2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-15-2005

Zheng v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-3008

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Zheng v. Atty Gen USA" (2005). 2005 Decisions. Paper 606.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/606
PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________________

No. 04-3008

____________________

QUN ZHENG,

 Petitioner

 v.

ALBERTO GONZALES, ATTORNEY GENERAL

OF THE UNITED STATES OF AMERICA

____________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Board No. A78-864-293)

______________________

Submitted Under Third Circuit LAR 34.1(a)

June 30, 2005

Before: RENDELL, BARRY and BECKER, Circuit Judges

 Opinion Filed: July 20, 2005

CHARLES CHRISTOPHE

ALEKSANDER B. MILCH

MEER M.M. RAHMAN

Christophe & Associates, P.C.

67 Wall Street, Suite 210

New York, NY 10005

Attorneys for Petitioner
2

PETER D. KEISLER

Assistant Attorney General

Civil Division

LINDA WERNERY

JESSICA DUNSAY SILVER

GREGORY B. FRIEL

Department of Justice

Ben Franklin Station

P.O. Box 14403

Washington, D.C. 20044-4403

Attorneys for Respondent

________________________

OPINION OF THE COURT

________________________

BECKER, Circuit Judge.

This is a petition for review by Qun Zheng, a native and

citizen of China, of a decision by the Board of Immigration

Appeals (BIA) affirming, without opinion, a decision by an

Immigration Judge (IJ) denying Zheng’s requests for asylum,

withholding of removal, and relief under the Convention Against

Torture (CAT). Because we find that the IJ’s decision was based

on substantial evidence, we will deny the petition for review.

I.

Qun Zheng, also known as Zhao Xin Zhu, was born in

China in 1989. He claims that his mother was forcibly sterilized

shortly after giving birth to him, because he was her third child and

she had thus violated China’s family planning policy. His father

left China in 1992, and his mother in 1997, leaving Zheng with his

grandparents. Both of Zheng’s parents came to the United States

and petitioned for asylum. Their petitions were denied, although it

appears that they both remain in the United States. See Xiu Jin

Wang v. BIA, 87 Fed. Appx. 209 (2d Cir. 2004) (unpublished

summary order).

Zheng claims that, in April 2002, he wrote an essay called
3

“My Mother” for a school assignment. Zheng’s essay was allegedly

highly critical of the Chinese government, and of his mother’s

forcible sterilization. According to Zheng, in reaction to this essay,

the principal of his school demanded that Zheng write a “selfcriticism” renouncing it. If he failed to do so, he claims, he would

be sent to a juvenile re-education camp.

Zheng relates that the principal sent him home to write his

self-criticism, and that, after discussing the issue with his

grandparents, he decided to go into hiding at his uncle’s house. He

did so some five to eight days later, never having returned to

school. At some point after this, his grandmother came to visit

Zheng in hiding. She allegedly told him that the principal of the

school had called her and told her that if Zheng was found he

would be sent to the juvenile re-education department. She

therefore contacted smugglers to get Zheng to the United States to

be reunited with his parents. After about a week at his uncle’s,

Zheng left with a smuggler, who obtained false documents for him.

After staying in a hotel with the smuggler for some time, he left for

America, and arrived in Chicago on June 10, 2002.

Zheng was stopped at the airport and taken into custody.

Zheng was released from custody in August 2002, and went to live

with his mother in New Jersey. In November 2002, an IJ granted

a change of venue to Newark. Before the IJ, Zheng conceded

removability and applied for asylum, withholding of removal, and

protection under the CAT. An asylum hearing was held on April 2,

2003, in Newark. Zheng presented his own testimony and some

documentary evidence, including a rewritten copy of his “My

Mother” essay (he did not have a copy of the original) and letters

from two school friends corroborating some aspects of his story.

At the close of the hearing, the IJ rendered an oral decision.

He found that, if true, Zheng’s allegations would make out a claim

for asylum, in that he alleged a fear of persecution based on “other

resistance” to China’s family planning policy. See 8 U.S.C.

§ 1101(a)(42). But the IJ determined that Zheng had not met his

burden of establishing persecution because his testimony was not

credible. He therefore denied asylum, withholding of removal, and

CAT protection based on past persecution. He also denied CAT

relief based on Zheng’s alleged fear that, if he returned to China,

he would be tortured for leaving China illegally.

