United States Court of Appeals

Fifth Circuit



## FILED

December 1, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 04-60375

____________

YI WU ZHANG,

Petitioner,

versus

ALBERTO R. GONZALES, United States Attorney General,

Respondent.

Petition for Review of a Final Order of Removal Entered by the

Board of Immigration Appeals

Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Yi Wu Zhang petitions for review of an order of the Board of Immigration Appeals denying

his application for asy lum, wit hholding of removal, and protection under the Convention Against

Torture.

I

Petitioner Yi Wu Zhang (“Zhang”), a citizen of the People’s Republic of China, entered the

United States without inspection. The former Immigration and Naturalization Service (“INS”) issued1 The United Nations Convention Against Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter Co nvention Against

Torture]. S ee Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G,

§ 2242(b), 112 Stat. 2681 (1998).

-2- a Notice to Appear (“NTA”) to Zhang, charging him with deportabili ty under 8 U.S.C.

§ 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. At a

hearing before an immigration judge (“IJ”), Zhang conceded that he was removable as charged but

requested asylum, withholding of removal, and protecti on unde r t he Convention Against Torture 1

bas e d upon his status as a practitioner of Falun Gong, “a movement that professes to help its

practitioners gain self-understanding through spiritual and physical development.” Z hao v. Gonzales

,

404 F.3d 295, 300 (5th Cir. 2005).

On February 4, 2003, the IJ conducted a hearing at which Zhang testified and was given the

opportuni ty to submit evidence in support of his claims. He asserted that, after being introduced to

Falun Gong in March 2001, he periodically met with others to read books, study, and “practic[e]

different things” related to Falun Gong. In October 2001, Chinese po lice allegedly arrived at his

home with an arrest warrant and took him to t he police station where they handcuffed Zhang to a

window for three hours, beat him, and forced him to promise that he would no longer practice Falun

Gong. After twenty days in prison, the police released him. In January 2002, Zhang left China and

settled in Dallas, Texas, where he purportedly resides with other practitioners of Falun Gong. At his

hearing, Zhang produced an unverified copy of a Chinese arrest warrant that he asserts is from his

October 2001 arrest. Zhang also testified t hat he feared returning to China because he would be

arrested and persecuted.

After consid ering the evidence, the IJ denied his applications for asylum, withholding of2 In the alternative, the IJ determined that the treatment Zhang allegedly received did not

constitute persecution such that he could have a reaso nable fear that he would suffer additional

persecution if he were to returned to China.

-3- removal, and relief under the Convention Against Torture, stating that “the Court just, quite frankly,

doesn’t believe this story and believes it’s probably cooked up o r, at t he very least, exaggerated.”

The IJ did not credit Zhang’s claims that he was a practitioner of Falun Gong, that he was persecuted,

or that he feared persecution if forced to return to China. Specifically, the IJ doubted Zhang’s claim

that he practiced in a front yard in Chin a because such a practice would be easily discoverable by

Chinese authorities who were purportedly attempting to suppress Falun Gong activity. The IJ also

noted that Zhang’s testimony was simplist ic, virtually identical to his written statement, and without

the addit io nal persuasive weight of separate detail. Given these credibility concerns, the IJ was

“struck by [Zhang’s] failure to be able to produce either his friends or at least some sworn statement

by them in writing to corroborate his testimony” that Zhang was a practitioner of Falun Gong and a

victim of persecution. 2

II

Zhang challenges the IJ’s factual finding that his testimony was not credible, noting that he

testified in Mandarin Chinese and that the translation may not have been precise. He argues that, if

his account of Falun Gong and his persecuti o n was simplistic, it is only because “the truth is

‘simple.’ ” Zhang argues the merits of his case as well, stating that there is a probability of

persecution and torture if returned home “[b]ecause so many other Falun Gong practitioners [have

been] arrested and tortured” and because he will be punished for leaving the country unlawfully and

for not reporting to the police after his arrest.

Because the Board of Immigration Affairs (“BIA”) affirmed without opinion, the IJ’s decision-4-

became the final agency determination for purposes of this appeal. Soadjede v. Ashcroft , 324 F.3d

830, 831-32 (5th Cir. 2003). The agency’s “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). This

standard essentially codifies the substantial evidence test established by the Supreme Court in INS v.

