United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-4131

___________

Hui Zhuang, * 

* 

Petitioner, * 

* Petition for Review of a Final 

v. * Decision of the Board of 

* Immigration Appeals.

Alberto Gonzales, Attorney General * 

of the United States of America, * 

* 

Respondent. *

___________

Submitted: September 29, 2006

Filed: December 22, 2006

___________

Before LOKEN, Chief Judge, SMITH, and GRUENDER, Circuit Judges.

___________

SMITH, Circuit Judge.

Hui Zhuang, a citizen of China, petitions for review of a final order of removal

by the Board of Immigration Appeals (BIA). The BIA summarily affirmed the

decision of the Immigration Judge (IJ) denying Zhuang's applications for asylum,

withholding of removal and relief under the Convention Against Torture (CAT). For

the reasons discussed below, we deny Zhuang's petition.

I. Background

Hui Zhuang, a native and citizen of China, entered the United States without

inspection in 1990. In 1992, Zhuang filed an application for asylum, claiming that
1

Zhuang's initial application for asylum did not allege that his wife was forcibly

sterilized. 

2

Zhuang's ex-wife's naturalization application does not reflect whether she was

forcibly sterilized. 

-2-

because he violated China's one-child policy, he "got [sic] a lot of troubles and was

fined a lot of money" and believed that he had "no freedom in human rights in China."

The Immigration and Naturalization Service (INS) commenced removal proceedings

against Zhuang in 1999. Zhuang conceded removability but renewed his request for

asylum and also requested relief through withholding of deportation and protection

under CAT. In Zhuang's renewed request for relief, he claimed past persecution and

a fear of future persecution because he and his wife had violated China's one-child

policy and his wife had been forcibly sterilized following the birth of their second

child.

Zhuang married Bi Ying Zhang in China in 1984. In 1985, the couple had their

first child, a daughter. In November 1986, they had a second child, a son. In

December 1986, Zhuang's wife underwent a sterilization procedure. Zhuang alleges

that the Chinese government forced his wife to undergo this procedure.1

 Zhuang came

to the United States in January 1990, but his wife and children remained in China. In

November 1996, Zhuang and his wife were divorced in China. In December 1996,

Zhuang's ex-wife married a naturalized American citizen from China. As a result,

Zhuang's ex-wife was issued an immigrant visa, and she and the children came to the

United States in 1998. Zhuang's ex-wife's second marriage ended in divorce in 2002.

She then applied for naturalization in 2004. In her application for naturalization,

Zhuang's ex-wife indicated that she had returned to China for a visit in 2002, staying

37 days before returning to the United States.2

 The ex-wife and children are now

United States citizens.
-3-

The final hearing on Zhuang's claims for relief was originally set for August 9,

2001, but due to several continuances, Zhuang's final merits hearing was not held until

September 16, 2004. At the time of the final hearing, Zhuang and his ex-wife were

working at the same restaurant, living in the same apartment building, and

occasionally living in the same apartment. Because Zhuang's claims for relief were

based on the forced sterilization of his ex-wife, the IJ had informed Zhuang at a

previous hearing that his ex-wife's testimony would be extremely helpful on that issue.

However, at the final hearing, Zhuang was the only witness to testify. Zhuang's exwife did not appear or testify nor did Zhuang provide an affidavit from her. Although

Zhuang submitted documentary evidence that his ex-wife had been sterilized, the

document did not reflect that the procedure was done involuntarily. The other

documents provided by Zhuang were not properly certified as required by 8 C.F.R.

287.6, despite a prior warning from the IJ to Zhuang and his attorney about the

certification requirements. As a result, the IJ gave the uncertified documents little or

no weight.

At the conclusion of the hearing, the IJ denied Zhuang's requests for asylum,

withholding of removal, and relief under CAT, finding that Zhuang lacked credibility

and that he failed to prove that his ex-wife had been forcibly sterilized. Likewise, the

IJ concluded that Zhuang had failed to prove fear of future prosecution and the

likelihood of torture by the government if he was returned to China. The IJ also found

that the country conditions in rural areas of China, such as Zhuang's home province,

had changed, making it lawful for couples to have a second child if the first child was

a girl. The BIA affirmed without comment. Zhuang filed a motion to reconsider,

which was denied, and petitioned this court for review.

II. Discussion

On appeal, Zhuang first argues that the IJ and the BIA erred in denying his

asylum claim, request for withholding of removal, and relief under CAT. Zhuang's

second argument is that his Fifth Amendment rights to due process regarding a full
-4-

and fair hearing were violated because the interpreter assigned to the final hearing was

ineffective.

A. Due Process Claim

As an initial matter, we lack jurisdiction to address Zhuang's due process claim,

and we therefore dismiss that claim. See Alyas v. Gonzales, 419 F.3d 756, 761 (8th

Cir. 2005). (holding that the court lacked jurisdiction to hear inadequate interpreter

due process claim where petitioner argued to BIA that interpreter was inadequate, but

failed to present due process argument). Zhuang asserts a due process deprivation

based upon allegedly ineffective assistance from the interpreter provided for him at

his final hearing before the IJ. However, Zhuang failed to present this argument to the

BIA and jurisdiction before this court is thus lacking. Id. Although Zhuang noted in

his Notice of Appeal that "the interpreter was not competent," he made no mention of

a due process claim.

