Zheng v. Atty Gen USA

Court Case Details
Court Case Opinion

NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 04-4317

JIN CHAI ZHENG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of a Final Order of the

Board of Immigration Appeals

No. A79 323 265

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 15, 2005

Before: SLOVITER, SMITH and VAN ANTWERPEN, Circuit Judges

(Filed: December 22, 2005)

OPINION

SMITH, Circuit Judge.

Zheng Jin Chai petitions for review of an Order of the Board of Immigration

Appeals (“BIA”) affirming without opinion the decision of the Immigration Judge (“IJ”)

1

denying her application for asylum and withholding of removal.

Because the BIA

1

The IJ also denied Zheng’s request for relief under the Convention Against Torture.

Zheng does not challenge that aspect of the IJ’s order here.

2

affirmed the IJ’s decision without an opinion, we must scrutinize the IJ’s decision.

Dia

v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). The IJ’s findings of fact are

“conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C.

1252(b)(4)(B). This standard requires that the agency support its

§

findings with substantial evidence. Dia, 353 F.3d at 247-48. Substantial evidence is

“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) (quoted in Dia, 353 F.3d at 248).

Zheng alleges that she was persecuted on account of her political opinion because

she was forced to abort two pregnancies while she was living in China. See 8 U.S.C.

§

1101(42) (providing that “a person who has been forced to abort a pregnancy . . . shall be

deemed to have been persecuted on account of political opinion”). Zheng testified that

she was married at the age of 21 in a traditional ceremony to Shu Zhang, that she

discovered that she was pregnant in March 1999 and April 2000, and that she endured, at

the hands of local government officials, forcible abortions on April 1, 1999 and April 15,

2000 at the Hoyu Hospital. Zheng affirmed that she and her husband were saddened by

the loss of their children. As further support for her claim, Zheng offered into evidence

two certificates indicating that she had abortions on April 1, 1999 and April 15, 2000 at

2

The IJ had jurisdiction under 8 C.F.R.

1208.2(b). The BIA exercised appellate

§

jurisdiction pursuant to 8 C.F.R.

1003.1(b). We have jurisdiction over Zheng’s petition

§

for review under 8 U.S.C.

1252.

§

2

the Fujian Province Changle City Hospital.

Zheng testified that after the second forced abortion in April 2000, she and her

family decided that she should leave China and come to the United States. Although her

husband did not want her to go, Zheng left and entered the United States on June 26,

2000. Since her arrival, Zheng gave birth to a daughter in May 2001 and a son on July

31, 2002. Between the births of her children, she married the father of her children. She

affirmed that she did not want to return to China because the birth control officials “will

sterilize me.”

The IJ found Zheng’s testimony not credible and rejected her claim of past

persecution. He explained that Zheng’s story was completely uncorroborated inasmuch

as she failed to produce any pictures of Shu Zhang, any correspondence with Shu Zhang

or any evidence from others confirming that she had actually been married to Shu Zhang.

As a result, the IJ was dubious as to whether Zheng had actually become pregnant during

her marriage in China and whether she was forced to abort two pregnancies. Zheng’s

claim that she became pregnant twice while she was married to Shu Zhang in China was

further undermined, the IJ explained, by the fact that she became pregnant only a few

months after leaving her husband behind in China and arriving in the United States.

The IJ recognized that Zheng had admitted into the record two certificates

indicating that she had abortions in April 1999 and 2000. These certificates, the IJ

explained, failed to support Zheng’s contention that she was forced to abort two

pregnancies inasmuch as the Department of State’s Country Conditions Report indicated

3

that certificates of this nature were only distributed to a patient after a voluntary abortion

so the patient could obtain sick leave.

Noticeably absent from the record, the IJ noted, were copies of Zheng’s

gynecological records from Temple University Hospital in Philadelphia where she

delivered her two children in May 2001 and July 2002. The IJ explained that these

records would have reflected the number of times Zheng was pregnant and the number of

times she gave birth to a child. Although Zheng had been asked by her counsel to

produce these records, she failed to do so. As further support for his adverse credibility

finding, the IJ pointed out several other inconsistencies with Zheng’s testimony.

Zheng’s attempt to establish that she had a well-founded fear of persecution if she

was returned to China was also rejected by the IJ. He explained that the Country

Conditions Report did not support her claim that she would be forced to undergo

sterilization if she were returned to China together with her two children.

The BIA affirmed the IJ’s decision without opinion. Zheng filed a timely petition

for review, contending that the IJ’s adverse credibility finding is not supported by

substantial evidence. We disagree. The IJ provided specific, cogent reasons for finding

Zheng not credible. See Dia, 353 F.3d at 249. Specifically, the IJ explained that without

some evidence to support Zheng’s assertion that she was married to Shu Zhang, there was

no basis to find that she was pregnant in China and forced to abort two pregnancies.

Although there was documentary evidence that Zheng had two abortions, that evidence,

as the IJ explained, was not consistent with an involuntary procedure. Nor do we find the

4

IJ erred by considering the lack of corroborating evidence. The IJ identified the evidence

for which he reasonably expected corroborating evidence, yet Zheng failed to provide an

adequate explanation for its absence. See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.

2001) (observing that BIA’s rule requiring corroboration contemplates identifying facts

for which corroboration is reasonably expected, inquiring whether alien has provided

corroborating information, and considering whether alien has adequately explained failure

to provide corroboration).

The IJ also concluded that Zheng did not establish a well-founded fear of

persecution warranting a grant of asylum. The IJ explained that the Country Conditions

Report failed to support her claim that she would be sterilized if she was returned to

China. Zheng does not dispute the IJ’s determination that the Country Conditions Report

fails to support her claim, she simply argues that there is other documentary evidence

3

from which it could be found that she had a well-founded fear of persecution.

Zheng

fails to recognize, however, that the issue is not whether there is evidence which supports

her claim that she has a well-founded fear of persecution, but whether the evidence in this

record compels that conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

3

Zheng refers to not only documents in the record, but an affidavit of John Aird

submitted in the appeal of Guo v. Ashcroft, 386 F.3d 556, 565 (3d Cir. 2004). Our review
is limited, however, to the administrative record developed in this case. See Dia, 353
F.3d at 249; see also Berishaj v. Ashcroft, 378 F.3d 314, 317 (3d Cir. 2004) (observing in
asylum appeal that the constraints of SEC v. Chenery Corp., 318 U.S. 80 (1943), limit
review to the administrative record and preclude supplementation with a current country
conditions report). Because Aird’s affidavit is not part of this record, we have not
considered its contents.

5

After scrutinizing the evidence in this record, we are not compelled to conclude to the

contrary.

Because the standard for granting withholding from removal is more stringent than

the standard for showing a well-founded fear of persecution, we need not address Zheng’s

argument that her claim for withholding should have been granted. Balasubramanrim v.

INS, 143 F.3d 157, 161 n.8 (3d Cir. 1998) (citing INS v. Cardoza-Fonseca, 480 U.S. 421,

430-31 (1987)); Chang v. INS, 119 F.3d 1055, 1065-66 (3d Cir. 1997).

For the reasons set forth above, we conclude that there is substantial evidence to

support the IJ’s decision. We will deny Zheng’s petition for review.