Filed: Dec. 23, 2010
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-4502 _ XUE QUAN ZHENG, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A097-391-583) Immigration Judge: Honorable Frederic G. Leeds _ Submitted Pursuant to Third Circuit LAR 34.1(a) December 22, 2010 Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges (Opinion filed: December 23, 2010) _ OPINION _ PER CURIAM Xu
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-4502 _ XUE QUAN ZHENG, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A097-391-583) Immigration Judge: Honorable Frederic G. Leeds _ Submitted Pursuant to Third Circuit LAR 34.1(a) December 22, 2010 Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges (Opinion filed: December 23, 2010) _ OPINION _ PER CURIAM Xue..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4502
___________
XUE QUAN ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-391-583)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 22, 2010
Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges
(Opinion filed: December 23, 2010)
___________
OPINION
___________
PER CURIAM
Xue Quan Zheng petitions for review of the Board of Immigration Appeals‟
(“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
1
I.
Zheng is a citizen of China who entered the United States without valid entry
documents and concedes that he is removable on that basis. See 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). He initially sought relief on the grounds that he feared
mistreatment in China on account of China‟s family planning policies and his illegal
departure. An Immigration Judge (“IJ”) denied his claims and the BIA dismissed his
appeal in 2007. Zheng later filed a motion to reopen on the basis of his subsequent
conversion to Christianity. The BIA granted that motion and remanded to the IJ for
further proceedings. Zheng ultimately sought asylum, withholding of removal and relief
under the Convention Against Torture (“CAT”) on the ground that he fears mistreatment
if returned to China because he will join an unauthorized Christian church.
On remand, the IJ heard Zheng‟s testimony and received other evidence, including
the United States Department of States‟ 2007 Profile of Asylum Claims and Country
Conditions and 2008 International Religious Freedom Report. The IJ found Zheng‟s
testimony credible but denied relief. In particular, the IJ concluded that Zheng had not
shown a well-founded fear of future persecution because the reports indicate that the
Chinese government‟s treatment of unauthorized Christian churches varies widely by
group and locale. The IJ also concluded that Zheng had not shown it more likely than not
that he would be persecuted or tortured on return. By order issued November 13, 2009,
the BIA conducted its own review, reached essentially the same conclusions, and
dismissed Zheng‟s appeal. Zheng petitions for review.
2
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We generally review only
the BIA‟s decision, but may look to the IJ‟s decision insofar as the BIA defers to it. See
En Hui Huang v. Att‟y Gen., 620 F.3d 372, 379 (3d Cir. 2010). Zheng argues that we
may review the BIA‟s acceptance of the IJ‟s factual determinations de novo, but that is
not our standard. Instead, we review the factual findings on which the BIA relied for
substantial evidence and may not disturb them unless any reasonable fact-finder would be
compelled to conclude to the contrary. See
id. (citing 8 U.S.C. § 1252(b)(4)(B)). Such
determinations include the BIA‟s assessment of whether an alien has shown a well-
founded fear of future persecution. See
id. at 386-87.1 We review the BIA‟s legal
conclusions de novo, subject to established principles of deference. See
id. at 379.
We find no basis to disturb the BIA‟s rulings in this case. Zheng devotes the
majority of his brief to the BIA‟s rejection of his claim for asylum. Zheng does not claim
to have suffered persecution in the past, so he was required to show that he has a well-
founded fear of persecution in the future. See id. at 380. To do so, he bore the burden of
proving that his fear of future persecution is both subjectively genuine (which is not at
1
The BIA, relying on In re A-S-B-, 24 I. & N. Dec. 493 (BIA 2008), appears to have
reviewed de novo the IJ‟s ruling that Zheng had not shown a well-founded fear of
future persecution. We recently held that A-S-B- is erroneous because the issue of
whether an alien has a well-founded fear of persecution includes a factual component
that the BIA must review only for clear error. See Huang, 620 F.3d at 382. There is
no basis for remand in this regard, however, because the BIA agreed with the IJ even
under the less deferential standard of review. Our standard of review of this issue
remains the substantial evidence standard. See
id. at 386-87.
3
issue) and objectively reasonable.
Id. at 380-81 (citation omitted). “The objective
component of the analysis requires the alien to show that a reasonable person in his
position would fear persecution, either because he „would be individually singled out for
persecution‟ or because „there is a pattern or practice in his home country of persecution‟
against a group of which he is a member.”
Id. at 381 (citation omitted).
The BIA concluded that Zheng made neither showing. As the BIA explained, the
2007 Profile of Asylum Claims and Country Conditions reports that, although the
Chinese government often represses unauthorized Christian activities, the degree of
repression is sporadic and depends on the location, size and nature of the church. (A.R.
148.) The report further states that unauthorized Christian activity is “sometimes quietly
tolerated” and that governmental supervision of such activity in some areas is “minimal.”
