# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued March 1, 2011

Decided March 18, 2011

Before

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 10

‐ 2903

JIADE ZHANG,

Petitioner

,

v.

ERIC H. HOLDER,

Attorney General of the United States,

Respondent

. Petition for Review of an Order of the Board

of Immigration Appeals.

No. A075 929 250

O R D E R

Jiade Zhang, a citizen of the People ʹ s Republic of China, entered the United States

and overstayed his visa by eight years. Once caught and placed in removal proceedings, he

applied for asylum, withholding of removal, and protection under the Convention Against

Torture, alleging that he had been persecuted and tortured by the Chinese government for

having led a workers ʹ rights committee. The Immigration Judge denied Mr. Zhang ʹ s

applications, finding that his request for asylum was time

‐ barred, his testimony was not NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 2903 Page 2

credible, and he did not corroborate his allegations. The Board of Immigration Appeals

dismissed his appeal. Mr. Zhang filed a petition for review, which we now deny.

Mr. Zhang came to the United States on a three

‐ month visa in December of 1999, but

he overstayed his visa and remained here until 2007, when he was arrested for trying to get

a state ID by fraudulently using someone else’s passport and Social Security card.

Immigration and Customs Enforcement took custody of Mr. Zhang and discovered that he

had sought admission to the U.S. under an alias one year before his visa

‐ based visit, but was

found inadmissible and was removed to China. Back again in this country, Mr. Zhang was

charged as removable on two grounds: (1) He was inadmissible when he presented his

three

‐ month visa in 1999 because he had been removed within the five years prior, 8 U.S.C.

§§ 1182(a)(9)(A)(i), 1227(a)(1)(A), and (2) he overstayed his visa, 8 U.S.C. § 1227(a)(1)(B). He

filed applications for asylum, withholding of removal, and protection under the Convention

Against Torture.

At a hearing before the IJ, Mr. Zhang testified that he was first mistreated by the

Chinese government in 1998, in retaliation for his role in a committee he had helped

establish to represent the interests of his fellow workers at a coal mine. According to Mr.

Zhang, after his committee organized a work stoppage that secured some concessions from

the mining company, local police abducted him and detained him for about one month,

allowing him only sporadic meals. He testified that on five occasions the police interrogated

him about instigating an “illegal” strike, shined a bright light in his eyes for hours, and beat

him with electric batons, one time causing him to lose consciousness. Mr. Zhang was able to

escape, he said, after he was transferred to a hospital to treat his injuries; he fled when most

of the hospital staff was away for a holiday. He maintained that he would be persecuted

again if he ever returns to China.

The IJ denied Mr. Zhang’s applications. The judge denied Mr. Zhang’s asylum

application because he did not file it within one year of his arrival. See 8 U.S.C. §

1158(a)(2)(B). In denying other relief from removal, the judge found that Mr. Zhang did not

show a clear probability that he would face persecution or torture if he returned to China

because his testimony was not credible and he provided no corroborating evidence, which

the IJ thought likely available, to support his testimony. Mr. Zhang appealed, and the BIA

dismissed the appeal, concluding that the IJ made no legal errors and the findings were

supported by substantial evidence.

In his petition for review, Mr. Zhang argues that the Board should not have found

that his asylum application was time

‐ barred because he delayed filing out of fear of

persecution if sent back to China. He maintains that this fear is an “extraordinary

circumstance” that justifies an exception to the one

‐ year filing deadline. See 8 U.S.C. §No. 10

‐ 2903 Page 3

1158(a)(2)(D). But the Attorney General’s decision to find extraordinary circumstances is

discretionary (unless he commits a legal or constitutional error, neither of which Mr. Zhang

asserts), and this Court lacks jurisdiction to review it. See 8 U.S.C. § 1158(a)(3); Khan v. Filip

, 554, F.3d 681, 687

‐ 89 (7th Cir. 2009); Ogayonne v. Mukasey

, 530 F.3d 514, 519 (7th Cir. 2008);

Ghaffar v. Mukasey

, 551 F.3d 651, 654

‐ 655 (7th Cir. 2008).

Turning to his claims for withholding of removal and relief under the Convention

against Torture, Mr. Zhang challenges the IJ’s finding, which the Board adopted, that he

failed to show a likelihood of persecution or torture because he did not corroborate his

testimony. Mr. Zhang’s claims are subject to the REAL ID Act, which states that when an IJ

determines that an applicant should provide corroborating evidence for a claim, the

applicant must provide corroborating evidence unless it cannot be reasonably obtained.

8 U.S.C. §§ 1158(b)(2)(B)(ii), 1231(b)(3)(C), 1229a(c)(4)(B); see also Krishnapillai v. Holder, 563

F.3d 606, 618 (7th Cir. 2009); Raphael v. Mukasey

, 533 F.3d 521, 527

‐ 28 (7th Cir. 2008). Before

an IJ may deny a claim for relief from removal based on lack of corroboration, the IJ must

(1) make an explicit credibility finding; (2) explain why it is reasonable to expect additional

corroboration; and (3) explain why the alien’s account for the lack of additional

corroboration is inadequate. Tandia v. Gonzales

, 487 F.3d 1048, 1054

‐ 55 (7th Cir. 2007).

Mr. Zhang first argues that the IJ did not make an explicit credibility finding, but the

IJ did just that. The IJ stated that he “[did] not credit or believe [Mr. Zhang’s] testimony

surrounding his stated persecution.

. . .” This was not a mere “passing reference implying

doubt,” but rather a resolute finding that Mr. Zhang’s testimony regarding his past

persecution was not credible. See Ikama

‐ Obambi v. Gonzales

, 470 F.3d 720, 725 (7th Cir. 2006).

Next, Mr. Zhang argues that he could not reasonably be expected to produce

corroborating documents from his family because they were under surveillance by the

Chinese government. But, as the IJ explained, Mr. Zhang’s excuse was inadequate because

other sources of corroboration were easily obtainable, such as a newspaper account of the

alleged work stoppage, testimonials from other participants in the strike or members of his

committee, or an account from the friend who helped him flee from China. Mr. Zhang

offered no reason for having provided none of this possible corroboration of even the

slightest portion of his story

.

Mr. Zhang finally challenges the IJ’s credibility finding itself, arguing that a finding

of no credibility was not supported by substantial evidence, as required by 8 U.S.C. §

1158(b)(1)(B)(iii). See, e.g., Torres v. Mukaskey, 551 F.3d. 616, 626 (7th Cir. 2008). The IJ cited

several reasons to reject Zhang’s credibility, including that he filed for asylum only when he

was arrested after some eight years living in the U.S. and conceded that he would never

have applied for relief had he not been caught. These reasons are probably sufficient toNo. 10

‐ 2903 Page 4

sustain an adverse credibility finding, a determination to which we would give substantial

deference. See Wang v. Keisler, 505 F.3d 615, 620

‐ 21 (7th Cir. 2007); Dong v. Gonzales, 421 F.3d.

573, 579 (7th Cir. 2005). But we need not decide that issue because Zhang provided no

corroborating evidence; under the REAL ID Act, the IJ was thus authorized to deny Zhang’s

application even if his testimony were credible. See Rapheal, 533 F.3d at 527

.

For the foregoing reasons, we DENY the petition for review.