B. Standard of Review

Turning to Zhuang's other claims for relief, we review questions of law de novo

and review an IJ's fact determinations by applying the substantial evidence test. Turay

v. Ashcroft, 405 F.3d 663, 666 (8th Cir. 2005). Under the substantial evidence test,

"we must affirm if the IJ's decision is supported by reasonable, substantial, and

probative evidence." Id. at 666–67 (citations omitted). We will only reverse factual

determinations "if the petitioner demonstrates that the evidence was so compelling that

no reasonable fact finder could fail to find in favor of the petitioner." Id. at 667

(citations omitted).

The BIA's decision to affirm the IJ without opinion "is committed to agency

discretion and not subject to judicial review." Ngure v. Ashcroft, 367 F.3d 975, 983

(8th Cir. 2004). When the BIA affirms the decision of the IJ without opinion, the IJ's

decision is treated as the final agency decision. Cao v. Gonzales, 442 F.3d 657, 659

(8th Cir. 2006). We must affirm the IJ's decision if it is supported by substantial
-5-

evidence on the administrative record as a whole. Rife v. Ashcroft, 374 F.3d 606 (8th

Cir. 2004). When the IJ has denied asylum, withholding of removal, or relief under

CAT, the petitioner "bears the heavy burden of showing that his evidence 'was so

compelling that no reasonable factfinder could fail to find the requisite fear of

persecution.'" Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir. 2003) (quoting

INS v. Elias-Zacarias, 502 U.S. 478, 483–84(1992)); Onsongo v. Gonzales, 457 F.3d

849, 852 (8th Cir. 2006); see also 8 U.S.C. § 1252(b)(4)(B). That standard is now

codified in 8 U.S.C. § 1252(b)(4)(B). We defer to the IJ's determination of the

petitioner's credibility if the determination is supported by a specific, cogent reason

for the IJ's disbelief. Cao, 442 F.3d at 660; Onsongo, 457 F.3d at 852.

C. IJ's Credibility Determination

The IJ gave several reasons for finding Zhuang not credible. The IJ noted

Zhuang's inconsistent and vague testimony, in particular, contradictions between the

country information and Zhuang's claims. The IJ also considered that Zhuang neither

provided testimony or an affidavit from his ex-wife nor provided sufficiently

authenticated documentary evidence.

Specifically, the IJ noted inconsistencies in Zhuang's testimony regarding his

Chinese residence. Zhuang first testified that he continued to live in the same house

as his wife and children until he came to the United States, but later Zhuang said that

he temporarily moved for two to three years prior to leaving China. Because this

testimony was largely immaterial to Zhuang's claims for relief, these inconsistencies

alone do not vanquish Zhuang's claim of persecution. See Cao, 442 F.3d at 660;

Sheikh v. Gonzales, 427 F.3d 1077, 1080 (8th Cir. 2005) (noting that minor

inconsistencies which do not go to the core of the claim of persecution will not

support an adverse credibility finding).

The IJ also considered Zhuang's ex-wife's failure to testify regarding the alleged

involuntary sterilization significant. "An omission alone is normally insufficient for
-6-

an adverse credibility finding, but if it goes to the 'heart of the asylum claim,' it does

raise a credibility issue." Cao, 442 F.3d at 661 (citing Kondakova v. Ashcroft, 383

F.3d 792, 796 (8th Cir. 2004) (quoting Chebchoub v. INS, 257 F.3d 1038, 1043 (9th

Cir. 2001))). Because the forced sterilization of his ex-wife was central to Zhuang's

asylum claim, the omission of any testimony or affidavit from her is material. Her

absence is particularly puzzling when one considers that the ex-wife worked in the

same restaurant and lived in the same apartment building, and occasionally even the

same apartment as Zhuang. Moreover, the IJ had told Zhuang and his counsel at a

previous hearing that the ex-wife's testimony regarding her sterilization would be

important to his claim.

Additionally, the IJ relied on inconsistencies between Zhuang's statements and

the objective country information. Although Zhuang alleged that his second child

violated China's one-child policy, the country information indicated that when a

couple's first child is a girl, the couple is permitted to try again to have a boy. The IJ

noted that Zhuang and his wife first had a daughter and then a son in compliance with

the policy. Zhuang would therefore not have been in violation of the policy. Whether

the policy was violated goes to the core issue in Zhuang's asylum claim. See Cao, 442

F.3d at 661. Zhuang did not offer any persuasive evidence to support his testimony

regarding his violation of China's one-child policy or China's enforcement of the

policy when a couple first has a daughter then a son. "Without such evidence, there

was reason for the IJ to question the credibility of [Zhuang's] testimony about the

issue." Id. (citing Chen v. INS, 195 F.3d 198, 204 (4th Cir. 1999) (noting that "an

applicant must proffer some additional evidence that his fears of [the Chinese family

planning] policy are objectively reasonable")).

