Filed: Mar. 15, 2011
Latest Update: Feb. 21, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-2165 _ LIU GUI ZHENG, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On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. A096-336-167) Immigration Judge: Honorable Mirlande Tidal _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 10, 2011 Before: SLOVITER, CHAGARES and WEIS, Circuit Judges (Opinion filed: March 15, 2011) _ OPINION _ PER CURIAM. Liu Gui Zheng petit
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-2165 _ LIU GUI ZHENG, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On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. A096-336-167) Immigration Judge: Honorable Mirlande Tidal _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 10, 2011 Before: SLOVITER, CHAGARES and WEIS, Circuit Judges (Opinion filed: March 15, 2011) _ OPINION _ PER CURIAM. Liu Gui Zheng petiti..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2165
___________
LIU GUI 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. A096-336-167)
Immigration Judge: Honorable Mirlande Tidal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 10, 2011
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: March 15, 2011)
___________
OPINION
___________
PER CURIAM.
Liu Gui Zheng petitions for review of a final order of removal entered by
the Board of Immigration Appeals (“BIA”), which dismissed his appeal of an
immigration judge’s (“IJ”) denial of his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). For the following reasons, we
will deny the petition for review.
Zheng is a native and citizen of the People’s Republic of China. He arrived
in the United States without valid entry documents in November 2004. On the day of his
arrival, he was issued a notice to appear, charging him as being removable pursuant to 8
U.S.C. § 1182(a)(6)(i) (entering the country without being admitted or paroled). He
conceded removability, and later filed an application for asylum, withholding of removal,
and relief under the CAT.
At his hearing before the IJ, Zheng testified that the Chinese government
had persecuted him because it thought that he was promoting Falun Gong. Zheng says
that although he did not practice Falun Gong in China, sometime in 1999 he befriended a
practitioner, who later gave Zheng books and flyers about Falun Gong. In the years that
followed, Zheng read the books in his free time. According to his father, Zheng privately
discussed Falun Gong with his family and expressed displeasure with the way that the
Chinese government treated its practitioners.
In March 2004, Zheng overheard a group of coworkers speaking negatively
about Falun Gong. Convinced that they had been brainwashed by the Chinese
government, Zheng undertook to change their minds, first through debate, and then by
giving them some of the flyers that he had at his home. Later that month, two village
officials met him at his work one morning and escorted him to the village office, where
they interrogated him and tried to force him to confess to spreading Falun Gong. When
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Zheng refused, the officials beat him, burned his hands, and held him without food until
he escaped later that night.
His escape from the office occurred when one of the guards told him to use
the bathroom. Next to the bathroom was a door that led outside. He exited the building
and walked to a nearby riverbank. There, he met his parents, who were waiting for him
with a boat. He took the boat to a neighboring village, where he stayed in an aunt’s
home. Later, Zheng’s parents told him that they had secured his release by bribing one of
the guards at the village office. Zheng stayed with his aunt for a few weeks, and then he
left China for the United States. He said that he has since spoken to his parents on a
number of occasions. They said that in the wake of his departure, village officials
repeatedly came to his home to inquire about his whereabouts. The village officials
began to harass his parents, and eventually, they too moved in with the aunt. Zheng also
testified that he has practiced Falun Gong since arriving in the United States. To support
this claim, he offered the testimony of a fellow practitioner, as well as pictures of him
practicing in front of the Chinese Consulate in New York.
The IJ made an adverse credibility determination, finding Zheng’s
testimony to be “overall unbelievable and implausible.” The IJ pointed to many aspects
of Zheng’s testimony and doubted whether the conversation with the coworkers or the
arrest had occurred at all. Specifically, the IJ noted Zheng’s inconsistent testimony with
regard to the date of his conversation with his coworkers and the result. The IJ found
that, by Zheng’s description of the literature that he gave to his coworkers, he could not
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have expected to persuade them. The IJ also doubted Zheng’s account of his escape from
the village office. First, since the Chinese government does in fact persecute followers of
Falun Gong, the IJ doubted whether Zheng’s family would have been able to pay a bribe
to secure his release. Second, the IJ doubted that, with no contact with his family since
his arrest, Zheng would have known where to go to meet them after he escaped from the
office Finally, the IJ found that Zheng submitted the pictures of him practicing Falun
Gong in front of the Chinese Consulate as an attempt to “manipulate the Court.” In
addition, the IJ was suspicious of Zheng’s seeming lack of knowledge of Falun Gong.
