2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-3-2009

Zhu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3084

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3084

___________

LI FANG ZHU,

Petitioner.

v.

ATTORNEY GENERAL OF THE UNITED STATES

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A200-125-569)

Immigration Judge: Honorable Miriam K. Mills

______________________________

Submitted under Third Circuit LAR 34.1(a)

on August 26, 2009

Before: MCKEE, NYGAARD and ROTH, Circuit Judges

(Opinion filed December 3, 2009)

__________

O P I N I O N

 

PER CURIAM:

Petitioner Li Fang Zhu, a native and citizen of the Fujian Province, People’s

Republic of China, entered the United States without possessing a valid visa, identity, or

entry document in 2005, and was placed in removal proceedings for that reason. 
 The IJ misstated how the presumption for future persecution works in the case of 1

an alien who demonstrated past persecution in the form of coerced abortion. The BIA,

however, noted the correct law and resolved the case on other grounds.

2

Subsequently, she applied for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). Zhu claims that her village’s family planning

committee forced her to have an abortion in early 2004 because she was pregnant and

unmarried. She also claims that she started practicing Falun Gong shortly after her

abortion. She asserts that if she is returned, she will be persecuted as a member of the

Falun Gong and she will be subjected to forced sterilization under China’s coercive

family planning policy because she is now married with an American-born son. 

After a hearing at which Zhu testified, the IJ denied relief, concluding that Zhu’s

testimony was incredible and that, in any event, it lacked corroboration. (A.R. 53). The

IJ characterized as “unequivocal” Zhu’s testimony that she had no intention of leaving

China until authorities sought to arrest her for practicing Falun Gong. (Id. at 48). 

According to the IJ, this “unequivocal” testimony contradicted Zhu’s assertion that her

abortion was “forced” and rebutted any presumption of a well-founded fear of future

persecution based on an alleged forced abortion. (Id.). The IJ also found that, although 1

Zhu’s written statement and oral testimony were essentially the same, both lacked

sufficient detail to make her allegation of a “forced” abortion plausible. (Id. at 49). The

IJ did not believe Zhu’s “simple” testimony that her mother agreed to let her have the

child out of wedlock. (Id. at 49-50). The IJ found that Zhu failed to explain why she
3

wanted to be a single, unwed mother in a conservative culture like China’s and why her

mother simply agreed to let her have the child. (Id.). The IJ found fault with her failure

to provide corroborating evidence, such as a letter or affidavit from her mother, with

whom Zhu had been in touch by phone just before the hearing, or authenticated medical

records indicating that she had had an abortion in China in 2004. Id. at 50.

The IJ concluded that Zhu’s testimony about her involvement in the Falun Gong

was incredible. The IJ noted that Zhu displayed generally unremarkable knowledge about

the practice of Falun Gong. (Id. at 51). Because Zhu’s testimony was too general, the IJ

looked to the presence of any corroborating evidence and found none. (Id. at 51-52). 

Although Zhu testified that, in April 2007, she had learned from her mother that Chinese

authorities were still looking for her, Zhu failed to submit an affidavit or letter from her

mother confirming Zhu’s testimony. (Id. at 51). The IJ rejected Zhu’s excuse that her

mother was illiterate. (Id. at 51-52). The IJ also faulted Zhu for failing to provide

affidavits or testimony from her husband or Philadelphia relatives with whom she lived

before she got married who could confirm her practice of Falun Gong. (Id. at 52).

The IJ determined that Zhu failed to establish a well-founded fear of future harm

under China’s restrictive family planning policies based on the birth of her son, absent

evidence showing that married people with one foreign-born child would be subjected to

forced sterilization under China’s family planning laws. (Id. at 52). The IJ found that

current Chinese law, codified in 2002, outlawed coercive measures such as sterilization
4

and abortion, replacing them with social compensation fees, or fines (calculated

according to disposable income), as the primary means for enforcing the one-child policy. 

(Id.). Based on her findings, the IJ concluded that Zhu failed to show that submitting to a

system of social compensation would be so burdensome to Zhu as to amount to

“persecution” under the law. (Id. at 52-53). The IJ also found that Zhu’s fear of

sterilization after having a second child was speculative as she only had one child. (Id. at

53).

Zhu appealed, submitting new evidence, an affidavit from her mother and medical

records from Temple Hospital (where she received prenatal care). In June 2008, the

Board of Immigration Appeals (“BIA”) dismissed the appeal. As to the merits of her

asylum claim, the BIA did not rely on the IJ’s adverse credibility finding as the Board did

not accept her conclusion that it was implausible that an unmarried woman would decide

to keep her child in China. (A.R. 3). The BIA agreed, however, that Zhu failed to show

by reasonably available evidence (such as affidavits and medical records) that she had a

forced abortion in China in 2004, and that she was a practicing member of the Falun

Gong. (Id.). The BIA also rejected Zhu’s claim of a well-founded fear of future

persecution because she failed to show that she would be subject to more than social

compensation, such as fines or loss of government benefits, if she violated the family

planning policy. (Id.).