Viewing the record as a whole, we hold that the IJ's credibility assessment was

supported by reasonable, substantial, and probative evidence. The inconsistencies and

omissions in Zhuang's testimony and documentary evidence, combined with the
-7-

discrepancies between the country reports and Zhuang's testimony, are sufficient to

support the IJ's credibility finding. Cao, 442 F.3d at 661.

D. Asylum 

In deciding most asylum cases, "the critical inquiry is whether the applicant has

a well-founded fear of future persecution upon return to his or her country."

Perinpanathan, 310 F.3d 594, 597–98 (8th Cir. 2002) (citing Kratchmarov v. Heston,

172 F.3d 551, 553 (8th Cir. 1999)). To be "well-founded," a fear must be both

"subjectively genuine and objectively reasonable." Id.; Feleke v. INS, 118 F.3d 594,

598 (8th Cir. 1997). Subjectively, the alien must demonstrate, with credible evidence,

that he genuinely fears persecution. Feleke, 118 F.3d at 598. This may be done with

credible testimony. Francois v. INS, 283 F.3d 926, 930 (8th Cir. 2002). Objectively,

the alien must show "credible, direct, and specific evidence that a reasonable person

in the alien's position would fear persecution if returned to the alien's native country."

Feleke, 118 F.3d at 598. This fear "must have [a] basis in reality and must be neither

irrational nor so speculative or general as to lack credibility." Perinpanathan, 310

F.3d at 598. Fears of economic hardship or lack of opportunity do not establish a

well-founded fear of persecution. Feleke, 118 F.3d at 598; Minwalla v. INS, 706 F.2d

831, 835 (8th Cir. 1983).

Where an alien establishes past persecution under one of the qualifying

grounds, there is a presumption of a well-founded fear of future persecution on the

same ground. Francois, 283 F.3d at 930; 8 C.F.R. § 208.13(b)(1). A person who has

been forced to undergo involuntary sterilization is deemed to have been persecuted on

account of political opinion. 8 U.S.C. § 1101(a)(42). Likewise, we allow a male

petitioner to "stand in the shoes of his wife in claiming persecution" if his claim is

based on the forced sterilization of the wife. Cao, 442 F.3d at 660. Thus, the husband

of a woman who has been forcibly sterilized can establish past persecution and a

presumption of a well-founded fear of future persecution if he can establish that the

sterilization was involuntary. However, we are unaware of any authority that expands
-8-

this doctrine to cover a former spouse's involuntary sterilization, even if the

sterilization was performed while the couple was married. But, because Zhuang failed

to establish that his ex-wife's sterilization was involuntary, we need not address the

possible expansion of the rule. Further, Zhuang's fear of persecution is significantly

diminished by the fact that his ex-wife and children remained in China for over 11

years after the sterilization procedure without any proof of harm and that she returned

to China in 2002, staying for 37 days, again without any indication of harm. See

Krasnopivtsev v. Ashcroft, 382 F.3d 832 (8th Cir. 2004) (reasonableness of an asylum

applicant's fear of persecution is diminished when family members remain in the

native country unharmed).

E. Withholding of Removal

An application for asylum automatically includes a request for withholding of

removal. 8 C.F.R. § 1208.3(b); Turay, 405 F.3d at 667. "An alien may not be removed

if the alien shows there is a clear probability that his 'life, or freedom would be

threatened in [the alien's] country because of the alien's race, religion, nationality,

membership in a particular social group or political opinion.'" Turay, 405 F.3d at 667

(quoting 8 U.S.C. § 1231(b)(3)(A)(1999)); Ngure, 367 F.3d at 989. The "clear

probability of persecution" standard for withholding of removal is more rigorous than

the well-founded fear standard for asylum. Rife, 374 F.3d at 613; Wondmneh v.

Ashcroft, 361 F.3d 1096, 1099 (8th Cir. 2004). Thus, an alien who fails to prove

eligibility for asylum cannot meet the standard for establishing withholding of

removal. Ngure, 367 F.3d at 992. Accordingly, Zhuang's withholding of removal

claim must fail. Id.; Turay, 405 F.3d at 667.

F. Convention Against Torture

Under CAT, the petitioner must show that "it is more likely than not that he []

would be tortured if returned to the proposed country of removal." Id. (quoting

Perinpanathan, 310 F.3d at 599); 8 C.F.R. § 208.16(c)(2). "In determining eligibility

under CAT, 'all evidence relevant to the possibility of future torture should be
-9-

considered, including but not limited to: past torture inflicted upon the applicant; the

applicant's ability to relocate to another area of the country where torture is unlikely;

and gross, flagrant, or mass violations of human rights.'" Turay, 405 F.3d at 992

(quoting Ngure, 367 F.3d at 992); 8 C.F.R. § 208.16(c)(3). In light of the IJ's

credibility determination, Zhuang's CAT claim fails also because the record does not

support a finding that it is more likely than not that Zhuang would be tortured if

returned to China.

III. Conclusion

For the foregoing reasons, we deny the petition for relief.

______________________________