2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-24-2012

Sui Zhang v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1510

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1510

___________

SUI JING ZHANG;

CHIT FAI WONG,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A098 975 854 and A094 813 828)

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 15, 2012

Before: RENDELL, VANASKIE and GARTH, Circuit Judges

(Opinion filed: August 24, 2012)

___________

OPINION

___________

PER CURIAM

Sui Jing Zhang and Chit Fai Wong, wife and husband, are both natives and 

citizens of China. The couple petitions for review of an order of the Board of 

Immigration Appeals (“BIA” or “Board”) that dismissed their appeal from an 
2

Immigration Judge’s (“IJ”) final removal order, and that denied their motion for a 

remand. We will deny the petition for review.

Zhang, the lead petitioner, sought asylum and related relief from removal based on 

her allegation that she would be persecuted in China because she had violated the 

country’s population policy by having two children in the United States.1

The IJ held that Zhang was required by Board precedent to produce evidence of 

the local enforcement of the birth control policy; 

 Zhang feared 

that she would be forcibly sterilized if she were to be removed to China. In support of 

her claim, Zhang provided, among other things, a document from the village committee 

of her home village (Guacai Village), stating that if she were to return to her hometown, 

she would be required to “positively undergo sterilization” under the local law, and be 

required to pay a “certain amount of social raising fee for her children’s household 

registration.” A.R. 749. Zhang also testified that if she and her family would return to 

China, they would reside in her husband’s village, Yang Fu San, which is “very close” to 

Guacai Village. A.R. 374.

i.e.

 1 Wong would be a derivative beneficiary if his wife were granted asylum.

, evidence regarding how the policy 

is enforced in her husband’s village, where they would be residing. The IJ determined 

that a continuance to allow Zhang to obtain such evidence was not necessary, as the case 

had been pending for many years, and there was no evidence that Zhang had somehow 

been precluded from obtaining that evidence previously. Because Zhang had not met her 
3

burden of producing corroborating evidence, the IJ denied relief.

In their brief to the BIA, the couple argued that the IJ erred in requiring 

corroboration from Wong’s village regarding enforcement policies. They argued that the 

record established that policy is set on the provincial level, and that, in the alternative, 

Zhang’s village would still have the authority to sterilize Zhang, even if she were living 

in Wong’s village.2

The BIA noted that the main issue on appeal was whether the IJ complied with the 

corroboration requirements we set forth in 

 They also argued that requiring a letter from Wong’s village was 

unreasonable, as it was too limited in geographic scope, and, even if it were reasonable, 

the IJ erred in failing to grant a continuance so that Zhang could obtain such a document. 

A.R. 119-27. Zhang also submitted an “updated” asylum application and statement, with 

numerous articles, pictures, and a letter describing her recent conversion to Christianity 

and baptism. A.R. 7-95. The statement says that Zhang “was baptism [sic] on October 

24, 2011,” that she will “go to underground churches” if she returns to China, and that “I 

will be arrested or persecuted for my activity of attending an underground church.” A.R. 

77.

Abdulai v. Ashcroft

 2 Petitioners do not pursue the latter claim in their brief in this Court; thus, we will not discuss it 

further.

, 239 F.3d 542, 554 (3d 

Cir. 2001), and other cases, namely: “(1) an identification of the facts for which it is 

reasonable to expect corroboration; (2) an inquiry as to whether the applicant has 

provided information corroborating the relevant facts; and, if he or she has not, (3) an 
4

analysis of whether the applicant has adequately explained his or her failure to do so.” 

Id. (internal quotation and citation omitted). The BIA determined that the IJ properly 

followed these requirements, and further agreed with the IJ that Zhang had not shown 

good cause for a continuance. The BIA held that the IJ had thus properly denied 

asylum.3

We have jurisdiction under 8 U.S.C. § 1252. To establish eligibility for asylum, 

Zhang needed to demonstrate either past persecution or a well-founded fear of future 

persecution on account of race, religion, nationality, membership in a particular social 

group, or political opinion. 

 The BIA construed Zhang’s submission of new evidence as a motion for 

remand, and denied the motion. The Board noted that Zhang had “not established, much 

less alleged that the Chinese government is or would become aware of her Christian 

practice in the United States,” and noted that “the proffered evidence relate [sic] to 

various populations in China and is distinguishable from [Zhang’s] circumstances, as an 

individual who converted to Christianity in the United States.” A.R. 5. The BIA 

determined that Zhang had failed to establish prima facie eligibility for asylum relief 

based on her Christianity. The couple filed a timely petition for review.

