Xui-Hua Zhu v. US Attorney General

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-3-2003
Zhu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2817
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Zhu v. Atty Gen USA" (2003). 2003 Decisions. Paper 150.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/150
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 2003 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NOT PRECEDENTIAL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. 02-2817
XUI-HUA ZHU,
Petitioner
v.
US ATTORNEY GENERAL
Petition for Review of an Order
of the Board of Immigration Appeals
(A70-842-340)
Submitted Under Third Circuit LAR 34.1(a)
October 14, 2003
Before: SLOVITER, ROTH, and CHERTOFF, Circuit Judges
(Filed November 3, 2003)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner Xui-Hua Zhu has filed a petition for review of the order of the Board of
Immigration Appeals (“BIA”) affirming, without a separate opinion, the decision of an
immigration judge (“IJ”) that denied Zhu asylum and withholding of removal and
re-entered a prior order of exclusion. The IJ based his decision on an adverse finding of
credibility. For the reasons that follow, we will deny the petition for review.
I.
BACKGROUND
Zhu is a citizen and national of the People’s Republic of China. In 1978, Zhu
married, and in 1979 his wife gave birth to the couple’s first child, a daughter. In 1981,
Zhu’s wife became pregnant again. Zhu testified that after the local family-planning
cadre discovered this second pregnancy, it required Zhu’s wife to have an abortion. To
avoid this outcome, Zhu and his wife went into hiding at his mother-in-law’s home until a
few day before delivery, when they returned home under the belief that an abortion would
be impossible at that stage. Zhu’s wife subsequently gave birth to the couple’s second
child, a son.
Zhu testified that a few days after the birth of the couple’s second child, the
family-planning cadre visited the couple again. They demanded that Zhu’s wife insert an
intrauterine device (“IUD”) to avoid future pregnancies. It is at this point that the facts
regarding the couple’s subsequent actions become a bit unclear. Zhu stated in his 1993
2
asylum application that his wife did not receive an IUD because she was too weak to
undergo the procedure, because it was legal for those residing in the countryside to have a
maximum of two children, and because he promised not to have any more children in the
future. He again testified to these facts during direct examination by counsel in the
hearing before the IJ. During cross examination, however, Zhu testified that his wife did
insert an IUD in 1981, after the second child’s birth. Zhu’s testimony is also unclear as to
whether Zhu’s wife lost the IUD by accident roughly a year later, or had the IUD
purposely removed by a private doctor in 1984.
In any event, Zhu and his wife had another child, a second son, on November 29,
1984. In his asylum application, Zhu stated that the pregnancy was “accidental.” App. at
10, 78. He testified, however, in front of the IJ that rumors of a new policy subjecting
those with two children to forced sterilization motivated the couple, who desired a second
son, to attempt to beget another child. He also stated that on December 3, 1984, the
family-planning cadre visited the couple once again to notify Zhu’s wife that she was to
be sterilized a few days later, and on December 6, 1984, cadre members forcibly
“dragged” Zhu’s wife away for sterilization. App. at 35-39. Three years later, Zhu was
fined by the government for having too many children.
After paying the government penalty, Zhu left China and entered the United States
via Thailand and Mexico in 1993. He subsequently sought relief from exclusion and
deportation, and filed an application for asylum based on his wife’s alleged forced
3
sterilization. In 1994, an IJ denied Zhu’s application for asylum and withholding of
deportation, but the order was never carried out. Zhu then filed a motion to reopen
immigration proceedings based upon amendments to 8 U.S.C. § 1101(a)(42) and the
BIA’s decision in Matter of C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997), which expanded the
definition of “refugee” to include individuals having undergone forced sterilization as
well as their spouses. Zhu’s daughter has since arrived in the United States. His wife and
sons remain in China.
II.
JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b).
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1).
When the BIA affirms without opinion the IJ’s decision, such approval constitutes the
final agency determination, see 8 C.F.R. § 3.1(a)(7)(iii), and the IJ’s decision becomes the
proper subject of judicial review. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002); 64
Fed. Reg. 56,135, 56,137 (Oct. 18, 1999).
An alien otherwise removable may remain in the United States through a grant of
asylum under § 1158(b)(1) of the Immigration and Nationality Act (“INA”) if the alien is
determined to be a refugee. The alien may demonstrate his or her refugee status by
showing that s/he suffered, inter alia, past persecution on account of one of the statutory
bases. Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003); see 8 U.S.C. §
4
1101(a)(42)(A), 1158(b)(1). The IJ notes that under the expanded definition of a refugee,
an individual who has been forced to undergo an abortion or involuntary sterilization is
considered to have been persecuted based upon political opinion. App. at 7. Whether an
asylum applicant has demonstrated past persecution is a factual determination reviewed
under the substantial evidence standard. Gao, 299 F.3d at 272. We will uphold the BIA’s
findings of fact to the extent they are supported by reasonable, substantial, and probative
evidence on the record considered as a whole. Balasubramanrim v. I.N.S., 143 F.3d 157,
161 (3d Cir. 1998) (quotation and citation omitted). Likewise, adverse credibility
determinations are reviewed for substantial evidence. Id. The BIA’s adverse credibility
determination must be upheld on review unless any reasonable adjudicator would be
compelled to conclude to the contrary. Gao, 299 F.3d at 272 (quotation omitted). On the
other hand, adverse credibility determinations based on speculation or conjecture, rather
than on evidence in the record, will not be upheld. Id.III.
DISCUSSION
In this case, there was reasonable, substantial, and probative evidence in the
administrative record to support the IJ’s adverse credibility finding. Zhu argues that the
IJ’s finding of inconsistencies between Zhu’s written asylum application and his in-court
testimony are not substantiated by the hearing records. However, there are significant
discrepancies between Zhu’s application and in-court testimony, and even within the
5
testimony itself, regarding the nature of the third pregnancy by Zhu’s wife and the
circumstances surrounding the insertion and removal of the IUD. It may be true that
removing the IUD did not guarantee, as Zhu argues, a new pregnancy for the couple. But
Zhu’s admission that he and his wife removed the IUD after hearing that China’s
sterilization policy would be enforced in the countryside supports the IJ’s conclusion that
the couple intended, indeed desired, a third child. It is unlikely that the third pregnancy
was “accidental” in the sense that it was unintended by Zhu and his wife.
Zhu also argues that the IJ improperly relied on an overseas investigative report
prepared by the Immigration and Naturalization Services (“INS”) in Guangzhou, China in
assessing Zhu’s credibility. Zhu alleges several factual inconsistencies and questions the
general credibility and diligence of the INS investigation. But Zhu has provided no
evidence to support his challenge. Given other inconsistencies between Zhu’s asylum
application and in-court testimony, the IJ properly relied on the INS investigative report
in his general credibility assessment.
Finally, Zhu argues that the IJ improperly speculated that Zhu’s wife may have
voluntarily undergone the sterilization procedure in this case. We agree that the record
provides no basis for such an assertion. However, the IJ readily conceded in his opinion
the speculative nature of this idea, and it is not a critical component of the IJ’s larger
credibility assessment; even without the speculation, there is ample evidence to support
the IJ’s adverse credibility determination.
6
For the reasons set out above, we will deny the petition for review.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge