Zhuang v. Gonzales

• Decision Date: 22 December 2006
• Docket Number: No. 05-4131.,05-4131.
• Citation: 471 F.3d 884
• Parties: Hui ZHUANG, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

471 F.3d 884 Hui ZHUANG, Petitioner,
v.
Alberto GONZALES, Attorney General of the United States of America, Respondent. No. 05-4131. United States Court of Appeals, Eighth Circuit. Submitted: September 29, 2006. Filed: December 22, 2006.

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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, the IJ denied Zhuang's requests for asylum, withholding of removal, and relief under CAT, finding that Zhuang lacked credibility and that he failed to prove that his ex-wife had been forcibly sterilized. Likewise, the IJ concluded that Zhuang had failed to prove fear of future prosecution and the likelihood of torture by the government if he was returned to China. The IJ also found that the country conditions in rural areas of China, such as Zhuang's home province, had changed, making it lawful for couples to have a second child if the first child was a girl. The BIA affirmed without comment. Zhuang filed a motion to reconsider, which was denied, and petitioned this court for review.

II. Discussion

On appeal, Zhuang first argues that the IJ and the BIA erred in denying his asylum claim, request for withholding of removal, and relief under CAT. Zhuang's second argument is that his Fifth Amendment rights to due process regarding a full and fair hearing were violated because the interpreter assigned to the final hearing was ineffective.

A. Due Process Claim

As an initial matter, we lack jurisdiction to address Zhuang's due process claim, and we therefore dismiss that claim. See Alyas v. Gonzales, 419 F.3d 756, 761 (8th Cir.2005). (holding that the court lacked jurisdiction to hear inadequate interpreter due process claim where petitioner argued to BIA that interpreter was inadequate, but failed to present due process argument). Zhuang asserts a due process deprivation based upon allegedly ineffective assistance from the interpreter provided for him at his final hearing before the IJ. However, Zhuang failed to present this argument to the BIA and jurisdiction before this court is thus lacking. Id. Although Zhuang noted in his Notice of Appeal that "the interpreter was not competent," he made no mention of a due process claim.

B. Standard of Review

Turning to Zhuang's other claims for relief, we review questions of law de novo and review an IJ's fact determinations by applying the substantial evidence test. Turay v. Ashcroft, 405 F.3d 663, 666 (8th Cir.2005). Under the substantial evidence test, "we must affirm if the IJ's decision is supported by reasonable, substantial, and probative evidence." Id. at 666-67 (citations omitted). We will only reverse factual determinations "if the petitioner demonstrates that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner." Id. at 667 (citations omitted).

The BIA's decision to affirm the IJ without opinion "is committed to agency discretion and not subject to judicial review." Ngure...