The BIA construed Zhu’s submission of corroborating evidence as a motion to
5

remand and denied it, rejecting the affidavit from Zhu’s mother and the medical records

because they were reasonably available to Zhu prior to her hearing. (Id.). The BIA also

ruled that the evidence would not change the result in Zhu’s case, in any event, because it

would be entitled to little, if any, weight. (Id.). The BIA noted that Zhu’s mother was not

available for cross-examination on her affidavit and that the medical record detailing the

number of pregnancies and abortions had been altered. (Id.).

We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. 

See Briseno-Flores v. Attorney General, 492 F.3d 226, 228 (3d Cir. 2007). Where, as

here, the BIA issues a decision on the merits, we review the BIA’s, not the IJ’s decision. 

Li v. Attorney General, 400 F.3d 157, 162 (3d Cir. 2005). The BIA is bound by the IJ’s

factual determinations “including findings as to the credibility of testimony” and reviews

these findings only to determine whether they are clearly erroneous. 8 C.F.R. §

1003.1(d)(3)(i). “The BIA’s conclusions regarding evidence of past persecution and the

well-founded fear of persecution are findings of fact,” which we review under the

deferential substantial evidence standard. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d

Cir. 2006). Under the deferential substantial evidence standard, the BIA’s findings “must

be upheld unless the evidence not only supports a contrary conclusion, but compels it.” 

Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001). For the reasons that follow, the

petition will be denied.

In her petition for review, Zhu asserts that the IJ and BIA erred in finding that she
 Arguably, the Government is correct in asserting that Zhu waived her appeal of 2

the Board’s finding that she failed to corroborate her claim because she failed to include

sufficient argument in her brief. We will exercise our discretion, however, and address

the merits of the claim. See e.g., Bullock v. Dressel, 435 F.3d 294, 300 (3d Cir. 2006).

6

failed to show by reasonably available evidence that she suffered a forced abortion and

that she was a Falun Gong practitioner. As the Government correctly stated in its 2

response brief, this case concerns the sufficiency of the evidence, not credibility, as the

BIA did not affirm the IJ’s adverse credibility finding. See Kayembe v. Ashcroft, 334

F.3d 231, 235 (3d Cir. 2003). As we have previously acknowledged, the IJ may require

corroborating documentation even where an applicant is credible, and such corroboration

is required “where it is reasonable to expect such proof from a witness and there is no

satisfactory explanation for its absence.” Obale v. Atty. Gen., 453 F.3d 151, 163 (3d Cir.

2006). The BIA’s holding that Zhu failed to establish past persecution for asylum

purposes is supported by substantial evidence. Zhu failed to present reasonably available

evidence of her forced abortion in the form of authenticated medical records from China

or affidavits. See Chen v. Gonzales, 434 F.3d 212, 221-22 (3d Cir. 2005) (holding that

petitioner failed to provide reasonably available evidence, including medical records, to

support her forced abortion claim). Nor did Zhu provide any reasonably available

affidavit(s) showing that she practiced Falun Gong. Substantial record evidence also

supports the Board’s determination that Zhu failed to demonstrate a well-founded fear of

future harm due to the birth of her son in the United States because she has not shown
7

that she would be subjected to more than fines and loss of benefits if she violates the onechild rule upon her return to China.

Based on the record, the BIA’s denial of Zhu’s asylum application is supported by

substantial evidence. We cannot say that any reasonable adjudicator would be compelled

to conclude to the contrary.

Because Zhu failed to satisfy the lower burden of proof required for asylum, she is

necessarily ineligible for withholding of removal. See Immigration & Naturalization

Services v. Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987). Moreover, the BIA

determined that Zhu did not meet her burden of establishing that it is more likely than not

that she will be tortured upon her return to China, 8 C.F.R. §§ 208.16, 208.18, and we

conclude that the record does not compel a different conclusion.

Finally, the BIA did not abuse its discretion in denying Zhu’s request to remand

the matter to the IJ for consideration of Zhu’s belated proffer of Temple University

Hospital medical records and an affidavit from her mother. See Sevoian v. Ashcroft, 290

F.3d 166, 170 (3d Cir. 2002) (standard of review). The documents were not “new” as

both were reasonably available to Zhu prior to her removal hearing. We note that the

medical records merely detailed the number of pregnancies and abortions Zhu had but did

not indicate where she had an abortion (in China or in the United States) or whether she

had reported that the abortion(s) were coerced.

Accordingly, we will deny the petition for review.