United States Court of Appeals

For the First Circuit

No. 05-2562

WEIPING ZHENG,

Petitioner,

v.

ALBERTO GONZALES, ATTORNEY GENERAL,

Respondent.

 

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

 

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Cyr, Senior Circuit Judge.

 

Alexander K. Yu, on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Terri J.

Scadron, Assistant Director, and Sin Wong, Attorney, Office of

Immigration Litigation, U.S. Department of Justice, on brief for

respondent.

 

September 26, 2006

 
-2-

CYR, Senior Circuit Judge. Weiping Zheng petitions for

review of the Board of Immigration Appeals’ (BIA) decision

affirming an immigration judge’s denial of his application for

asylum and withholding of deportation. We affirm.

I

BACKGROUND

Zheng, a native and citizen of the People’s Republic of

China, illegally entered the United States in 2002. In 2003, the

Immigration and Naturalization Service (INS) initiated removal

proceedings in Los Angeles. Zheng conceded removability, then

applied for asylum based on his contention that he had experienced

religious persecution in China due to the fact he is a Christian.

On January 22, 2003, Zheng’s attorney had the case transferred to

Boston, then notified the court that he was withdrawing as Zheng’s

counsel. Three months later the same attorney appeared at a

telephonic calendar hearing in Boston, and asserted that he had

agreed to continue his representation of Zheng. The court

scheduled a merits hearing for February 17, 2004, at which Zheng

appeared without counsel. The immigration judge ("IJ") noted the

fact for the record, but without inquiring whether Zheng was still

represented by counsel.

Zheng testified at length regarding the religious

persecution he allegedly suffered in China, stating that he had

“become a Catholic with [his] grandparents” but that his parents
-3-

were not Catholic,” but Buddhists. Zheng was arrested, sometime in

2002, for distributing religious leaflets in public. The arrest

occurred at 10:00 p.m. Zheng was unable to describe the contents

of the leaflets in any detail, except that the leaflets were “about

the Bible and God protecting families.” Zheng maintained that the

police had detained and tortured him for four days, then released

him on “probation” without lodging any charge against him after his

parents posted bail. According to Zheng, the police required that

he report once a week following his release. 

At the conclusion of his testimony, Zheng asked that the

IJ transfer the case to Tennessee, where he was then residing. The

IJ denied the request as untimely, then proceeded to rule on the

merits of Zheng's asylum application. The IJ concluded that

Zheng’s testimony contained several inconsistencies, hence was not

creditworthy. Whereupon the IJ denied the Zheng asylum application

and request for withholding of deportation, then ordered that he be

deported.

On appeal to the Board of Immigration Appeals (BIA),

Zheng contended that (i) the IJ violated his due process rights by

failing to ensure that he was represented by counsel at the merits

hearing, and (ii) the IJ’s credibility determination was not

supported by substantial evidence. After the BIA affirmed the IJ’s

decision, Zheng petitioned for review of the BIA’s decision.
-4-

II

DISCUSSION

A. The Due Process Claim

Zheng reiterates the claim that the IJ was obligated to

inquire, at the February 17, 2004, hearing, as to why Zheng was no

longer represented by counsel. Due process claims asserted in

deportation proceedings are reviewed de novo. See Kheireddine v.

Gonzales, 427 F.3d 80, 83 (1st Cir. 2005). Although the Sixth

Amendment does not accord prospective deportees a right to counsel,

provided by the government, the prospective deportee is entitled to

retain counsel at his own expense. See INS v. Lopez-Mendoza, 468

U.S. 1032, 1038-39 (1984); Nelson v. INS, 232 F.3d 258, 262 (1st

Cir. 2000); 8 U.S.C. §§ 1229a(b)(4)(A), 1362. Zheng contends that

it was insufficient that the IJ informed him of his right to retain

counsel at the outset of his case, but rather the IJ was

constitutionally obligated to remind Zheng of the right to retain

counsel at each and every subsequent hearing held in his case. We

disagree. 

