Wei Zheng v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : The petition for review is DENIED. Decision not for publication. Alan E. Norris, Eric L. Clay, and Raymond M. Kethledge, Circuit Judges.

Case: 13-3922

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0323n.06
No. 13-3922
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Apr 25, 2014

WEI ZHENG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: NORRIS, CLAY, and KETHLEDGE, Circuit Judges.
PER CURIAM. Petitioner Wei Zheng, a native and citizen of the People’s Republic of
China, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing
his appeal from the denial of his application for asylum and withholding of removal. We deny
the petition for review.
Zheng was arrested at a Texas border patrol checkpoint in 2008. During a credible-fear
interview with an asylum officer, Zheng asserted that police in China arrested, detained, and beat
him for helping to distribute flyers about Falun Gong. After the asylum officer found that Zheng
demonstrated a credible fear of persecution, the Department of Homeland Security issued a
notice to appear charging Zheng with removability as an immigrant who, at the time of his
application for admission, was not in possession of a valid entry document. See 8 U.S.C.
§ 1182(a)(7)(A)(i)(I).

Conceding removability, Zheng submitted an application for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”), in which

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he claimed that the Chinese government persecuted him because of his involvement with Falun
Gong and that he will be arrested and beaten if he returns to China. In a supplemental statement,
Zheng asserted that he began practicing Falun Gong and attending demonstrations after his
arrival in the United States and that the police frequently threaten and harass his family in China,
directing his family to tell him to stop attending Falun Gong activities abroad and to come back
to surrender.
After a hearing, an immigration judge (“IJ”) denied Zheng’s application and ordered his
removal to China. The immigration judge concluded that: (1) Zheng failed to establish past
persecution; (2) he was not credible and failed to establish through corroborating evidence or his
own testimony a well-founded fear of persecution if he returns to China on account of his
involvement with Falun Gong; (3) he failed to meet the higher standard for withholding of
removal; and (4) he failed to demonstrate that it is more likely than not that he would be tortured
if he returned to China.
On appeal, the BIA affirmed the IJ’s determination that Zheng failed to provide credible
testimony or sufficient corroboration. The BIA concluded that Zheng therefore failed to satisfy
his burden of proving eligibility for either asylum or withholding of removal and that he also
failed to demonstrate that it is more likely than not that he would be tortured if removed to
China. Accordingly, the BIA dismissed Zheng’s appeal.
In support of his petition for review, Zheng asserts that the BIA erred in finding that he
was not credible and that he failed to properly corroborate his claims even if assumed credible.
Therefore, Zheng contends, he should have been granted asylum and withholding of removal.
Zheng has abandoned his claim for protection under the CAT by failing to assert it before this
Court. See Hachem v. Holder, 656 F.3d 430, 433–34 (6th Cir. 2011).

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Where, as here, “the BIA reviews the immigration judge’s decision and issues a separate
opinion, rather than summarily affirming the immigration judge’s decision, we review the BIA’s
decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.
2009). “To the extent the BIA adopted the immigration judge’s reasoning, however, this Court
also reviews the immigration judge’s decision.” Id. We review factual findings, including
credibility determinations, for substantial evidence, reversing “only if any reasonable adjudicator
would be compelled to conclude to the contrary.” Hachem, 656 F.3d at 434.
With respect to the adverse credibility determination, Zheng contends that there was no
discrepancy as to the number of policemen at the scene of his arrest. Zheng asserted in his
credible-fear interview and in his application that only one policeman was present at his arrest
but testified at the hearing that there were two policemen. This inconsistency is supported by the
record. According to Zheng, whether he used a fake passport with his own name or someone
else’s name is “a nit-picky point.” However, under the REAL ID Act, an adverse credibility
determination may be based on inconsistencies regardless of whether the inconsistency goes to
the heart of the applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii); El-Moussa v. Holder, 569 F.3d
250, 256 (6th Cir. 2009); see also Slyusar v. Holder, 740 F.3d 1068, 1073 (6th Cir. 2014)
(“[E]ven ancillary inconsistencies in a petitioner’s testimony support adverse credibility
determinations.”). Citing cases from another circuit, Zheng argues that, to support an adverse
credibility determination based on lack of responsiveness, the IJ was required to make a
concurrent notation on the record that Zheng was being evasive or nonresponsive. However, this
Court’s case law does not include such a requirement. Instead, this Court only requires that an IJ
state specific reasons for adverse credibility determinations. See, e.g., Abdulahad v. Holder,
581 F.3d 290, 294–95 (6th Cir. 2009). In the instant case, the IJ gave specific examples of

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Zheng’s lack of responsiveness, noting that he “was not responsive to questions about his Falun
Gong practices and had to be asked several times” and that he “gave vague answers” when asked
about the tenets and benefits of Falun Gong. (A.R. 66). The IJ’s finding that Zheng was not
responsive is supported by the record, and we defer to that finding. See Gjolaj v. Keisler, 252 F.
App’x 64, 68 (6th Cir. 2007). Zheng also challenges the finding that it was implausible that his
parents were able to borrow 500,000 RMB to pay a snakehead to smuggle him out of China but
not 200,000 RMB to pay for medical treatment for his mother’s life-threatening illness. Zheng’s
post hoc explanation that he could earn substantially more money in the United States to pay off
a loan is absent from the record and is not supported by evidence in the record. Contrary to
Zheng’s arguments, substantial evidence supports the adverse credibility determination.
Even assuming Zheng’s credibility, the record does not compel the conclusion that he
could not reasonably obtain certain corroborating evidence. See 8 U.S.C. §§ 1229a(c)(4)(B),
1252(b)(4). According to Zheng, the BIA’s determination that his mother’s letter had little
probative value because she is an interested party unavailable for cross examination is
inconsistent with its statement that he should have submitted his mother’s medical records.
Zheng ignores the fact that any medical records would have been prepared by a disinterested
party and not his mother. Zheng also challenges the BIA’s observation that there was no
evidence establishing that the Chinese government punishes its citizens for practicing Falun
Gong outside of China.

He asserts that it is unreasonable to assume that he can provide

corroboration when the State Department’s country report is silent on this point.

Zheng

disregards his burden of proof. Zheng, not the government, must demonstrate a well-founded
fear of persecution on account of his practice of Falun Gong while in the United States. See 8
U.S.C. § 1158(b)(1)(B)(i). The country report’s silence suggests that Zheng’s claimed fear is

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unfounded, not that he is exempt from meeting his burden. Zheng asserts that the BIA failed to
consider the 2007 State Department profile of China, which states that “persons who participate
in high-profile pro-democracy activities in the United States still run the risk of arrest and
imprisonment should they return to China.” (A.R. 212). Zheng does not claim to have engaged
in pro-democracy activities in the United States; therefore, this information is irrelevant to his
claim. Finally, Zheng contends that because the Chinese government is known to open and read
international mail, he could not reasonably obtain letters from “aunt,” the woman for whom he
helped distribute Falun Gong flyers after she treated his mother’s illness, and from Wei Ling, a
friend who hid him from the police. Zheng, however, was able to obtain statements from other
persons in China.

See Zhitian Zhang v. Holder, 542 F. App’x 458, 461 (6th Cir. 2013).

Therefore, Zheng has failed to demonstrate that he could not “reasonably obtain the evidence.” 8
U.S.C. § 1229a(c)(4)(B).
The record does not compel a contrary conclusion regarding Zheng’s failure to provide
credible testimony or sufficient corroboration. Accordingly, we DENY Zheng’s petition for
review.

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