Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 09-3950
___________
YI MING 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. A099-074-185)
Immigration Judge: Honorable Susan Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 7, 2010
Before: BARRY, GREENAWAY and STAPLETON, Circuit Judges
(Opinion filed: July 12, 2010 )
___________
OPINION
___________
PER CURIAM
Yi Ming Zheng (Zheng) petitions for review of a Board of Immigration Appeals
(BIA) decision upholding the Immigration Judges (IJ) order of removal. For the
reasons that follow, we will deny the petition for review.
I
Zheng, a citizen of China, entered the United States without inspection in 2005.
He was placed in removal proceedings and filed a request for asylum, withholding of
removal, and protection under the Convention Against Torture based on his wifes forced
sterilization.
In support of his application for relief, Zheng testified that his wife gave birth to a
second child in 1992 and, while he was out to sea, she was forcibly sterilized. He also
testified that, in 2001, his sister Lan Mei Zheng and her husband went into hiding at his
home because she was pregnant with her second child, in violation of Chinas family
planning policies. Zheng testified that he and his wife were present when family planning
cadres came to take Lan Mei. He testified that he intervened and was arrested, detained
for five days, and beaten with sticks. Zheng stated that the cadres made him promise to
never speak of the beating and to not interfere with family planning officials again.
Zheng testified that he sought medical treatment for the beating after his release.
Notably, Zheng omitted any discussion of his intervention on his sisters behalf and
subsequent arrest and abuse until his third asylum application. The IJ denied relief.
Zheng appealed, and the BIA upheld the IJs decision based on Zhengs lack of
credibility and failure to corroborate. Zheng then filed a petition for review.
II
We have jurisdiction pursuant to 8 U.S.C. 1252(a). Because the BIA issued its
own opinion, we review its decision rather than that of the IJ. See Li v. Atty Gen., 400
F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of the IJ to the
extent that the BIA deferred to or adopted the IJs reasoning. See Chavarria v. Gonzalez,
446 F.3d 508, 515 (3d Cir. 2006). We review the Agencys factual determinations,
including adverse credibility determinations, for substantial evidence, and will uphold
such determinations unless any reasonable adjudicator would be compelled to reach a
contrary conclusion. See Fiadjoe v. Atty Gen., 411 F.3d 135, 153 (3d Cir. 2005). We
review their legal conclusions de novo, subject to established principles of deference.
See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004).
In denying relief, the IJ reasoned that Zheng was not credible and that he failed to
corroborate his claims. Because Zhengs asylum application was filed in June 2005, his
petition is governed by the REAL ID Act of 2005. Prior to the implementation of the
REAL ID Act, minor inconsistencies that did not go to the heart of an asylum applicants
claim were insufficient to support adverse credibility determinations. See Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). In contrast, the REAL ID Act permits
credibility determinations based on, inter alia, inconsistencies that do not go to the heart
of the aliens claim. See 8 U.S.C. 1158(b)(1)(B)(iii). We have not applied the REAL
ID Act standard in a precedential opinion. Here, because the inconsistencies identified by
the IJ relate to the heart of Zhengs claims for relief, and would thus support an adverse
credibility determination even under the pre-REAL ID Act standard, we need not consider
whether 8 U.S.C. 1158(b)(1)(B)(iii) is consistent with due process. See Wang v.

