Jen Ching Zheng v. Ashcroft

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-15-2004
Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3920
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
NO. 03-3920
___________
JEN CHING ZHENG
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES
Respondent
___________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A77 309 637)
___________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 8, 2004
BEFORE: SLOVITER, VAN ANTWERPEN and COW EN, Circuit Judges
(Filed : October 15, 2004)
___________
OPINION
___________
VAN ANTWERPEN, Circuit Judge
Ren Ching Zheng (“Petitioner”), also known as Jen Ching Zheng, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) affirming the decision
of the Immigration Judge (“IJ”). The IJ denied Petitioner’s application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), finding that
Petitioner failed to meet the statutory prerequisites and lacked credibility. The IJ also
denied Petitioner’s application for withholding of removal under the Convention Against
Torture (“CAT”), finding that Petitioner failed to show that he is more likely than not to
be tortured if he returns to China. For the reasons set forth below, we deny the petition.
I. FACTUAL AND PROCEDURAL HISTORY
Since we write only for the parties, we need only restate the relevant facts.
Petitioner, a native citizen of the People’s Republic of China (“China”), was born in and
lived in the Fuzhou province. According to his testimony, Petitioner’s wife gave birth to
their first son on August 9, 1989 and approximately one month later she was forced to
have an IUD implanted. In 1995, Petitioner and his wife fled to the Guanxi province of
China where his wife’s IUD was removed at their request. On January 8, 1996 he and his
wife had a second son, apparently without the knowledge of the government.
Approximately two years later, the family briefly returned to the Fuzhou province to visit
Petitioner’s parents. Shortly after they returned to the Guanxi province, Petitioner’s
father received two notices for the Petitioner and his wife which he forwarded to them.
The first notified Petitioner that he was being assessed a 10,000 RMB fine, presumably
for violating the one-birth policy. The second summoned his wife to report for
sterilization. Although Petitioner and his wife disregarded both notices, they were not
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bothered by officials after their return to the Guanxi province. Petitioner came to the
United States in 2000, allegedly to avoid paying the fine.
The BIA took appellate jurisdiction over the decision of the IJ pursuant to 8 C.F.R.
§ 3.1(b)(3), (9), now 8 C.F.R. § 1003.1(b)(3), (9). This Court has jurisdiction over the
petition for review pursuant to 8 U.S.C. § 1252(a)(1).
II. STANDARD OF REVIEW
This Court’s jurisdiction over final orders of removal generally leads us to review
the decision of the BIA. However, in cases in which the BIA merely adopts the IJ’s
opinion, the Court of Appeals will review the IJ’s decision. Gao v. Ashcroft, 299 F.3d
266, 271 (3d Cir. 2002).
The scope of review is narrow. This Court applies substantial evidence review to
findings of fact. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this
standard, we are bound by the administrative findings of fact unless those findings would
compel a reasonable adjudicator to arrive at a contrary conclusion. 8 U.S.C. §
1252(b)(4)(B); see Abdille, 242 F.3d at 483. Additionally, because Congress delegated
substantial authority under the INA to the Attorney General, who then vested his authority
in the BIA, the BIA’s reasonable statutory interpretations are entitled to deference as
established in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-
43 (1984). Abdulrahman v. Ashcroft, 330 F.3d 587, 591 (3d Cir. 2003).
III. DISCUSSION
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1. Adverse Credibility Determination
Petitioner claims that the IJ erred in determining that he was not credible. We
subject the IJ’s adverse credibility finding to substantial evidence review which requires
us to “uphold the credibility determination of the BIA or IJ unless ‘any reasonable
adjudicator would be compelled to conclude to the contrary.’” Chen v. Ashcroft, 376 F.3d
215, 222 (3d Cir. 2004). The IJ based his findings on discrepancies between Petitioner’s
oral testimony and documentary evidence. Most notably, Petitioner testified that
following the birth of his son, he and his wife fled to the Guanxi province in 1995 where
they had another child and where he remained until fleeing to the United States in 2000.
In a separate affidavit, Petitioner stated that he and his wife ran away from their home in
2000 and that he went to the Guanxi province but did not know where his wife went.
Petitioner also testified that his second child was born in the Guanxi province, but on
other documentation stated that he was born in the Fuzhou province. Petitioner was
confronted with these discrepancies at his hearing, but was unable to explain them. These
discrepancies involve more than insignificant details; the underlying facts are central to
Petitioner’s claim that he fled China because of the country’s population control laws, and
raises questions about when and how the government responded to his violations of those
laws. For this reason, we find that the IJ’s credibility determination is reasonably
grounded in the record, and therefore we uphold his findings.
