2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-29-2012

Gan Zhou v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3275

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"Gan Zhou v. Atty Gen USA" (2012). 2012 Decisions. Paper 1238.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3275

___________

GAN MAO ZHOU,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A096-178-252)

Immigration Judge: Honorable Miriam Mills

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 28, 2012

Before: RENDELL, VANASKIE and GARTH, Circuit Judges

(Opinion filed: March 29, 2012)

___________

OPINION

___________

PER CURIAM

Gan Mao Zhou petitions for review of a decision of the Board of Immigration 

Appeals (BIA). For the reasons below, we will deny the petition for review.

Zhou, a native of China, entered the United States on March 12, 2003. On March 

15, 2003, he was charged as removable as an alien present in the United States without 
2

being admitted or paroled. Zhou conceded removability and applied for asylum, 

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

alleged that his girlfriend was forced to undergo an abortion in September 2002 and that 

because he injured a birth control official during a struggle, he would be arrested or 

detained if removed to China. On February 25, 2009, he amended his application to 

assert that in October 2008, he had begun practicing Falun Gong while in the United 

States and would be persecuted based on these beliefs if removed to China. After a 

hearing, an Immigration Judge (IJ) denied relief. The IJ found Zhou credible but 

concluded that he had not provided corroboration for his claims.

The BIA dismissed Zhou’s appeal. It concluded that Zhou did not challenge the 

IJ’s determination that he had not shown past persecution. It agreed with the IJ that Zhou 

had not corroborated his claim that he had a well-founded fear of persecution based on 

his other resistance to the family planning policy. The BIA also agreed with the IJ that 

Zhou had not provided corroboration for his assertion that he would face persecution for 

his practice of Falun Gong. Zhou filed a timely petition for review.

We have jurisdiction under 8 U.S.C. 1252. To establish eligibility for asylum, 

Zhou needed to demonstrate either past persecution or a well-founded fear of future 

persecution on account of race, religion, nationality, membership in a particular social 

group, or political opinion. See Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir. 2005). To 

establish eligibility for withholding of removal, he needed to demonstrate that it was 

more likely than not that his life or freedom would be threatened in China on account of a 
3

protected ground. 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal 

under the Convention Against Torture, he needed to demonstrate that it is more likely 

than not that he would be tortured if removed to China. 8 C.F.R. § 1208.16(c)(2). We 

may not reverse the BIA’s decision unless the record evidence would compel a 

reasonable fact-finder to conclude that Zhou had met his burden. I.N.S. v. Elias-Zacarias, 

502 U.S. 478, 481 (1992).

Zhou argues that he was slapped by a birth control official and threatened with 

arrest. The BIA determined that Zhou did not argue past persecution in his appeal. Zhou 

does not challenge that determination. Even if Zhou had exhausted the argument, those 

acts do not rise to the level of persecution. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d 

Cir. 2004) (beating with sticks by police that produced no injuries needing medical 

treatment not persecution).

As noted above, the BIA determined that Zhou had not corroborated his claims 

that he had a well-founded fear of persecution based on his other resistance to the family 

planning policy or his practice of Falun Gong. Under 8 U.S.C. § 1252(b)(4), we may not 

reverse a determination made with respect to the availability of corroborating evidence 

unless a reasonable trier of fact would be compelled to conclude that such evidence is 

unavailable. Zhou has not pointed to any evidence in the record that compels such a 

finding. Rather, he argues that corroboration is not necessary. However, the BIA may 

require credible applicants to supply corroborating evidence. See Abdulai v. Ashcroft, 

239 F.3d 542, 554 (3d Cir. 2001). 
4

Zhou argues that he did not expect that he would need to produce testimony from 

his brother at the hearing. However, the BIA noted that Zhou testified that he practiced 

Falun Gong where he was living and he lived with his brother for a time. Zhou also 

contends that it was unreasonable for the IJ to have expected Zhou to produce paper 

copies of the website that led him to practice Falun Gong and copies of the flyers he had 

handed out. The BIA pointed out that Zhou had not provided a foundation for the 

photographs he submitted: who took them, where and when they were taken, and how he 

obtained the photographs. The IJ observed that the photographs did not show Zhou 

practicing Falun Gong but rather protesting with signs that were untranslated. It was not 

unreasonable for the BIA to expect Zhou to corroborate his claim of involvement with 

Falun Gong.

With respect to his claim based on other resistance to the family planning policy, 

the BIA concluded that Zhou had neither provided a copy of the notice his parents 

received requesting Zhou to appear before authorities for his altercation with the family 

planning officials nor explained its absence. The BIA noted that statements by Zhou’s 

father and girlfriend did not mention that officials have been looking for Zhou based on 

the altercation in 2002. Zhou does not address or challenge the BIA’s conclusions. 

Zhou has not shown that the record compels a finding of a well-founded fear of 

persecution based on his resistance to China=s family planning policy or his practice of 

Falun Gong. Nor has he shown that his life would likely be threatened on those grounds
5

or that he would be tortured if removed to China. Accordingly, we will deny the petition 

for review.