2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-27-2010

Meishan Zhao v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2205

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"Meishan Zhao v. Atty Gen USA" (2010). 2010 Decisions. Paper 874.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2205

___________

MEISHAN ZHAO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A97-371-339)

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 7, 2010

Before: MCKEE, HARDIMAN and COWEN, Circuit Judges

(Opinion filed: July 27, 2010)

___________

OPINION

___________

PER CURIAM

Petitioner Meishan Zhao is a citizen of the People’s Republic of China who

petitions for review of the Board of Immigration Appeals’s (“BIA”) final order of

removal. For the following reasons, we will deny the petition for review.
2

I.

Zhao entered the United States without inspection in March 2003, and in February

2004 filed an affirmative application for asylum and related relief based on her claim that

she had been persecuted in China due to her religion and under the family planning

policy. After an interview with an asylum officer in April 2004, Zhao’s application was

referred to the Immigration Court. Accordingly, in January 2005, the Department of

Homeland Security (“DHS”) issued a Notice to Appear alleging that Zhao was removable

under 8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, Zhao conceded her removability but

renewed her application for asylum and related relief.

Zhao testified that, in October 2000, birth control officials removed her from her

place of work and took her to a hospital where she was forced to undergo an abortion

because she had violated the family planning policy by becoming pregnant while

unmarried. Coworkers witnessed her being taken from the office, and she told a friend

about the abortion. After the abortion, Zhao was harassed at work and was transferred to

an office in the countryside, where she lived with her parents. During this time, she was

very depressed and considered suicide.

In October 2001, Zhao began attending Christian church services at the

recommendation of a friend. She told the congregation about the abortion and thereafter

began attending weekly prayer meetings. Zhao was baptized in July 2002. However, in

November 2002, five police officers disrupted a church gathering, confiscated the
3

parishioners’ bibles, handcuffed the parishioners and took them to the police station. 

Zhao was interrogated and accused of being a member of an “evil cult.” A police officer

also physically abused her, banged her head against the wall, and raped her while she was

in a solitary holding cell. The police officer attempted to rape Zhao a second time, but

she screamed and threatened suicide, which caused the police officer to stop the assault. 

Zhao had permanently damaged her eye when she banged her head against the wall. She

was released from police custody five days later when her parents paid 20,000 RMB. 

Zhao was, however, told to report to the police station once per week. Her family then

paid a snakehead to arrange for her departure from China. Zhao entered the United States

on March 1, 2003. She remains in sporadic contact with her family and some friends in

China. She testified that a “family contact” told her that the police told her parents that if

she returned to China then she would be sent to a forced labor camp.

 The Immigration Judge (“IJ”) denied Zhao’s requests for asylum, withholding of

removal, and relief under the United Nations Convention Against Torture (“CAT”). She

based the decision on her finding that Zhao was not credible, and, alternatively, that she

provided no corroborating evidence to support her claims and thus did not meet the

burden of proof necessary to establish her eligibility for relief. As to the lack of

corroboration, Zhao submitted evidence regarding her identity, but, as the IJ explained,

she did not offer any affidavits from family members or former co-workers, affidavits or

other documentation from the church she attended in China, medical reports confirming
4

the damage to her eye, employment records, or testimony or affidavits from the church

that she attends in New Jersey. Zhao explained her failure to submit supporting evidence

by asserting that was unaware that she needed to do so. The IJ rejected this explanation.

Two weeks later, Zhao filed a motion to reopen before the IJ that included letters

from her mother and a coworker. She also attempted to correct what she contended was

an erroneous translation of the statement attached to her asylum application. Zhao

justified submitting the documents in a motion to reopen by stating that it was not until

the merits hearing that she “first became aware of what corroborative evidence the Court

believes would corroborate her testimony.” The IJ denied the motion, finding that “all of

the evidence proffered could have easily been filed by [Zhao] by the time the hearing

commenced.” The IJ also determined that the evidence did not demonstrate a material

change in Zhao’s case, as is required for reopening.

The BIA dismissed Zhao’s appeal. It did not affirm the adverse credibility finding,

but agreed that the combination of Zhao’s weak testimony and lack of corroboration were

fatal to her claims. Despite Zhao’s argument to the contrary, the BIA concluded that the

IJ appropriately engaged in the corroboration analysis required by Abdulai v. Ashcroft,

239 F.3d 542, 554 (3d Cir. 2001), and agreed that Zhao’s explanation for her lack of

documentation was insufficient. The BIA also affirmed the denial of the motion to

reopen, concluding that Zhao had failed to adequately explain why the documents were

previously unavailable.
 We note that even if we did have jurisdiction to review this claim, it would likely 1

fail. While Zhao was undoubtedly traumatized by the events she described, we have not

held that such trauma relieves a petitioner of the requirement to proffer reasonably

available evidence that corroborates her claim. Cf. Fiadjoe v. Att’y Gen., 411 F.3d 135

(3d Cir. 2005) (noting that the petitioner, whom, for eleven years was held by her father

as a slave and subjected to physical beatings and frequent rape, corroborated her claim

with United States Department of State Country Reports and a report by a psychologist

who treated her for trauma).

