Filed: Oct. 20, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 10-20-2004 Zhoa v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1293 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Zhoa v. Atty Gen USA" (2004). 2004 Decisions. Paper 207. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/207 This decision is brought to you for free and open access by the Opinions of th
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 10-20-2004 Zhoa v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1293 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Zhoa v. Atty Gen USA" (2004). 2004 Decisions. Paper 207. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/207 This decision is brought to you for free and open access by the Opinions of the..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-20-2004
Zhoa v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1293
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Zhoa v. Atty Gen USA" (2004). 2004 Decisions. Paper 207.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/207
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 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-1293
LIANGMING ZHAO,
Petitioner
v.
John Ashcroft, ATTORNEY GENERAL OF UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of Removal from
the Board of Immigration Appeals
File: A78-206-646
Submitted Under Third Circuit LAR 34.1(a)
September 20, 2004
Before: McKEE, ROSENN and WEIS, Circuit Judges
(Opinion filed: October 20, 2004)
OPINION
McKEE, Circuit Judge.
Liangming Zhao petitions for review of the Board of Immigration Appeals’
removal order. Because we find that the BIA’s decision is supported by substantial
evidence, the decision will be affirmed.
I.
Zhao is a native and citizen of the People’s Republic of China. A.R. 29. He
entered the United States on M arch 13, 1999 and obtained a non immigrant B2 visitor’s
visa which permitted a one month stay. Zhao thereafter submitted an application for
asylum and withholding of removal based on his religious beliefs and China’s family
planning policies. A.R. 334. In the affidavit attached to his application, Zhao alleged
that he and his mother were Christians and that they had attended a government
sponsored church in China. According to Zhao, when church members grew dissatisfied
with the Communist party’s influence over the church’s religious activities, Zhao’s
mother began holding services in her home. A.R. 342. She stopped hosting these
religious gatherings in response to pressure from the police and Zhao then began having
them at his own home. Zhao alleges that he was detained for 15 days after the police
raided his home during one of these worship services in June of 1997. Later that year in
December, Zhao was allegedly sent to a reeducation labor camp for one year after the
police raided his home for a second time. Zhao alleges that he was tortured and forced to
work at the camp and that his wife was forced to have an abortion. He also claims that
the authorities threatened them both with sterilization for violating China’s family
planning policy.
Id.
Zhao conceded removability before the Immigration Judge but argued his claim of
asylum and withholding of removal. He also asked for relief under the Convention
Against Torture but requested voluntary departure in the alternative. During the removal
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hearing, Zhao testified that his wife gave birth to their first child on October 6, 1991.
A.R. 81. Six months later, his wife was required to have an Intrauterine Device.
However, when she went to have the IUD inserted, the clinic allegedly discovered that
she was again pregnant and forced her to have an abortion. A.R. 113-114. According to
Zhao, his wife’s heart problems caused her to have the IUD removed at a private clinic.
Zhao testified that his wife subsequently became pregnant and gave birth to their second
daughter.1 A.R. 117.
The Immigration Judge found that Zhao lacked credibility, denied his applications
for asylum, withholding of removal, relief under the Convention Against Torture and
voluntary departure; and ordered his removal from the United States. A.R. 44. The IJ’s
adverse credibility finding was based on several factors including the fact that Zhao could
not precisely remember when his wife was forced to have an abortion, Zhao’s lack of
detail and corroboration documentation, internal contradiction in Zhao’s testimony, the
fact that Zhao was able to keep his passport while at the labor camp and did not have
problems with Chinese authorities when he left China, the fact that Zhao was not wanted
in China and his family has never been imprisoned; and Zhao’s lack of knowledge about
the Christian religion despite his testimony about involvement with, and attendance at,
religious services. A.R. 38-42.
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Zhao alleges that his eldest daughter has a brain tumor and that she cannot benefit
from the national health care system because they violated the family planning policy.
A.R. 123.
