Filed: Oct. 18, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 10-18-2004 Xiao v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-3905 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Xiao v. Atty Gen USA" (2004). 2004 Decisions. Paper 222. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/222 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the United 2004 Decisions States Court of Appeals for the Third Circuit 10-18-2004 Xiao v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-3905 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Xiao v. Atty Gen USA" (2004). 2004 Decisions. Paper 222. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/222 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
10-18-2004
Xiao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3905
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Xiao v. Atty Gen USA" (2004). 2004 Decisions. Paper 222.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/222
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NOT PRECEDENTIAL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. 03-3905
___________
ZHONG HUI XIAO,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A77 281 330)
___________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 8, 2004
BEFORE: SLOVITER, VAN ANTWERPEN and COW EN, Circuit Judges
(Filed: October 18, 2004)
___________
OPINION
___________
VAN ANTWERPEN, Circuit Judge
Zhong Hui Xiao (“Petitioner”) seeks review of a decision of the Board of
Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”).
The IJ denied Petitioner’s application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), finding Petitioner did not meet the statutory
requirements of the INA and that his story was not credible. The IJ also denied
Petitioner’s application for withholding of removal under the Convention Against Torture
(“CAT”), finding Petitioner failed to demonstrate that it is more likely than not that he
would be tortured upon his return to China. For the reasons set forth below, we deny the
petition.
I. FACTUAL AND PROCEDURAL HISTORY
Since we write only for the parties we need not restate the facts in detail.
Petitioner is a native citizen of the People’s Republic of China (“China”). Petitioner
testified that as a commercial fisherman in China, he owned a boat along with four other
fisherman and paid a monthly tax of 3,000 RBM in connection with his occupation. On
May 18, 1999, after an extraordinarily large catch, Petitioner was approached by three tax
officials who demanded that he pay an additional 3,000 RBM. Petitioner testified that
when he refused to pay the additional money, he was struck by the officials, who then
took his day’s catch, which was worth approximately 6,000 RBM. Petitioner stated that
after this incident the tax officials did not permit him to return to work. On July 7, 1999
Petitioner fled the country.
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On October 5, 1999, Petitioner arrived in the port of Los Angeles as a stowaway.
An asylum officer of the Immigration and Naturalization Service (“INS”) interviewed
Petitioner, determined that he had a credible fear of returning to China, and referred him
to an IJ for a full hearing on his asylum claim. On August 15, 2001, the IJ rejected his
request. On August 29, 2003 the BIA affirmed the IJ’s decision and the Petitioner timely
filed a petition for review. This Court has jurisdiction over the petition for review
pursuant to 8 U.S.C. § 1252(a)(1).
II. STANDARD OF REVIEW
Although review of a final order of removal generally leads us to review the
decision of the BIA, when the BIA merely adopts the IJ’s opinion, we will review the IJ’s
decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
Our scope of review is narrow. We review findings of fact under the substantial
evidence standard. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this
standard, we are bound by the administrative findings of fact unless those findings would
compel a reasonable adjudicator to arrive at a contrary conclusion. See 8 U.S.C. §
1252(b)(4)(B). Because Congress delegated substantial authority under the INA to the
Attorney General, who then vested his authority in the BIA, the BIA’s reasonable
statutory interpretations are afforded deference under Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc.,
467 U.S. 837 (1984). Abdulrahman v. Ashcroft,
330 F.3d 587, 591
(3d Cir. 2003).
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III. DISCUSSION
1. Eligibility for Asylum and Withholding of Removal under the INA
To be eligible for asylum, Petitioner has the burden of establishing that he meets
the statutory requirements of refugee status. Abdille, 242 F.3d at 482. A refugee is one
who is outside his or her country of nationality and will not or cannot return “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)(A).
Withholding of removal has a similar statutory prerequisite that makes it available only
“if the Attorney General decides that the alien’s life or freedom would be threatened in
that country because of the alien’s race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. 1231(b)(3)(A).
To be eligible for asylum or withholding of removal under the INA, Petitioner
must show that the threats he faces arise because of one of the statutorily-protected
grounds. See Gao, 299 F.3d at 272 (citing Navas v. INS,
217 F.3d 646, 655 (9th Cir.
2000)). Although the respondent need not provide direct proof, he must provide some
evidence of those motives. INS v. Elias-Zacarias,
502 U.S. 478, 483 (1992).
Petitioner argues that he met the statutory prerequisites because he was assaulted
by government officials due to his expression of a political opinion about the increased
taxation of his larger catch and his affiliation with a social group, namely fishermen.
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However, the IJ found that the acts of which Petitioner complained only amounted to
either extortion by corrupt officials or a legitimate attempt to tax Petitioner’s abnormally
large catch of fish, and not persecution because of Petitioner’s political opinion or
affiliation with a social group. We may not disturb the IJ’s findings in this regard
because Petitioner has not produced evidence that would compel a different conclusion.
8 U.S.C. § 1252(b)(4)(B). Based on the IJ’s findings, Petitioner failed to meet the
statutory prerequisites for asylum and withholding of removal under the INA. Therefore,
we need not reach the IJ’s determination of credibility.
2. Eligibility for Withholding of Removal under the Convention Against Torture
The Petitioner further claims that the IJ erred in denying him relief under the CAT.
In order to succeed on an application to withhold removal under the CAT, an applicant
must demonstrate that “it is more likely than not” that he will be tortured if removed to
the proposed country. 8 C.F.R. § 208.16(c)(2). The IJ found that the evidence presented
by Petitioner was insufficient to establish a likelihood that he would be tortured. This
Court must sustain the decision of the IJ if the record provides substantial evidence to
support the IJ’s findings. Gao, 299 F.3d at 272. Given the record before us, neither
Petitioner’s claims relating to his experience as a fisherman nor his claim that he will be
tortured for violating China’s immigration laws compel us to overturn the IJ’s decision.
For the foregoing reasons we reject the petition.
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