The BIA affirmed without opinion, leaving the IJ’s opinion
Congress has recently revised this judicially created standard to 1

allow a trier of fact to find a lack of credibility based on any

inconsistency or falsehood, “without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Real

ID Act of 2005, § 101(a)(3), Pub. L. No. 109-13, 119 Stat. 231, 303, to

be codified at 8 U.S.C. § 1158(b)(1)(B)(iii). This provision, however,

applies only to applications for asylum made after the effective date of

the Real ID Act, see id. § 101(h)(2), and so does not apply to Zheng’s

case.

4

as the final agency determination. We have jurisdiction over

Zheng’s timely petition for review pursuant to 8 U.S.C. § 1252. 

II.

Because the BIA affirmed without opinion, we review the

IJ’s opinion. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en

banc). The standard of review is the familiar “substantial evidence”

standard: “[T]he administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Adverse credibility

determinations are factual findings subject to substantial evidence

review. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.

2003). But credibility findings must be grounded in the record, id.,

and must be based on inconsistencies and improbabilities that go

to the heart of the asylum claim, Gao v. Ashcroft, 299 F.3d 266,

272 (3d Cir. 2002).1

A.

The IJ found numerous inconsistencies and implausibilities

in Zheng’s evidence. Zheng persuasively disputes several of the

IJ’s findings. Most notably, the IJ found it “utterly implausible”

that the principal would allow Zheng to return home to write his

self-criticism, rather than require him to write it immediately in his

office. The IJ pointed to no basis in the record, or in logic or

experience, for this finding of implausibility. “Adverse credibility

determinations based on speculation or conjecture, rather than on

evidence in the record, are reversible,” Gao, 299 F.3d at 272, and

we reject this conclusion as pure speculation.
5

The IJ also noted that Zheng’s I-589 form, part of his

written asylum application, lists his address as his grandparents’

hometown from birth until June 2002. The IJ found the lack of any

indication that Zheng lived with his uncle, or otherwise in hiding,

important: “The fact that he lived at that address before coming to

the United States, and not at the uncle’s place, or somewhere else,

is very revealing. It constricts [sic] the whole notion of flight.” The

IJ found it a “major significant inconsistency” that Zheng listed

only this one address in China.

Zheng argues that this finding amounts to “no more than a

game of ‘gotcha’ with a juvenile Respondent.” Zheng is a teenager

who speaks little or no English; his mother read over the I-589

form before he signed it, but he apparently did not. Furthermore, as

the form asks aliens to list their “residences during the last five

years,” it would not be unreasonable for Zheng to omit places

where he stayed in hiding for no more than a few weeks. The

omission strikes us as only a minor error, and such “minor

inconsistencies and minor admissions that reveal nothing about an

asylum applicant’s fear for his safety are not an adequate basis for

an adverse credibility finding.” Gao, 299 F.3d at 272 (internal

quotation marks omitted).

In short, we are troubled by some of the reasons underlying

the IJ’s adverse credibility finding. Nonetheless, we are bound to

uphold the IJ’s decision if it is supported by substantial evidence,

and may do so even if we reject some of its bases. See He Chun

Chen v. Ashcroft, 376 F.3d 215, 224-25 (3d Cir. 2004) (finding

substantial evidence for an adverse credibility determination

despite our “extreme discomfiture” with some of the IJ’s specific

findings).

B.

In this case, the most compelling support for the IJ’s adverse

credibility determination comes from the simple implausibility of

Zheng’s story. Zheng’s testimony, his asylum application, and his

supporting documentary evidence all strongly support the IJ’s

conclusion that this case “is all about a young boy wanting to join

his parents,” rather than about an opponent of China’s birth control

policies fleeing governmental persecution. The copy of “My

Mother” in the record, which Zheng allegedly rewrote from
6

memory after arriving in the United States, creates the distinct

impression that it was written solely for asylum purposes. For a

school assignment to write about his mother, Zheng claims to have

written an essay consisting largely of criticisms of “Chinese

government cadres” and admonitions that “the cadres had better

watch their behavior and be nice to ordinary people.” The IJ was

within his rights to suspect the authenticity of this strange and

tendentious essay.

In Jishiashvili v. Attorney General, 402 F.3d 386, 393 (3d

Cir. 2005), we explained the requirement that a credibility

determination based on “implausibility” must be “grounded in the

record”—as, for example, by reference to country conditions—in

order to avoid “speculative or conjectural reasoning.” We think that

the IJ’s implausibility determination here had some basis in the

record, in that there was evidence to support his belief that Zheng

came to America because he missed his parents, not because he

was persecuted. 

