2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-2010

Xiu-Yan Zhu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1647

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IMG-282 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1647

___________

XIU-YAN ZHU,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A098-715-485)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 18, 2010

Before: FUENTES, VANASKIE and VAN ANTWERPEN , Circuit Judges

(Opinion filed: August 19, 2010)

___________

OPINION

___________

PER CURIAM

Xiu-Yan Zhu seeks review of the Board of Immigration Appeals’ (“BIA”) final

order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision
 Zhu married after entering the United States and gave birth to a daughter in October 1

2006.

2

to deny Zhu’s application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We will deny the petition.

I.

Zhu is a native and citizen of China from Fujian Province. She arrived in the

United States on or about December 19, 2004. On December 23, 2004, the U.S.

Department of Homeland Security issued a Notice to Appear charging her with

removability under 8 U.S.C. § 1182(a)(6)(A)(i). Zhu admitted the factual allegations in

the Notice and conceded removability. On January 11, 2007, Zhu filed an amended

application for asylum, withholding of removal, and protection under the CAT, claiming

past persecution and fear of future persecution for practicing Falun Gong, which is

outlawed in China. She also claimed that she fears persecution for violating the country’s

family planning policy.1

The IJ denied Zhu’s application for relief, finding Zhu’s testimony that she is a

practitioner of Falun Gong lacked credibility. The IJ noted that Zhu was uncomfortable

answering questions about the discipline and appeared to know little about it. With

regard to corroborating evidence, while Zhu’s husband testified at the hearing that he

witnessed his wife practice Falun Gong regularly, the IJ found his testimony

unpersuasive. The IJ also determined that Zhu failed to provide adequate documentary

evidence substantiating her fear of persecution for having violated China’s family
 Because Zhu filed her asylum application after May 11, 2005, the provisions of the 2

REAL ID Act governing credibility determinations in asylum applications apply. See

Chukwu v. Att’y Gen. of the U.S., 484 F.3d 185, 189 (3d Cir. 2007). Under the REAL

ID Act, a trier of fact may base a credibility determination on inconsistencies, inherent

implausibilities, inaccuracies, and other factors, without regard to whether they relate to

the heart of an applicant’s claim. See INA § 208(b)(1)(B)(iii).

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planning policy.

On February 10, 2009, the BIA affirmed the IJ’s decision and dismissed Zhu’s

appeal. The BIA reviewed only the IJ’s denial of Zhu’s Falun Gong claim, determining

that she waived review of her additional claim that she would be persecuted under the

Chinese family planning policy.

II. 

This Court has authority to review final orders of removal. See 8 U.S.C. §

1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the

bases for the IJ’s decision, we have authority to review the decisions of both the IJ and

the BIA.” Chen v. Ashcroft, 376 F. 3d 215, 222 (3d Cir. 2004). The BIA’s factual

determinations are upheld if they are supported by reasonable, substantial, and probative

evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). We review an adverse credibility determination under the substantial evidence

standard. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Under this deferential

standard of review, this Court must uphold a credibility determination unless “any

reasonable adjudicator would be compelled to conclude to the contrary.” Gao v.Ashcroft,

299 F.3d 266, 272 (3d Cir. 2002) (quoting INA § 242(b)(4)(B)). 

2
 Although Zhu describes the IJ’s evaluation of her testimony as mostly an evaluation 3

of her demeanor, for reasons discussed herein, the record shows that his evaluation

encompassed more than Zhu’s inability to answer questions quickly, noting that she

displayed an overall lack of knowledge about the discipline.

4

We conclude that the adverse credibility determination in this case is supported by

substantial evidence as the hearing transcript shows that Zhu had a difficult time

providing details about her practice of Falun Gong. We agree with the IJ’s and BIA’s

observations that Zhu was often non-responsive when asked to describe what the practice

entailed. At other times, her answers were delayed. Specifically, the hearing transcript

reveals that while Zhu knew certain cursory information about Falun Gong such as its

founder, she could not adequately describe key elements of the discipline, including the

movements associated with meditation. (A.R. 107-8; 115-16). Although applicants for 3

asylum need not display “the knowledge of a seminarian,” see Mezvrishvili v. Att'y Gen.,

467 F.3d 1292, 1296 (11th Cir. 2006), we agree that Zhu’s inability to describe basic

elements of her practice undermines her claim that she has been regular practitioner of the

discipline since April 2003. (A.R. 91). 

The BIA also upheld the IJ’s adverse credibility ruling based on Zhu’s inconsistent

statements regarding her alleged September 2004 arrest for practicing Falun Gong. (Id. at

2.) Although perhaps less significant to the evaluation of her credibility than her inability

to adequately explain her practice of Falun Gong, we find that the IJ’s adverse credibility

determination is supported by “reasonable, substantial, and probative evidence on the

record considered as a whole.” Gao, 299 F.3d at 272. 
 Because Zhu has provided no argument in her opening brief challenging either the 4

BIA’s denial of her CAT claim or its finding that she waived review of her claim that she

would be persecuted under China’s family planning policy, we will not review those

claims. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).

5

We also find no error in the conclusions of the IJ and BIA that Zhu failed to

provide sufficient corroborating evidence of her ongoing practice of Falun Gong. In

denying asylum based on a lack of corroboration, the BIA and/or IJ must: (1) identify the

facts for which it is reasonable to expect corroboration; (2) inquire as to whether the

applicant has provided information corroborating the relevant facts; and, if he or she has

not; and (3) analyze of whether the applicant has adequately explained his or her failure to

do so. Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006); Abdulai v. Ashcroft, 239

F.3d 542, 554 (3d Cir. 2001).

The IJ reasonably expected Zhu to submit affidavits or some evidence that she has

practiced Falun Gong since her arrival in the United States. However, Zhu presented only

the testimony of her husband to support the claim. He was not a particularly helpful

witness. While he claimed that Zhu practices Falun Gong three or four times a week, he

could not offer any details about his wife’s practice. (A.R. 120-21.) The BIA reasonably

agreed that this lack of corroborating evidence failed to satisfy Zhu’s burden of proof.

As Zhu did not meet her burden of proof on her asylum claim, her claim for

withholding of removal necessarily fails. See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d 4

Cir. 2008). We will deny the petition for review.