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Zheng v. Gonzales

July 20, 2005

QUN ZHENG, PETITIONER
v.
ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA



On Petition for Review of an Order of the Board of Immigration Appeals (Board No. A78-864-293).

The opinion of the court was delivered by: Becker, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) June 30, 2005

Before: RENDELL, BARRY and BECKER, Circuit Judges

OPINION OF THE COURT

This is a petition for review by Qun Zheng, a native and citizen of China, of a decision by the Board of Immigration Appeals (BIA) affirming, without opinion, a decision by an Immigration Judge (IJ) denying Zheng's requests for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because we find that the IJ's decision was based on substantial evidence, we will deny the petition for review.

I.

Qun Zheng, also known as Zhao Xin Zhu, was born in China in 1989. He claims that his mother was forcibly sterilized shortly after giving birth to him, because he was her third child and she had thus violated China's family planning policy. His father left China in 1992, and his mother in 1997, leaving Zheng with his grandparents. Both of Zheng's parents came to the United States and petitioned for asylum. Their petitions were denied, although it appears that they both remain in the United States. See Xiu Jin Wang v. BIA, 87 Fed. Appx. 209 (2d Cir. 2004) (unpublished summary order).

Zheng claims that, in April 2002, he wrote an essay called "My Mother" for a school assignment. Zheng's essay was allegedly highly critical of the Chinese government, and of his mother's forcible sterilization. According to Zheng, in reaction to this essay, the principal of his school demanded that Zheng write a "self-criticism" renouncing it. If he failed to do so, he claims, he would be sent to a juvenile re-education camp.

Zheng relates that the principal sent him home to write his self-criticism, and that, after discussing the issue with his grandparents, he decided to go into hiding at his uncle's house. He did so some five to eight days later, never having returned to school. At some point after this, his grandmother came to visit Zheng in hiding. She allegedly told him that the principal of the school had called her and told her that if Zheng was found he would be sent to the juvenile re-education department. She therefore contacted smugglers to get Zheng to the United States to be reunited with his parents. After about a week at his uncle's, Zheng left with a smuggler, who obtained false documents for him. After staying in a hotel with the smuggler for some time, he left for America, and arrived in Chicago on June 10, 2002.

Zheng was stopped at the airport and taken into custody. Zheng was released from custody in August 2002, and went to live with his mother in New Jersey. In November 2002, an IJ granted a change of venue to Newark. Before the IJ, Zheng conceded removability and applied for asylum, withholding of removal, and protection under the CAT. An asylum hearing was held on April 2, 2003, in Newark. Zheng presented his own testimony and some documentary evidence, including a rewritten copy of his "My Mother" essay (he did not have a copy of the original) and letters from two school friends corroborating some aspects of his story.

At the close of the hearing, the IJ rendered an oral decision. He found that, if true, Zheng's allegations would make out a claim for asylum, in that he alleged a fear of persecution based on "other resistance" to China's family planning policy. See 8 U.S.C. § 1101(a)(42). But the IJ determined that Zheng had not met his burden of establishing persecution because his testimony was not credible. He therefore denied asylum, withholding of removal, and CAT protection based on past persecution. He also denied CAT relief based on Zheng's alleged fear that, if he returned to China, he would be tortured for leaving China illegally.

The BIA affirmed without opinion, leaving the IJ's opinion as the final agency determination. We have jurisdiction over Zheng's timely petition for ...


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