The BIA dismissed Zheng’s appeal. It found that the IJ’s adverse
credibility determination was not clearly erroneous, focusing on Zheng’s inconsistent
testimony with regard to his conversation with his coworkers, his limited knowledge of
Falun Gong, and the implausibility of the account of his escape from the village officials.
Zheng filed a petition for review.
We have jurisdiction to hear this appeal under 8 U.S.C. § 1252(a)(1).
Because the BIA “invoke[d] specific aspects of the IJ’s analysis and fact-finding in
support of [its] conclusions,” we review both the IJ and the BIA’s decisions. See Voci v.
Gonzales, 409 F.3d 607, 613 (3d Cir. 2005). In reviewing an order of removal, “the
administrative findings of fact are conclusive unless any reasonable adjudicator would be
able to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Adverse credibility
determinations must be based on “specific, cogent reasons,” not on “speculation,
conjecture, [. . .] and other wise unsupported personal opinion,” Dia v. Ashcroft, 353
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F.3d 228, 249-50 (3d Cir. 2003) (en banc), or minor inconsistencies that do not go to the
“heart of the asylum claim,” Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002) (quoting
Ceballos-Castillo v. INS,
904 F.2d 520 (9th Cir. 1990). 1
To establish eligibility for asylum, an applicant must show 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. 8 U.S.C. §
1101(a)(42). An applicant who establishes past persecution on account of one of the five
enumerated grounds “triggers a rebuttable presumption of a well-founded fear of future
persecution, as long as the fear is related to the past persecution.” Lukwago v. Ashcroft,
329 F.3d 157, 174 (3d Cir. 2003); 8 C.F.R. § 208.13(b)(1). An applicant seeking
withholding of removal must show that it is “more likely than not” that he or she will be
subject to persecution on account of one of the five enumerated grounds if removed to his
or her home country. Zubeda v. Ashcroft,
333 F.3d 463, 470 (3d Cir. 2003). An
applicant seeking relief under the CAT must show that “it is more likely than not that he
or she would be tortured if removed to the proposed country of removal.” Sevoian v.
Ashcroft,
290 F.3d 166, 175 (2002) (quoting 8 C.F.R. § 208.16(c)(2)).
Although we have reservations about aspects of the IJ’s reasoning, we
conclude that her adverse credibility determination is supported by substantial evidence
in the record, as Zheng’s account of his escape of the village office could have led a
1
Because Zheng applied for asylum before May 11, 2005, we apply the pre-REAL
ID Act standard for credibility determinations. Chukwu v. Attorney Gen. of the United
States, 484 F.3d 185, 189 (3d Cir. 2007).
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reasonable fact-finder to conclude that Zheng lacked credibility. He claimed that he had
no contact with his parents on the day that he was detained, and thus did not know about
the bribe that they had paid until days later. Upon leaving the prison, he said that he
walked for about five minutes to the riverbank, where his parents were waiting with the
boat that took him to his aunt’s house. However, he does not explain how he knew that
his family was waiting on the riverbank, or where along the riverbank they were located.
The account of his escape from the office to his aunt’s houses goes to the heart of his
claim, as it is related to the only instance of persecution that Zheng offers to establish his
claim.
We conclude that the BIA did not err in upholding the IJ’s denial of
Zheng’s asylum claim. Although Zheng’s application sought withholding of removal and
CAT relief, his brief did not specifically address those arguments. Thus, he has waived
his right to challenge the denial of those claims. See Laborers’ Int’l Union v. Foster
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises
it in its opening brief, and for those purposes a passing reference to an issue will not
suffice to bring that issue before this court.”) (internal quotation marks and citation
omitted). Accordingly, we will deny the petition for review.
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