2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-2009

Zhou v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4621

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1

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________

No. 07-4621

_________

LI QIN ZHOU,

 Petitioner.

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

______________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A77 998 275)

Immigration Judge: Honorable Donald V. Ferlise

_____________________________

Submitted under Third Circuit LAR 34.1(a)

on June 11, 2009

Before: McKEE, NYGAARD and ROTH, Circuit Judges

(Opinion filed: September 3, 2009)

_________

O P I N I O N

_________

PER CURIAM

Li Qin Zhou, a native and citizen of China, entered the United States in April
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2002. She appeared before an Immigration Judge (“IJ”) and conceded that she was

removable for entering without a valid entry document. See Immigration and Nationality

Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I)]. Zhou applied for

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”), on the ground that she suffered persecution in China as a Falun Gong

practitioner. In particular, Zhou claimed that she practiced Falun Gong for one month –

attending one or two meetings and handing out fliers – before the practice was officially

banned. Fearing arrest, Zhou went to live with a friend in another town. The authorities

came to her parents’ home and, because they were unable to locate Zhou, detained and

“mistreated” her father for four months. The IJ denied relief, finding Zhou’s allegations

not credible because of implausibilities and inconsistencies in her airport statement, her

credible fear interview, her asylum affidavit, and her testimony. The IJ also concluded

that Zhou could safely relocate in China and faulted her for failing to provide

corroborating evidence. The Board of Immigration Appeals (“BIA”) affirmed without

opinion.

Zhou filed a petition for review in the United States Court of Appeals for the

Second Circuit. By order entered November 27, 2007, the Second Circuit transferred the

petition for review to this Court. We have jurisdiction under INA § 242 [8 U.S.C.

§ 1252]. Because the BIA affirmed the decision of the IJ without opinion, we examine

the decision of the IJ. See Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005). We
 The provisions of the Real ID Act of 2005 that address the Court’s review of an 1

adverse credibility finding do not apply in this case because Zhou applied for relief before

the Act’s effective date. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007).

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review the factual findings of the IJ, including adverse credibility findings, for substantial

evidence. See Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005). Under this standard,

the IJ’s determinations will be upheld if they are supported by “reasonable, substantial

and probative evidence on the record considered as a whole.” Tarrawally v. Ashcroft,

338 F.3d 180, 184 (3d Cir. 2003) (quotations omitted). Adverse credibility

determinations based on speculation or conjecture are not upheld. See Gao v. Ashcroft,

299 F.3d 266, 272 (3d Cir. 2002). In general, “minor inconsistencies and minor

admissions” are not an adequate basis for an adverse credibility finding. Id. Any

discrepancies must involve the heart of the claim. Id. Furthermore, we must uphold a 1

determination regarding the availability of corroborating evidence unless “a reasonable

trier of fact is compelled to conclude that such corroborating evidence is unavailable.” 

INA § 242(b)(4) [8 U.S.C. § 1252(b)(4)]; see also Sandie v. Att’y Gen., 562 F.3d 246,

252 (3d Cir 2009).

The IJ concluded that Zhou was not credible because she “testified that there were

between 10 and 20 people present [at the Falun Gong meetings she attended] . . . [t]hen

. . . almost immediately changed the testimony, and stated that there were between 20 and

30 people present.” The IJ also found it “quite incredible” that Zhou could not recall the

name of the person who led the meetings. Furthermore, Zhou testified that she lived with
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a friend in the town of Zhi Cheng for two years before coming to the United States, but

her asylum application and airport statement listed Changle City as her last address in

China. The IJ rejected Zhou’s explanation that she provided her parents’ permanent

address in Changle City because the questions were not clear. The IJ also faulted Zhou

for alleging in her credible fear interview that Chinese authorities had destroyed her

house, omitting that claim from her asylum application, and then explaining that it was

the fence that was destroyed and that she did not include it in her application because

“that’s not major.” Finally, without citing any evidence, the IJ saw “no reason why the

police . . . in China would be so interested in the respondent inasmuch as she only

practiced Falun Gong for a month or less.” 

We believe that these adverse credibility determinations are not supported by

substantial evidence. Nevertheless, we conclude that the IJ reasonably required Zhou to

provide corroboration for her claims. See Abdulai v. Ashcroft, 239 F.3d 542, 551-54 (3d

Cir. 2001) (observing that even where an applicant is credible, corroboration may be

required if the applicant is to meet his burden of proof). In denying relief based on a lack

of corroboration, the IJ must conduct the following three-part inquiry: (1) an

identification of 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

she has not, (3) an analysis of whether the applicant has adequately explained her failure

to do so. See Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006). Zhou provided no
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corroborating evidence of her practice of Falun Gong. The IJ noted that Zhou could have

submitted letters from friends or family in China, books that she read in the United States,

or the testimony of her uncle, who lived with her at the time of the hearing. Although

Zhou stated that her family “do[es] not have much education,” she did not adequately

explain why she did not produce the Falun Gong literature or arrange for her uncle to

testify. Under these circumstances, we conclude that substantial evidence supports the

IJ’s determination that Zhou failed to meet her burden of showing that she is eligible for

asylum and withholding of removal. The IJ also correctly determined that Zhou did not

meet the criteria for relief under the CAT because she failed to establish that it was more

likely than not that she would be tortured if removed to China. See 8 C.F.R. §§ 208.16,

208.18. 

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