471 F.3d 884 (8th Cir. 2006), 05-4131, Zhuang v. Gonzales

Docket Nº:05-4131.
Citation:471 F.3d 884
Party Name:Hui ZHUANG, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.
Case Date:December 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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471 F.3d 884 (8th Cir. 2006)

Hui ZHUANG, Petitioner,


Alberto GONZALES, Attorney General of the United States of America, Respondent.

No. 05-4131.

United States Court of Appeals, Eighth Circuit.

December 22, 2006

Submitted: September 29, 2006

Petition for Review of a Final Decision of the Board of Immigration Appeals.

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[Copyrighted Material Omitted]

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Elizabeth A. Holmes, Marc Prokosch, Karam & Associates, argued, Bloomington, MN, for Petitioner.

Joan Decoursin Humes, U.S. Attorney's Office, Minneapolis, MN, Scott Baniecke, U.S. Immigration & Naturalization Service, Bloomington, MN, Richard M. Evans,

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Thomas W. Hussey, Patricia A. Smith, Karen Drummond, U.S. Department of Justice, Office of Immigration Litigation, P. Michael Truman, U.S. Department of Justice Civil Division, OIL, Washington, DC, Lori Scialabba, U.S. Department of Justice, Executive Office for Immigration Review, Falls Church, VA, argued, for Respondent.

Before LOKEN, Chief Judge, SMITH, and GRUENDER, Circuit Judges.

SMITH, Circuit Judge.

Hui Zhuang, a citizen of China, petitions for review of a final order of removal by the Board of Immigration Appeals (BIA). The BIA summarily affirmed the decision of the Immigration Judge (IJ) denying Zhuang's applications for asylum, withholding of removal and relief under the Convention Against Torture (CAT). For the reasons discussed below, we deny Zhuang's petition.

I. Background

Hui Zhuang, a native and citizen of China, entered the United States without inspection in 1990. In 1992, Zhuang filed an application for asylum, claiming that because he violated China's one-child policy, he "got [sic] a lot of troubles and was fined a lot of money" and believed that he had "no freedom in human rights in China." The Immigration and Naturalization Service (INS) commenced removal proceedings against Zhuang in 1999. Zhuang conceded removability but renewed his request for asylum and also requested relief through withholding of deportation and protection under CAT. In Zhuang's renewed request for relief, he claimed past persecution and a fear of future persecution because he and his wife had violated China's one-child policy and his wife had been forcibly sterilized following the birth of their second child.

Zhuang married Bi Ying Zhang in China in 1984. In 1985, the couple had their first child, a daughter. In November 1986, they had a second child, a son. In December 1986, Zhuang's wife underwent a sterilization procedure. Zhuang alleges that the Chinese government forced his wife to undergo this procedure.1 Zhuang came to the United States in January 1990, but his wife and children remained in China. In November 1996, Zhuang and his wife were divorced in China. In December 1996, Zhuang's ex-wife married a naturalized American citizen from China. As a result, Zhuang's ex-wife was issued an immigrant visa, and she and the children came to the United States in 1998. Zhuang's ex-wife's second marriage ended in divorce in 2002. She then applied for naturalization in 2004. In her application for naturalization, Zhuang's ex-wife indicated that she had returned to China for a visit in 2002, staying 37 days before returning to the United States.2 The ex-wife and children are now United States citizens.

The final hearing on Zhuang's claims for relief was originally set for August 9, 2001, but due to several continuances, Zhuang's final merits hearing was not held until September 16, 2004. At the time of the final hearing, Zhuang and his ex-wife were working at the same restaurant, living in the same apartment building, and occasionally living in the same apartment. Because Zhuang's claims for relief were based on the forced sterilization of his ex-wife, the IJ had informed Zhuang at a previous hearing that his ex-wife's testimony

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would be extremely helpful on that issue. However, at the final hearing, Zhuang was the only witness to testify. Zhuang's ex-wife did not appear or testify nor did Zhuang provide an affidavit from her. Although Zhuang submitted documentary evidence that his ex-wife had been sterilized, the document did not reflect that the procedure was done involuntarily. The other documents provided by Zhuang were not properly certified as required by 8 C.F.R. 287.6, despite a prior warning from the IJ to Zhuang and his attorney about the certification requirements. As a result, the IJ gave the uncertified documents little or no weight.

At the conclusion of the hearing...

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