2. Eligibility for Asylum and Withholding of Removal
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Even if Petitioner was found to be credible, we agree with the IJ that he is
ineligible for asylum and withholding of removal. To be eligible for asylum, Petitioner
has the burden of establishing that he meets the statutory requirements of refugee status.
Abdille, 242 F.3d at 482. A refugee is defined as one who cannot or will not return to his
or her 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.” 8 U.S.C. § 1101(a)(42)(A). A person is deemed persecuted on account of
political opinion if he or she “has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted for failure or refusal to undergo such
a procedure or for other resistance to a coercive population control program.” 8 U.S.C. §
1101(a)(42)(B). Additionally, “a person who has a well founded fear that he or she will
be forced to undergo such a procedure or subject to persecution for such failure, refusal,
or resistance shall be deemed to have a well founded fear of persecution on account of
political opinion.” Id.Petitioner himself was not forced to abort a pregnancy or undergo involuntary
sterilization, and the IJ found that even if he was credible, he did not demonstrate that he
faced persecution. Nor did Petitioner have a fear of persecution as he and his family were
able to live in the Guanxi province free from government harassment, despite refusing to
report for sterilization or pay the assessed fine. Whether Petitioner faced “persecution” or
a “fear of persecution” is a question of fact, which is reviewed under the substantial
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evidence standard, and may only be reversed upon compelling evidence. Abdille, 242
F.3d at 483. We find nothing on the record that would compel us to make a different
finding.
Although Petitioner does not meet the statutory prerequisites to be considered a
refugee, this Court has recognized, somewhat hesitantly, the BIA’s decision that extends
refugee protection to an applicant whose spouse suffered forced sterilization. Chen, 376
F.3d at 223 & n.2 (citing In Re C-Y-Z, 21 I. & N. Dec. 915, 918 (BIA 1997)). As the IJ
demonstrated, however, Petitioner’s wife never faced forced sterilization or an abortion,
even five years after she was given notice to report for sterilization. Nor did he and his
wife face any persecution when she did not report for sterilization. The IJ and BIA chose
not to extend refugee protection to a petitioner whose spouse is still located in the alleged
persecuting country, has not yet been forced to abort a pregnancy or undergo sterilization,
and who may or may not have a fear that someday she will be forced to do so. The BIA is
entitled to Chevron deference when construing the statute it administers. INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999). Under Chevron, this Court must ask whether “the
statute is silent or ambiguous with respect to the specific issue” and if so “whether the
agency’s answer is based on a permissible construction of the statute.” 467 U.S. at 842.
The statute does not specifically mention spousal protection and we find that the
extension of the statute may reasonably be limited to applicants whose spouses have
already been subjected to population control procedures.
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Even if Petitioner had met the statutory requirements, his ability to avoid
government interference by moving to another part of the country would have necessarily
influenced the IJ’s discretionary determination. “[A]n immigration judge, in the exercise
of his or her discretion, shall deny the asylum application of an alien found to be a
refugee on the basis of past persecution if . . . [t]he applicant could avoid future
persecution by relocating to another part of the applicant's country of nationality.” 8
C.F.R. § 208.13(b)(1)(i). Petitioner’s ability to settle peacefully in another part of his
country would have compelled the IJ to refuse to exercise his discretion in favor of
asylum.
The IJ also found that Petitioner did not meet the requirements for withholding of
removal under the INA. Withholding of removal has a similar, albeit stricter, statutory
prerequisite that makes it available only “if the Attorney General decides that the alien's
life or freedom would be threatened in that country because of the alien's race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §
1231(b)(3)(A). An applicant who fails to meet the requirements warranting asylum also
fails to meet the standards for withholding of removal under the INA. Lukwago v.
Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Because Petitioner did not meet the
requirements for asylum, we find that he is not eligible for withholding of removal under
the INA.
3. Eligibility for Withholding of Removal under the CAT
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The Petitioner further claims that the IJ erred in denying him relief under the CAT.
“The burden of proof is on the applicant for withholding of removal under this paragraph
to establish 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. § 208.16(c)(2). Petitioner has offered no
testimony whatsoever that he would face torture upon his return to China. Although
Petitioner has suggested that he may have to pay a fine upon his return, he has offered no
testimonial or documentary evidence demonstrating that it is more likely than not that he
will be tortured upon his return. We therefore sustain the findings of the IJ in this regard
as well.
For the foregoing reasons we deny the petition.
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