(Id.) The BIA also concluded that Zheng‟s fear of individual persecution was “too
attenuated” to meet the standard because he presented no “specific evidence as to which
church he might become affiliated with and what, if any, problems that particular church
has had in the past or problems associated with similar churches[.]” (A.R. 4; BIA Dec. at
2.) Our review of the record confirms that these conclusions are supported by substantial
evidence.
Zheng does not claim that the BIA overlooked any relevant evidence. Instead, as
the Government argues, he essentially asks us to reweigh the evidence in his favor.
Zheng argues the 2007 report was sufficient to show a reasonable possibility of
persecution because it states that unauthorized Christian activity is “often” suppressed but
4
only “sometimes” tolerated. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)
(suggesting that only a ten percent chance of persecution is sufficient to show a
reasonable possibility). Zheng, however, presented no evidence or argument that he
personally will be singled out for persecution based on his religious practice if returned to
China. Instead, he bases his claim on the mere fact that he intends to join an
unauthorized Christian church. Without any further evidence regarding the nature or
location of the church he intends to join, we agree with the BIA that his claim is too
speculative to show a reasonable possibility of persecution.2 Zheng argues that the BIA
engaged in “reverse speculation” in this regard by assuming that he might join a church
that might not be subject to persecution, but that argument stands his burden of proof on
its head. Zheng bore the burden to prove that he faces a reasonable possibility of
persecution if returned to China. As explained above, he has provided no basis to disturb
the BIA‟s conclusion that he failed to do so.
Zheng also argues that the record shows a pattern or practice of persecution of
unauthorized Christian churches in China. Zheng does not cite any authority finding such
a pattern or practice on the basis of a similar record. Cf. Xue Zhen Chen v. Gonzales,
470 F.3d 1131, 1136-38 (5th Cir. 2006) (holding that country reports describing sporadic
persecution of unauthorized Christian activities did not compel the conclusion that there
2
Zheng testified that he has joined the “Ming N Church (phonetic sp.)” in the United
States (A.R.110), but he has not presented any evidence or argument regarding the
nature, location or treatment of that church (if any) in China.
5
is a pattern or practice of persecution in China). The only evidence of record he cites for
this proposition is the 2008 International Religious Freedom Report.3 As the IJ and BIA
explained, however, the 2008 report provides specific examples of repression in some
areas but does not contradict the 2007 report‟s conclusion that repression is inconsistent
and sporadic. (A.R. 272.)4 We cannot say that this evidence compels the conclusion that
that there is a pattern or practice of persecution of members of underground churches
operating in China. See Sioe Tjen Wong v. Att‟y Gen., 539 F.3d 225, 233 (3d Cir. 2008)
(pattern or practice requires persecution that is “„systematic, pervasive, or organized‟”)
(citation omitted); In re A-M-, 23 I. & N. Dec. 737, 740-41 (BIA 2005) (same). Thus, we
agree that Zheng failed to meet his burden of proving eligibility for asylum. For the same
reason, he failed to meet his burden of proving entitlement to withholding of removal.
See Ghebrehiwot v. Att‟y Gen.,
467 F.3d 344, 351 (3d Cir. 2006).
3
The administrative record contains only pages one through fifteen of the report.
(A.R. 272-274, 304-15.) Zheng relies only on those portions and does not argue that
the record is deficient in this regard.
4
To the contrary, the 2008 report states that unauthorized Christian activity
“continued to expand,” (A.R. 304), that “most” Christian groups “no longer operated
in strict secrecy,” (id.), that “[i]n some regions, government supervision of religious
activity was minimal, with registered and unregistered churches existing openly and
receiving similar treatment by the authorities,” (id. at 306), and that “[i]n other parts
of the country unregistered groups grew rapidly and the authorities did not pressure
them to register,” (id.) Zheng quotes the portion of the report stating that “„[d]uring
the period covered by this report, the Government‟s repression of religious freedom
intensified in some areas. . . .‟” (Petr.‟s Br. at 17) (quoting A.R. 272). The remainder
of that sentence goes on to state “including in Tibetan areas and in the Xinjiang
Uighur Autonomous Region (XUAR).” (A.R. 272). Zheng presented no evidence or
argument that he intends to join an unauthorized church in those areas.
6
Finally, Zheng argues that the BIA erred in concluding that he did not meet his
burden of proof under CAT. Zheng argues that he faces torture as an illegal emigrant
returning to China. As the BIA explained, however, it rejected that argument in
dismissing Zheng‟s previous appeal (after which Zheng did not petition for review) and
that claim was not at issue on remand. As the BIA also explained, Zheng presented no
evidence that he more likely than not will be tortured on return to China. See id. at 352.
Accordingly, we will deny the petition for review.
7