Elias-Zacarias

, 502 U.S. 478, 481 (1992). Y u v. Ashcroft

, 364 F.3d 700, 702 (6th Cir. 2004); Dia

v. Ashcroft

, 353 F.3d 228, 247-49 (3d Cir. 2003). “We use the substantial evidence standard to

review the IJ’s factual conclusion that an alien is not eligible fo r asylum,” Z hao

, 404 F.3d at 306,

withholding of removal, Zamora-Morel v. INS

, 905 F.2d 833, 838 (5th Cir. 1990), and relief under

the Convention Against Torture, Ontunez-Tursios v. Ashcroft

, 303 F.3d 341, 353 (5th Cir. 2002).

Under this standard, reversal is improper unless we decide “ n ot only that the evidence supports a

contrary conclusion, but [also] that the evidence compels it.” Z hao

, 404 F.3d at 306 (quoting Chun

v. INS

, 40 F.3d 76, 78 (5th Cir. 1994)). “[I]t is the factfinder’s duty to make determinations based

on the credibility of the witnesses.” Id

. (citing Vasquez-Mondragon v. INS

, 560 F.2d 1225, 1226 (5th

Cir. 1977)); see Mantell v. INS

, 798 F.2d 124, 127 (5th Cir. 1986) (“We will not review decisions

turning purely on the immigration judge’s assessment of the alien petitioner’s credibility.”). Still, an

adverse credibility determination must be supported by specific and cogent reasons derived from the

record. S ylla v. INS

, 388 F.3d 924, 926 (6th Cir. 2004); Dailide v. United States Attorney Gen.

, 387

F.3d 1335, 1341 (11th Ci r. 2004); L in v. Ashcroft

, 385 F.3d 748, 751 (7th Cir. 2004); El zour v.

Ashcroft , 378 F.3d 1143, 1150 (10th Cir. 2004); Camara v. Ashcroft , 378 F.3d 361, 367 (4th Cir.

2004); Qin v. Ashcroft

, 360 F.3d 302, 306 (1st Cir. 2004); Dia

, 353 F.3d at 249; Mendoza

Manimbao v. Ashcroft , 329 F.3d 655, 658 (9th Cir. 2003).

Zhang seeks asylum, withholding of removal, and protection under the Convention Against-5-

Torture. Asylum is discretionary and may be granted to “an alien who is unable or unwilling to return

to his home country ‘because of persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.’ ” Elias-Zacarias

,

502 U.S. at 481 (quoting 8 U.S.C. § 1101(a)(42)(A)). “To establish a well-founded fear of future

persecution, an alien must demonstrate a subjective fear of persecution, and that fea r must be

objectively reasonable.” Zhao

, 404 F.3d at 307 (citation omitted) (internal quotati on marks omitted);

see also Lopez-Gomez v. Ashcroft

, 263 F .3d 442, 445 (5th Cir. 2001) (similar). Unlike asylum,

withholding of removal does not require a showing that the peti t ioner has a subjective fear of

persecution. G uevara Flores v. INS

, 786 F.2d 1242, 1250 (5th Cir. 1986). To be eligible, the alien

need only demonstrate a “clear probability” of persecution if returned to his home country. F addoul

v. INS , 37 F.3d 185, 188 (5th Cir. 1994) (citing R ivera-Cruz v. INS

, 948 F.2d 962, 966 (5th Cir.

1991)); see 8 C.F.R. § 208.16(b) (noting that an alien must show that “his life or freedom would be

threatened in the proposed country of removal on account of race, religion, nationality, membership

in a particular social group, or political opinion”). Claims based on the Convention Against Torture

differ from claims of asylum and withholding of removal because all eged mistreatment need not

involve “one of the five categories of race, religion, nationality, membership in a particular social

group or political opinion” and because proof of torture, not simply persecution, is required. E fe v.

Ashcroft

, 293 F.3d 899, 907 (5th Cir. 2002). To obtain relief, an applicant must show that it is “more

likely than not” that he would be tortured if returned to his home country

. Ontunez-Tursios , 303

F.3d at 354 (citing 8 C.F.R. § 208.16(c)(2)).

The IJ’s denial of Zhang’s application for asylum and withholding of removal is supported by

substantial evidence; there is no evidence that compels us to find that Zhang was a practitioner of3 If credible, an alien’s testimony may be sufficient to satisfy his burden of proof without

corroborati on. 8 C.F.R. §§ 208.13(a), 208.16(b); s ee also Abdel-Masieh v. INS , 73 F.3d 579, 584

(5th Ci r. 1996) (indicating that where credibility is not impugned, corroboration is not always

necessary).