C.

At all events, the IJ did not rely on implausibility alone.

Instead, he determined that, due to the inherent implausibility of

Zheng’s story, and the (relatively minor) contradictions in his

testimony, it would not be unreasonable to expect some evidence

to corroborate Zheng’s account. In Abdulai v. Ashcroft, 239 F.3d

542, 551-54 (3d Cir. 2001), we upheld the BIA’s rule on

corroboration set out in In re S-M-J-, 21 I. & N. Dec. 722 (BIA

1997). Under this rule, “(1) an applicant need not provide evidence

corroborating the specifics of his or her testimony unless it would

be ‘reasonable’ to expect the applicant to do so; but (2) if it would

be ‘reasonable’ to expect corroboration, then an applicant who

neither introduces such evidence nor offers a satisfactory

explanation as to why he or she cannot do so may be found to have

failed to meet his or her burden of proof.” Abdulai, 239 F.3d at

551. 

We find no fault with the IJ’s conclusion here that it would

be reasonable to expect corroboration of Zheng’s story. As the IJ

noted, Zheng’s grandparents and uncle are still in China, and lines

of communication remained open. Zheng did not submit any

corroboration from them. Nor did he submit any school records
We are sympathetic to Zheng’s argument that the IJ was merely 2

speculating that such records exist, but we note that the Real ID Act

largely forecloses it. The Act provides that “[n]o court shall reverse a

determination made by a trier of fact with respect to the availability of

corroborating evidence . . . unless the court finds . . . that a reasonable

trier of fact is compelled to conclude that such corroborating evidence

is unavailable.” Real ID Act of 2005, § 101(e), Pub. L. No. 109-13, 119

Stat. 231, 305, to be codified at 8 U.S.C. § 1252(b)(4). This provision is

effective immediately, and applies to Zheng’s petition. See id.

§ 101(h)(3), 119 Stat. at 305-06. We see no compelling reason to believe

that such documents would be unavailable, and therefore cannot reverse

the IJ on this point.

7

indicating that he was suspended for writing his essay.2

Instead, he submitted letters from two friends, which

confirmed the broad outlines of his story. The IJ rejected these

letters, in part because neither mentioned Zheng’s mother’s

sterilization: they merely described “My Mother” as “reactionary,”

without saying that it concerned forced sterilization. Zheng is no

doubt correct that the IJ was unreasonable in assuming that Zheng

would have told his friends about his mother’s sterilization.

Nonetheless, we agree with the IJ that these letters have no

probative value and, in fact, harm Zheng’s case. In particular, one

of Zheng’s friends, Chang Hong Ye, stated that Zheng called him

from the United States in May 2002. In fact, Zheng arrived in this

country in June 2002, and was not released from custody until

August 2002. His own testimony was that he called Ye “[a] week

or two after I could reach my mother’s home,” i.e., in August 2002.

When confronted with this discrepancy, Zheng stated that “it’s

possible that I made a phone call while in my paternal uncle’s

home” in China in May 2002. The IJ was entitled to find that

Zheng’s initial testimony, his later backtracking, and his

corroborative evidence were in hopeless conflict, and thus

damaged his credibility.

In sum, the IJ was confronted with an inherently implausible

story and an applicant who contradicted himself in several places.

He therefore looked for supporting evidence, and found a

suspicious lack of credible corroboration. Given these facts, we can

hardly conclude that “any reasonable adjudicator would be

compelled” to disagree with the IJ. 8 U.S.C. § 1252(b)(4)(B). We
8

will therefore uphold the IJ’s adverse credibility determination.

III.

Zheng also raises a CAT claim, arguing that he will be

tortured if he is returned to China. To the extent that Zheng claims

that he will be tortured for writing “My Mother,” the IJ’s adverse

credibility determination forecloses that claim. To the extent that

Zheng claims that he will be tortured for leaving China illegally,

we lack jurisdiction to hear his arguments, because he failed to

raise them in his appeal to the BIA. See Abdulrahman, 330 F.3d at

594-95; see also 8 U.S.C. § 1252(d)(1). Furthermore, Zheng has

pointed to no evidence, much less compelling evidence, to support

his claim that it is more likely than not that he would be tortured on

returning to China. See 8 C.F.R. § 208.16(c)(2).

For the foregoing reasons, the petition for review will be

denied.