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The IJ also explained that even if he had found Zhao credible, he would still have
denied Zhao’s applications for relief because Zhao’s experiences with officials in China
did not constitute “persecution”, A.R. 42-43. Finally, the IJ held that even if the record
established “persecution,” Zhao would not be entitled to relief because the record
established that conditions have changed in China since Zhao left. Specifically, the IJ
found that based on State Department reports, Chinese authorities would now permit
Zhao’s participation in religious gatherings in the home. A.R. 42-44. The BIA issued a
per curiam order affirming the IJ’s decision without opinion pursuant to 8 C.F.R. §
1003.1(e)(4) on January 10, 2003. This appeal followed.
II.
We have jurisdiction to review final orders of an administrative agency.
8 U.S.C. § 1252 (a)(1). Administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to reach a contrary conclusion. Dia v.
Ashcroft,
353 F.3d 228, 247-48 (3d Cir. 2003) citing 8 U.S.C § 1252(b)(4)(B). We affirm
the IJ’s findings as long as they are supported by “substantial evidence.” “Substantial
evidence is more than a scintilla, and must do more than create a suspicion of the
existence of the fact to be established.”
Id. at 248. The Supreme Court has stated that
substantial evidence “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” N.L.R.B. v. Columbian Enameling & Stamping Co.,
306 U.S. 292, 300 (1939).
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III.
To establish a claim for asylum or withholding of removal, an applicant must
establish that he/she is a “refugee.” 8 C.F.R. § 208.13(a). A “refugee” is defined as:
Any person who is outside any country of such person's nationality
or, in the case of a person having no nationality, is outside any country
in which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that 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.
8 U.S.C. §1101(a)(42).
An alien can prove that he/she has a “well founded” fear if a reasonable person in
the alien’s circumstances would fear persecution. A rebuttable presumption of a well
founded fear is established if an alien can prove past persecution. 8 C.F.R. §
208.13(b)(1). However, the presumption can be rebutted if there has been a “fundamental
change . . . in the applicant’s country.”
Id. at (i)(A).
To obtain withholding of removal, the alien must establish that his/her life or
freedom “would be threatened” because of one of the aforementioned statutory grounds if
he/she were forced to return home. 8 U.S.C. § 1231(b)(3). This means that the alien
must demonstrate a “clear probability” that he/she would be subject to persecution upon
removal. INS v. Stevic,
467 U.S. 407 (1984).
III
Our review of this record establishes that the IJ’s conclusion is supported by
5
substantial evidence. Nevertheless, although we affirm the decision of the IJ because it is
supported by substantial evidence, we think it necessary to note our concern with one
aspect of the IJ’s decision. The IJ states that there is a contradiction between the dates of
Zhao’s employment listed on his I-589 form and Zhao’s testimony regarding when he was
allegedly held in the labor camp. A.R. 41. Zhao testified that he was sent to the labor
camp in December of 1997. A.R. 103- 104. The IJ believed Zhao was employed until
March 1999. A.R. 134. However, Zhao lists his employment in China as being from
1986 until December 1997. A.R. 335. That is not inconsistent.
We are also concerned that the IJ expected formal documentation of the abortion
and sterilization of Zhao’s wife. Patients are not given documentation of medical
procedures even in the highly documented and computerized medical world in the United
States. The record does not establish that it would be reasonable to expect Zhao to have
documentation for that kind of medical procedure in China.
The IJ also appears to have ignored information from the 1998 country profile that
corroborates Zhao’s testimony regarding fear of persecution. For example, the profile
states that “unregistered Christians in China include . . . ‘house church’ Protestants.”
Repression . . . has reflected official concern over the Government’s
inability to control the rapid growth of membership in Christian groups.
Local authorities have used threats, demolition of unregistered property,
fines, interrogation, detention and reform-through-education sentences.
A.R. 162.
However, notwithstanding these concerns, substantial evidence remains to support
6
the finding that Zhao was not credible. For example, the IJ’s concerns regarding the other
discrepancies between Zhao’s I-589 and his testimony are supported by the record. The
IJ’s concern regarding the vague nature of testimony regarding torture is appropriate, and
concern over whether a photo of a worship meeting was staged is supported by the Zhao’s
own testimony. A.R. 128-34, 146-47.
IV.
Based on the foregoing analysis, we will affirm the BIA’s decision.
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