4 In deciding whether relief under the Convention is appropriate, the IJ should consider, along

with other evidence:

-6- Falun Gong or that he suffered persecution. Based on the petitioner’s own testimony, the IJ could

reasonably conclude that Zhang had purportedly practiced Falun Gong for a few months, had little

d et ailed understanding of its practices, and fled after one incident with the police. With doubts

regarding his past practice of Falun Gong, the IJ properly noted the absence of any evidence, beyond

the unverified subpoena and arrest warrant, supporting Zhang’s claim. 3 Specifically, Zhang failed to

produce statements or witnes s t est imo ny affirming that he was a practitioner of Falun Gong or

corroborating his claim of arrest and maltreatment. The IJ provided specific, cogent reasons for his

adverse credibility determination that we are unwilling to reevaluate on a cold record. See Efe

, 293

F.3d at 905 (“The panel cannot replace the Board or IJ’s dete rminat io ns concerning witness

credibility

. . . .”). Without a credible showing that he is a practitioner of Falun Gong, Zhang cannot

meet his burden of proving past o r future mistreatment on the basis of “race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).

We treat Zhang’s Convention Against Torture claim separately because he need not prove

persecution to secure relief, only a likelihood of torture. “Torture is defined as any act by which

severe pain or sufferi ng . . . is intentionally inflicted on a person . . . for any reason based on

discrimination of any kind, when such pain or suffering is inflict ed by or at the instigation of or with

the consent or acquiescence of a pu blic official or other person acting in an official capacity.” 8

C.F.R. § 208.18(a)(1). 4 Zhang argues that he will be sanctioned for not reporting to the police after(i) Evidence of past torture inflicted upon the applicant;

(ii) Evidence that the applicant could relocate to a part of the country

of removal where he or she is not likely to be tortured;

(iii) Evidence of gross , flagrant or mass violations of human rights

within the country of removal, where applicable; and

(iv) Other relevant information regarding conditions in the country of

removal.

8 C.F.R. § 208.16(c)(3).

5 Immigration court proceedings generally involve an init ial “master calendar” hearing and,

subsequently, an “individual” hearing. During the master calendar hearing, an IJ advises the alien of

the charges against him. During the subsequent individual hearing, the alien and government counsel

are afforded an opportunity to argue the merits of the case. At the close of the individual hearing,

the IJ typi cally issues a decision on the merits of an alien’s claims. S ee generally U.S. Dep't of

-7- his arrest and for violating Chinese immigration laws. Even if true, we are not compelled to find that

it is more likely than not that he would be tortured. The normal incidents of lawful sanctions do not

constitute torture, and—beyo nd his discredited claims of persecution as a practitioner of Falun

Gong—Zhang has failed to provide any evidence demonstrating that he will face sanctions during his

arrest that are so depraved that they may independently be considered acts of torture. S ee 8 C.F.R.

§ 208.18(a)(3) (“Torture does not include pain or suffering arising only from, inherent in or incidental

to lawful sanctions” but may “include [lawful] sanctions that defeat the object a nd purpose of the

Convention Against Torture to prohibit torture.”).

III

Zhang protests that evidentiary short co mings in his case were unavoidable because he had

insufficient time to prepare. Petitioner’s counsel contends that “[t]here was some confusion” about

whether a scheduled February 3, 2003 hearing was a “master scheduling hearing” or an “individual

hearing” and that, because he believed it to be the former, he did not prepare his case on behalf of his

client. 5 Although the IJ continued the case until the next day, Zhang asserts that a continuance of oneJustice, News Release: Immigration Court Process in the United States, Removal Proceedings, Bond

Redeterminations, Asylum, Convention Against Torture , Apr. 28, 2005,

http://www.usdoj.gov/eoir/press/05/ImmigrationCourtProcess2005.htm (last visited Oct. 3, 2005).

-8- day did not allow him sufficient time to marshal witnesses or obtain statements supporting his claims.