Zheng cites no supportive authority for this contention.

Moreover, an IJ sufficiently informed Zheng of the right to retain

counsel at the very outset of his deportation case, following which

he had thirteen months to arrange for legal representation at the

February 2004 hearing on the merits. See, e.g., Nelson, 232 F.3d

at 262-63; Hidalgo-Disla v. INS, 52 F.3d 444, 447 (2d Cir. 1995)
On appeal, Zheng also contends that the incompetence of his 1

court interpreter in translating Mandarin Chinese resulted in a

deprivation of due process. The alleged translation discrepancies

Zheng identifies – such as the rendering of “Christian” as

“Catholic” – were not sufficiently material to have affected the

IJ’s disposition of the asylum claim. See Harutyunyan v. Gonzales,

421 F.3d 64, 70 (1st Cir. 2005) ("harmless error" review); see also

infra note 2. 

-5-

(rejecting as frivolous the contention that an IJ, who already had

advised alien of his right to retain counsel at two previously

continued hearings, was obligated to remind alien at the third

hearing when he arrived without counsel). The fact that Zheng

ultimately failed to retain counsel to appear at the February 2004

hearing did not obligate the IJ to issue yet another admonishment

or continuance, and the failure to do so did not constitute a

deprivation of due process. See id. at 447 (noting that contrary

rule could result in endless continuances).1

B. The Challenge to the IJ’s Findings of Fact

Zheng next contends that the explicit finding by the IJ

– that Zheng's description of his arrest was not creditworthy – is

not supported by the record. We review adverse credibility

findings under a “substantial evidence” standard, whereby “if we

cannot say a finding that the alien is credible is compelled – then

the decision must be affirmed.” Chen v. Gonzales, 418 F.3d 110,

113 (1st Cir. 2005); see 8 U.S.C. § 1252(b)(4)(B). We defer to the

IJ’s credibility determination where three conditions are met: “(1)

the discrepancies and omissions described by the [IJ] must actually
Zheng alternatively argues that the BIA improperly engaged in 2

de novo factfinding, rather than limiting itself to “clear error”

review of the IJ’s findings of fact, as required by 8 C.F.R. §

1003.1(d)(3). We disagree. Zheng objects, for instance, that the

BIA characterized him as a “Christian,” whereas the IJ had noted

that he was baptized a “Catholic.” As all Catholics are, by

definition, Christians, we are at a loss to see how this

constitutes either a material discrepancy, or a prejudicial

divergence from the IJ’s findings of fact. 

-6-

be present in the record; (2) the discrepancies and omissions must

provide specific and cogent reasons to conclude that the alien

provided incredible testimony; and (3) a convincing explanation for

the discrepancies or omissions must not have been supplied by the

alien.” Hoxha v. Gonzales, 446 F.3d 210, 214 (1st Cir. 2006)

(citing In re A-S-, 21 I & N Dec. 1106, 1109 (BIA 1998)); see Syed

v. Ashcroft, 389 F.3d 248, 252 (1st Cir. 2004). In order to

support a finding that the alien’s testimony was not credible,

however, the discrepancies normally must pertain to facts central

to the merits of the alien’s claims, not merely to peripheral or

trivial matters. See Bojorques-Villanueva v. INS, 194 F.3d 14, 16

(1st Cir. 1999).2

The IJ predicated his credibility determination on the

following facts: (i) Zheng’s testimony as to the month or day of

his arrest was “quite vague”; (2) Zheng testified that his arrest

occurred at 10:00 p.m., yet the arrest notice issued by the public

security department states that Zheng was arrested at 10:30 a.m.;

(iii) Zheng incorrectly testified that he left China in April 2002,

whereas his actual departure date was July 25, 2002; (iv) Zheng
-7-

testified that he could not remember the details of his arrest

without consulting his papers, yet someone subjected to arrest and

torture likely would retain more vivid memories of such details;