5

Through counsel, Zhao now petitions for review of the BIA’s final order of

removal.

II

We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.

§ 1252(a). The BIA’s decision is reviewed under the substantial evidence standard and

will be upheld “unless the evidence not only supports a contrary conclusion, but compels

it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation omitted). 

Zhao argues that the BIA erred in denying her claim based on her failure to

corroborate her claims. In particular, she asserts that she has post-traumatic stress

disorder and that requiring her to corroborate her claims is unreasonable as it would cause

her to relive the trauma that she suffered. However, as the Government asserts, Zhao did

not challenge the corroboration ruling on this basis before the BIA—she asserted

throughout each stage of the proceedings that she was unaware that she was required to

present such evidence not that it was too traumatic for her to do so. This issue is

therefore unexhausted and we lack jurisdiction to consider it. See Bonhometre v. 1
We note that the REAL ID Act amendments regarding credibility and 2

corroboration do not apply to Zhao’s case because she filed her asylum application prior

to the Act’s effective date. See Chukwu, 484 F.3d at 191-92. However, the Act merely

codified existing law regarding corroboration. Id.

6

Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).

Further, substantial evidence supports the BIA’s conclusion that Zhao failed to

meet her burden of proof to obtain asylum by unreasonably failing to corroborate her

claims. To qualify for asylum, an applicant must demonstrate that she has suffered past

persecution or has a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42). 

“Moreover, an applicant for asylum must provide reasonable evidence to corroborate

testimony when it is reasonable [to do so] and there is no satisfactory explanation for its

absence.” Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir. 2009) (citing Toure v. Att’y

Gen., 443 F.3d 310, 323 (3d Cir. 2006)). Accordingly, denial of relief may be predicated

on a failure to corroborate when: “(1) the IJ identifies facts for which it is reasonable to

expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and

(3) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d

185, 191-92 (3d Cir. 2007) (citing Abdulai, 239 F.3d at 554).2

Here, the BIA and IJ engaged in the inquiry required by Abdulai. The BIA agreed

that Zhao should have presented items such as: (1) an affidavit from the friend whom she

told about the abortion, (2) an affidavit from her parents with whom she lived after the

abortion and who paid to have her released from police custody, (3) a medical report
7

concerning her eye injury, and (4) an affidavit from a member of the church that she

attends in New Jersey. Based on the circumstances of this case, we agree with the BIA

that it was reasonable to expect Zhao to submit such supporting evidence. Any argument

that she could not have obtained such evidence is belied by the fact that she offered letters

from her mother and a coworker in her motion to reopen, which was filed soon after the IJ

denied her claims. She also could have visited a doctor in the United States to confirm

that her eye was damaged and/or to substantiate her new claim that she suffers from posttraumatic stress disorder. As the BIA explained, the petitioner’s burden to support her

claim is well-established, see Abdulai, 239 F.3d at 554-55, and we agree that Zhao’s

assertion that she did not know that she had to corroborate her claim is inadequate,

especially as she had been represented by counsel for at least three years prior to the

merits hearing. Thus, we find nothing in the record that would compel us to conclude that

the BIA erred in affirming the denial of her requests for relief.

Because Zhao did not meet her burden of proof as to her asylum claim, her claim

for withholding of removal necessarily fails, as does her claim for protection under the

CAT. See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008).

To the extent that Zhao challenges the denial of her motion to reopen, the BIA did

not abuse its discretion in affirming the IJ’s decision. See Ezeagwuna v. Ashcroft, 325

F.3d 396, 409 (3d Cir. 2003). In removal proceedings, motions to reopen may be granted

when a party seeks to present new evidence that “is material and was not available and
8

could not have been discovered or presented at the former hearing.” 8 C.F.R.

§ 1003.2(c)(1). Zhao did not claim that the letters from her mother and coworker, or the

explanation of the translation error, were not previously available; rather, she asserted

only that she did not know she needed to present such information. This, combined with

her ability to proffer the evidence so quickly after the merits hearing, constitutes

substantial evidence supporting the conclusion that she did not demonstrate that evidence

could not have been obtained in time to be presented at her merits hearing.

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