                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-9-2004

Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3940




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                                                            NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                    No. 03-3940


                                  ZHI XIU ZHENG
                                                     Petitioner

                                          v.

                           JOHN ASHCROFT,
                ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent




                            Petition for Review of an Order
                         of the Board of Immigration Appeals
                                  ( No. A78 221 617 )


                      Submitted Under Third Circuit LAR 34.1(a)
                              Date: November 30, 2004

            Before: RENDELL, ALDISERT and MAGILL 1 , Circuit Judges

                              (Filed December 9, 2004)


                             OPINION OF THE COURT




ALDISERT, Circuit Judge


   1
    The Honorable Frank J. Magill, Senior Judge, U.S. Court of Appeals for the Eighth
Circuit, sitting by designation.
       Petitioner Zhi Xiu Zheng, a native and citizen of China, seeks review of a final

order of removal issued by the Board of Immigration Appeals (“BIA”) on August 28,

2003. The order affirmed the Immigration Judge’s (“IJ’s”) decision to deny Ms. Zheng’s

request for asylum, withholding of removal and protection under the Convention Against

Torture (“CAT”). We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252.

We will deny the petition.

                                             I.

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.

                                             II.

       For a petitioner to establish that she is a refugee eligible for asylum, she must

demonstrate that she is unable or unwilling to return to her country of origin “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)

(2000). A petitioner for asylum bears the burden of supporting her claim through credible

testimony. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). An adverse credibility

finding by the IJ should be supported by specific, cogent reasons for the disbelief in

petitioner’s testimony. Balasubramanrim v. INS, 143 F.3d 157, 161-162 (3d Cir. 1998). In

asserting a claim under CAT, the applicant must establish “that it is more likely than not

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that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.

§ 208.16(c)(2) (2002).

       Where the BIA summarily affirms the IJ’s decision without opinion, we review the

IJ’s opinion. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We review the

IJ’s factual determinations under the substantial evidence standard, meaning that we will

uphold findings “to the extent that they are ‘supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Balasubramanrim, 143 F.3d at

161 (quoting INS v. Elias-Zacarias, 502 U.S. 478 (1992)).

       Here, there is substantial evidence to support the IJ’s adverse credibility finding.

The IJ concluded that Ms. Zheng was not testifying truthfully about the core of her claim,

the forced abortion and the second IUD insertion, because she changed her testimony

when confronted with its impossibility. The IJ also denied Ms. Zheng’s application for

relief under CAT because she did not prove that she would be tortured by the Chinese

government.

       On appeal, Ms. Zheng argues that the BIA erred in: (1) affirming the IJ’s decision

without an opinion and not considering her fresh arguments; and (2) affirming the IJ’s

adverse credibility finding.

       We reject Ms. Zheng’s first contention because the BIA filed a brief opinion.

Moreover, we have approved decisions of our sister Courts of Appeals upholding the

BIA’s right to “simply state that it affirms [the immigration judge’s] decision for reasons



                                              3
set forth in that decision” Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir. 2001)

(quoting Chen v. INS, 87 F.3d 5, 7 (1st Cir. 1996)). We also reject Ms. Zheng’s

contention that the BIA failed to consider her “fresh arguments” because she raised no

new issues before the BIA.

       We now turn to Ms. Zheng’s second contention. She argues that: (1) although

“there may have been some factual omissions and oversights” in her testimony, it was “no

less direct, plausible, consistent and credible in regard to her forced abortion and IUD

insertion” (Pet. br. at 13.); (2) the contradictions did not go to the “heart of her claim.”

(Id. at 14.); and (3) any inconsistencies did not change the truth that she was forced to

undergo an abortion and that an IUD was inserted.

       We are not persuaded by Ms. Zheng’s arguments. Her inconsistent testimony

regarding the identity of the doctors who allegedly performed the coercive birth control

procedures was central to the entire basis of her claim. When testifying, Ms. Zheng stated

“clearly and unequivocally” that two different doctors performed the abortion and the

second IUD insertion. After being confronted with the fact that the same doctor signed

the certificate for the abortion and the second IUD insertion, Ms. Zheng changed her

testimony and claimed she had difficulty remembering because of the “extremely

traumatic” nature of the abortion. Ms. Zheng’s testimony went through several more

revisions. The IJ plausibly concluded that “if the respondent were not thinking very

clearly, and she had any uncertainty about the identity of the doctors, it would have



                                               4
seemed that the respondent would have told that to the Court initially.” (App. at 20.)

       This discrepancy called into question the accuracy of the medical certificates and

raised legitimate concerns about their authenticity. Assuming the documents were

accurate, the truthfulness of Ms. Zheng’s testimony was highly questionable. Under either

scenario, the veracity of her claim that she was forced to undergo an abortion and two

IUD insertions was seriously called into question.

       Ms. Zheng also gave conflicting testimony about the circumstances of her alleged

abortion. On direct examination, she testified that the doctor gave her an injection, which

caused her pain twelve hours later, after which the baby was aborted. On cross

examination, however, Ms. Zheng testified that a nurse gave her the injection and her

baby was aborted two hours later.

       Furthermore, the State Department's Asylum Profile called into question the

validity of Ms. Zheng’s medical certificates from China. The only document resembling

such a certificate that the State Department was aware of was one “issued by hospitals

upon a patient's request after a voluntary abortion.”(App. at 310.)

                                            III.

       We have considered all arguments raised by the parties and conclude that no

further discussion is necessary. We hold that substantial evidence supported the IJ’s

adverse credibility findings and the BIA’s order. Accordingly, we will deny the petition

for review.



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