(v) Zheng testified that he had been detained for four days,

whereas in an earlier interview with an asylum officer and in his

written asylum application, he stated that he had been detained for

fifteen days; (vi) when asked about the inconsistency, Zheng

testified – for the first time – that he was rearrested after he

subsequently failed to report to the police as required under the

terms of his post-release probation, whereas earlier he had told an

asylum officer that he had complied with the reporting requirement

until he left China; (vii) Zheng was unable to recall in any detail

the religious information contained in the pamphlets that he

assertedly distributed; (viii) Zheng testified that he had been

discharged from his job after his release from prison on April 30,

whereas the discharge notice was issued six days prior to his

release; (ix) the public security department issued Zheng a

resident identification card seventeen days after he departed

China, which the department would not likely have done were Zheng

a fugitive who had failed to check in for his weekly probation

reports; (x) Zheng’s proffered documentation – such as his job

termination notice – appeared to be amateurish forgeries; and (xi)

Zheng’s demeanor during his testimony reflected not only a lack of

confidence, but evasiveness as well.
-8-

On appeal, Zheng challenges only two of the eleven

findings. First, he explains that he did not testify that he was

arrested at 10:00 p.m., but simply that he was distributing

leaflets at 10:00 p.m., and instead, he testified that he was “half

way through” his distribution when the police arrested him.

However, even accepting this proposed interpretation, arguendo, the

IJ would have had to infer that Zheng had planned to distribute

leaflets for at least twenty-four hours, i.e., around the clock

from 10:00 p.m. to 10:00 p.m. the following evening. More

plausibly, the testimony implies simply that Zheng was halfway

through his planned distribution at 10:00 p.m. when he was arrested

(viz., Zheng had begun distributing at 5 p.m. and had planned to do

so until 5 a.m. the next morning). Considering the implausibility

of a twenty-four hour distribution plan, the IJ reasonably could

have concluded that Zheng’s alternative interpretation was

farfetched. Accordingly, we conclude that Zheng’s explanation for

the discrepancy is unconvincing. See Hoxha, 446 F.3d at 214.

Zheng also notes that his testimony – that he was

discharged from his job after his April 30 release from prison –

was found to be incredible by the IJ, given that the discharge

notification was dated six days prior to his release. Zheng

correctly observes that he testified that the discharge occurred

after his arrest (viz., during his detention), not after his

release. Even if an IJ’s credibility determination is based in
-9-

part on an incorrect analysis of hearing testimony, however, we may

nonetheless affirm where we conclude that no realistic possibility

exists that, absent the error, the IJ would have reached a

different conclusion. See Harutyunyan v. Gonzales, 421 F.3d 64, 70

(1st Cir. 2005); see also Liu v. United States Dep’t of Justice,

455 F.3d 106, 110 (1st Cir. 2006). Notwithstanding the IJ’s

erroneous depiction of the Zheng testimony concerning the date of

his job discharge, the IJ enumerated no less than ten other

independent grounds for his credibility determination – all

involving conspicuous facts central to Zheng’s religious

persecution claim – for which Zheng has offered neither adequate

nor convincing rebuttal. See Rodriquez Del Carmen v. Gonzales, 441

F.3d 41, 44 (1st Cir. 2004) (noting that vagueness and

contradiction in material details of an alien’s testimony support

an adverse credibility determination); see also Huang v. Gonzales,

438 F.3d 65, 66 (1st Cir. 2006) (observing “the sheer number of

other discrepancies” in alien’s testimony concerning alleged acts

of persecution). Consequently, we must therefore conclude (i) that

the IJ would have found Zheng's testimony unworthy of credence even

if the IJ had correctly analyzed Zheng’s testimony concerning the

job discharge, and (ii) that the IJ’s adverse credibility

determination is well supported by “substantial evidence.”

The petition for review is denied.