cir. 1983).
Where an alien establishes past persecution under one of the qualifying
grounds, there is a presumption of a well-founded fear of future persecution on the
same ground. Francois, 283 F.3d at 930; 8 C.F.R. § 208.13(b)(1). A person who has
been forced to undergo involuntary sterilization is deemed to have been persecuted on
account of political opinion. 8 U.S.C. § 1101(a)(42). Likewise, we allow a male
petitioner to "stand in the shoes of his wife in claiming persecution" if his claim is
based on the forced sterilization of the wife. Cao, 442 F.3d at 660. Thus, the husband
of a woman who has been forcibly sterilized can establish past persecution and a
presumption of a well-founded fear of future persecution if he can establish that the
sterilization was involuntary. However, we are unaware of any authority that expands
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this doctrine to cover a former spouse's involuntary sterilization, even if the
sterilization was performed while the couple was married. But, because Zhuang failed
to establish that his ex-wife's sterilization was involuntary, we need not address the
possible expansion of the rule. Further, Zhuang's fear of persecution is significantly
diminished by the fact that his ex-wife and children remained in China for over 11
years after the sterilization procedure without any proof of harm and that she returned
to China in 2002, staying for 37 days, again without any indication of harm. See
Krasnopivtsev v. Ashcroft, 382 F.3d 832 (8th Cir. 2004) (reasonableness of an asylum
applicant's fear of persecution is diminished when family members remain in the
native country unharmed).
E. Withholding of Removal
An application for asylum automatically includes a request for withholding of
removal. 8 C.F.R. § 1208.3(b); Turay, 405 F.3d at 667. "An alien may not be removed
if the alien shows there is a clear probability that his 'life, or freedom would be
threatened in [the alien's] country because of the alien's race, religion, nationality,
membership in a particular social group or political opinion.'" Turay, 405 F.3d at 667
(quoting 8 U.S.C. § 1231(b)(3)(A)(1999)); Ngure, 367 F.3d at 989. The "clear
probability of persecution" standard for withholding of removal is more rigorous than
the well-founded fear standard for asylum. Rife, 374 F.3d at 613; Wondmneh v.
Ashcroft, 361 F.3d 1096, 1099 (8th Cir. 2004). Thus, an alien who fails to prove
eligibility for asylum cannot meet the standard for establishing withholding of
removal. Ngure, 367 F.3d at 992. Accordingly, Zhuang's withholding of removal
claim must fail. Id.; Turay, 405 F.3d at 667.
F. Convention Against Torture
Under CAT, the petitioner must show that "it is more likely than not that he []
would be tortured if returned to the proposed country of removal." Id. (quoting
Perinpanathan, 310 F.3d at 599); 8 C.F.R. § 208.16(c)(2). "In determining eligibility
under CAT, 'all evidence relevant to the possibility of future torture should be
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considered, including but not limited to: past torture inflicted upon the applicant; the
applicant's ability to relocate to another area of the country where torture is unlikely;
and gross, flagrant, or mass violations of human rights.'" Turay, 405 F.3d at 992
(quoting Ngure, 367 F.3d at 992); 8 C.F.R. § 208.16(c)(3). In light of the IJ's
credibility determination, Zhuang's CAT claim fails also because the record does not
support a finding that it is more likely than not that Zhuang would be tortured if
returned to China.
III. Conclusion
For the foregoing reasons, we deny the petition for relief.
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