Holder, 569 F.3d 531, 538 (5th Cir. 2009) (canvassing Circuit law on the provision).
In finding Zheng incredible, the IJ relied on several discrepancies and
inconsistencies in the record. First, the IJ found implausible Zhengs explanations for
omitting his other resistance claim from his first two asylum applications: that his
wifes harm was more severe, and that because the officials who beat him told him not to
say anything, he was afraid to tell American officials about his sister or his arrest even
though he did not have a problem telling American officials about his wifes
sterilization.1
In addition, the IJ identified a significant discrepancy between Zhengs earlier
asylum application and his final application: in the earlier application, he stated that he
had gotten word that his sister, Lan Mei, was sterilized in 2001, while he was making
preparations to leave the country; later, he alleged that he had been present and tried to
intervene, and was beaten by authorities as a result. The IJ also noted that his earlier
applications contained no indication that Lan Mei and her husband had gone into hiding
with Zheng. Finally, the IJ held that Zhengs demeanor during the removal hearing
detracted from his credibility, as he repeatedly hesitated before answering yes-or-no
The IJ noted that Zheng sought venue in New Jersey and raised the claim based on
his resistance to his sisters forced sterilization only after the Second Circuit ruled in Lin
v. United States Dept of Justice, 494 F.3d 296 (2d Cir. 2007), that the spouses of
individuals who were sterilized or forced to undergo abortions were not per se refugees
under the INA.
4
questions, suggesting that he was trying to provide answers the IJ wanted. Given that
these inconsistencies and discrepancies were substantial, and that Zheng was unable to
satisfactorily explain them, we are not compelled to disagree with the Agencys adverse
credibility determination.2
Further, the IJ reasoned that Zheng failed to adequately corroborate his claim.
A denial of relief may be grounded on a failure to corroborate when (1) the IJ identifies
facts for which it is reasonable to expect the applicant to produce corroboration, (2) the
applicant fails to corroborate, and (3) the applicant fails to adequately explain that
failure. Chukwu v. Atty Gen., 484 F.3d 185, 191-92 (3d Cir. 2007) (citing Abdulai v.
Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)). Here, the IJ faulted Zheng for failing to
obtain: (1) medical documentation that he was treated for the beating, and (2) an
amended statement from his wife regarding the incident with Zhengs sister, even though
the wife was allegedly present.
As to the medical evidence, Zheng argues that the IJ erred by failing to consider
his explanation that he did not think such evidence would be available because he went to
a traditional doctor. However, the IJ clearly considered Zhengs explanation, as well as
The IJ also based the adverse credibility determination on a finding that Zheng
admitted lying when providing an address in Phoenix, Arizona where he once sought
venue which turned out to be the address of a shopping center. The BIA ruled that the
IJ clearly erred in that respect, as Zheng admitted only that the address was incorrect. We
agree with the Board that, notwithstanding the IJs error, the adverse credibility
determination was supported by substantial evidence.
5
his admission that he did not even try to obtain any such documentation. Given that
Zheng made no effort to get corroborating documents, despite the opportunity to do so,
we are not compelled to disagree with the IJs determination that his explanation was
inadequate.
The IJ also took issue with Zhengs failure to obtain an amended statement from
his wife about the incident with his sister. Instead, Zheng submitted statements from his
mother and sister, Lan Mei, describing the incident. However, the IJ discounted those
letters because they contained unexplained alterations and mistranslations. Aside from
Zhengs undetailed argument that those alterations and mistranslations were insignificant,
he has not shown that the IJ erred in her determination.
Finally, Zheng argues that he was denied due process because the IJ demonstrated
bias against him. Specifically, he argues that the IJ evinced bias by (1) calling his
credibility into question when he repeatedly failed to give direct answers to yes-or-no
questions, and (2) nitpicking his supporting documentation, which contained
mistranslations and unexplained alterations. We disagree. As to the first issue, the IJ
appropriately considered Zhengs demeanor in assessing his credibility. See Chen v.
Gonzales, 434 F.3d 212, 220 (3d Cir. 2005) ([A] witnesss tone and demeanor are
important factors in determining credibility . . . .). Although Zheng argues that any
reasonable person would conclude . . . that [he] was answering yes using a non-lexical
sound, Petr Br. at 14, we are not compelled to disagree with the IJs analysis, to which
we afford a great degree of deference. See Dia v. Ashcroft, 353 F.3d 228, 252 n.23 (3d
Cir. 2003). Likewise, the IJ did not deprive Zheng of a full and fair hearing merely by
calling into question the value of his documentary evidence, when that evidence
contained unexplained alterations and mistranslations, however minor those
imperfections may have been.
Accordingly, we will deny the petition for review.

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UNITED STATES COURT OF APPEALS

whether 8 U.S.C. 1158(b)(1)(B)(iii) is consistent with due process. See Wang v.

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