Accordingly, he conte nds t hat his due process rights were violated because he did not have an

opportuni ty to “be heard

. . . at a meaningful time and in a meaningful manner.” A rmstrong v. Manzo

,

380 U.S. 545, 552 (1965) (internal citations omitted) (quotation marks omitted).

“It is well established that the Fifth Amendment entitles aliens to due process of law in

deportati on pro c eedings.” R eno v. Flores

, 507 U.S. 292, 306 (1993); see also United States v.

Benitez-Villafuerte

, 186 F.3d 651, 656 (5th Cir. 1999) (“Aliens who have entered the United States

unlawfully are assured the protecti on of the Fifth Amendment du e process clause.”). While the

requirements of due process are “flexible and call[] for such procedural protecti ons as the particular

situation demands,” Morrissey v. Brewer

, 408 U.S. 471, 481 (1972), the “fundamentals of due

process” are notice, hearing, and an appeal. Harper v. Lindsay

, 616 F.2d 849, 858 (5th Cir.1980);

Nose v. Attorney Gen.

, 993 F.2d 75, 79-80 (5th Cir.1993) (due process includes the right to a hearing

before deportation). “[T]he constitutional adequacy of the exact timing and nature of the required

hearing must be judged by balancing the competing private and governmental interests at stake.”

Haitian Refugee Ctr. v. Smith , 676 F.2d 1023, 1040 (Former 5th. Cir. 1982).

As an init ial mat t er, Zhang waived this claim because he never requested a continuance or

objected to the t iming of the hearing. “It is a well-accepted rule that ‘[a]n appellate court will not

review actions of omission or commission by a [lower] court unless the defendant makes known to

the court the action which he desires the court to take or his objection to the action taken by the court-9-

and the grounds therefor.’ ” W right v. Hartford Accident & Indem. Co.

, 580 F.2d 809, 810 (5th Cir.

1978) (quoting United States v. Thomas

, 429 F.2d 407, 408 (5th Cir. 1970)). “Failure to raise a due

process objection

. . . waives that objection on appeal.” N ewby v. Enron Corp. , 394 F.3d 296, 309

(5th Cir. 2004) (citing Keenan v. Tejeda

, 290 F.3d 252, 262 (5th Cir. 2002)); see also United States

v. Vontsteen

, 950 F.2d 1086, 1089 (5th Cir. 1992) (“No procedural principle is more familiar to this

Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure

to make timely assertion of the right before a tribunal having jurisdiction to determine it.” (quoting

Yakus v. United S tates , 321 U.S. 414, 444 (1944))); T r. of Sabine Area Carpenters’ Health &

Welfare Fund v. Don Lightfoot Home Builder, Inc.

, 704 F.2d 822, 828 (5th Cir. 1983) (“Normally

a party who fails to object to trial court errors waives the right to complain of them on appeal.”).

Even if not waived, we find that the immigration court gave Zhang the opportunity for a

meaningful hearing at a meaningful time becau se he had ample time to prepare statements, obtain

documentary evidence, and marshal witnesses prior to his individual hearing. The INS served Zhang

with an NTA on March 8, 2002. The IJ conducted an initial master calender hearing on March 27,

2002. A second hearing was held on June 27, 2002, at which Zhang indicated his intention to apply

for asylum. At a third hearing on August 19, 2002, Zhang’s counsel asked for more time to prepare

an application for asylum because he was waiting for information from Zhang. The IJ granted a

continuance until October 28, 2002. At this fourth hearing, Zhang submit ted his application for

asylum. The IJ then set a further hearing for February 3, 2003. Zhang’s counsel failed to appear for

this fift h hearing, and the IJ continued the case until the next day. On February 4, 2003, the IJ heard

argument, reviewed the evidence, and denied Zhang’s applications. On the record before us, Zhang

received notice of the proceedings against him and the opportunity to participate in five separat e6 Given the posture of the case, we find Counsel’s asserted belief that the February 3, 2003

hearing was a master calen der hearing untenable. The IJ had already conducted an initial master

calender hearing as well as mult iple additional status hearings. After submitting Zhang’s application

for asylum, he should have expected the next hearing to be on the merits. If he had doubts, Counsel

should have investigated further, rather than assume otherwise and fail to appear.

-10- hearings. After submitting his application for asylum, Zhang had three months to prepare his case

prior to the next scheduled hearing. 6 In this case, the IJ’s failure to afford petitioner additional time

to prepare, sua sponte and w it ho ut notice of any possible prejudice to the applicant, was not a

violation of due process.

IV

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