See Wang v. Gonzales

 3

 The BIA stated that Zhang did not “meaningfully challenge the [IJ’s] denial of her application 

for asylum, based on leaving the country without permission, withholding of removal, and 

protection under the Convention Against Torture (‘CAT’).” A.R. 3. The BIA considered those 

issues waived. Zhang has not contested that conclusion. We thus will not consider those forms 

of relief.

, 405 F.3d 134, 139 (3d Cir. 2005)

(person who has well-founded fear that she will be subjected to involuntary sterilization 

is deemed to have well-founded fear of persecution on account of political opinion). 
5

“Whether an asylum applicant has demonstrated past persecution or a well-founded fear 

of future persecution is a factual determination reviewed under the substantial evidence 

standard.” Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005). We may not reverse the 

BIA’s decision unless the record evidence would compel a reasonable fact-finder to 

conclude that Zhang had met her burden. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 

(1992). An IJ can require corroboration of a claim, even from a credible applicant. 

Shardar v. Ashcroft

We agree with the IJ and the BIA that it was reasonable to expect Zhang to 

produce corroboration of her claim that she would be sterilized if she were to return to 

her husband’s village. Indeed, Zhang seems to concede as much, but she argues that 

evidence that she would be sterilized if she returned to her home village is sufficient to 

show that she would likewise be sterilized if she returned to her husband’s village. We 

agree with Zhang that there is some evidence in the record that population control policy 

is set at the provincial level. The record contains the population regulations for Zhejiang 

Province, the province that contains both of the villages in question. A.R. 763-72. The 

regulations provide that “oversea [sic] Chinese [who] have moved back to live in China,” 

in certain circumstances not applicable to Zhang and Wong, can apply to have one more 

child. A.R. 765. But the regulations do not state that a couple returning from overseas 

with two children must be sterilized and fined. The regulations also state that “[t]he 

village office and street offices are responsible for carrying out the daily work of 

planning birth.” A.R. 763. One could infer that Zhang’s village has more stringent 

, 382 F.3d 318, 323 (3d Cir. 2004).
6

enforcement policies than the province requires. Thus, the record evidence does not

compel us to conclude that Zhang has met her burden of showing that she has a wellfounded fear of persecution in her husband’s village.

We further agree that the IJ did not abuse her discretion in failing to grant a 

continuance. Zhang was on notice that it was her burden to show that she had a wellfounded fear of future persecution if she were to return to China. Presumably, she also 

knew that she would be returning to her husband’s village rather than her own village. 

She did not (and has not) alleged that she would be unable to obtain information from her 

husband’s village regarding its enforcement of the population policy. See

Finally, we agree with the Board that Zhang failed to establish a prima facie case 

that she would be eligible for asylum based on her conversion to Christianity.

BIA decision, 

A.R. 4-5 (“We note that nearly 2 years has elapsed since the [IJ] rendered her decision on 

February 19, 2010, and [Zhang] has not presented any evidence regarding the [coercive 

population control] policies in the husband’s village; nor has she offered any explanation 

as to why she has not obtained or been unable to obtain [sic] the policies.”).

4

 4 “The BIA treats a motion to remand for the purpose of submitting additional evidence in the 

same manner as motions to reopen the record.” Huang v. Att’y Gen., 620 F.3d 372, 389 (3d Cir. 

2010) (citing 8 C.F.R. § 1003.2(c)(4)). “[W]hen the Board or an Immigration Judge denies 

reopening [or remand] on prima facie case grounds, the ultimate decision should be reviewed for 

an abuse of discretion, while findings of fact should be reviewed for substantial evidence.” 

Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). The Board abuses its discretion only 

where the ultimate decision denying reopening was arbitrary, irrational, or contrary to law. See

Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

 Zhang did 

not assert that the Chinese government is aware, or would become aware of her 

Christianity. Although she stated that she would attend an “underground church,” it is 
7

not clear which church she would attend in China. While Zhang submitted evidence 

reporting problems experienced by Christians in China, she did not explain how the 

evidence she submitted related to her or to how she would practice her religion in China. 

Accordingly, the Board did not abuse its discretion in denying her implicit motion for 

remand.

For the foregoing reasons, we will deny the petition for review.