Zhang v. Gonzales

• Decision Date: 01 December 2005
• Docket Number: No. 04-60375.,04-60375.
• Citation: 432 F.3d 339
• Parties: Yi Wu ZHANG, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.3d 339

Yi Wu ZHANG, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 04-60375.

United States Court of Appeals, Fifth Circuit.

December 1, 2005.

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Yu-Ju Chang, Law Office of Yu-Ju Chang, Dallas, TX, for Petitioner.

Douglas Ginsburg, U.S. Dept. of Justice, Civ. Div. Immigration Litigation, Thomas Ward Hussey, Director, Michael Peter Lindemann, U.S. Dept. of Justice, Office of Immigration Litigation, Alberto R. Gonzales, U.S. Dept. of Justice, Washington, DC, Anne M. Estrada, U.S. I.N.S., Dallas, TX, Caryl G. Thompson, U.S. I.N.S., Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of a Final Order of Removal Entered by the Board of Immigration Appeals.

Before REAVLEY, HIGGINBOTHAM and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Yi Wu Zhang petitions for review of an order of the Board of Immigration Appeals denying his application for asylum, withholding of removal, and protection under the Convention Against Torture.

I

Petitioner Yi Wu Zhang ("Zhang"), a citizen of the People's Republic of China, entered the United States without inspection. The former Immigration and Naturalization Service ("INS") issued a Notice to Appear ("NTA") to Zhang, charging him with deportability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. At a hearing before an immigration judge ("IJ"), Zhang conceded that he was removable as charged but requested asylum, withholding of removal, and protection under the Convention Against Torture¹ based upon his status as a practitioner of Falun Gong, "a movement that professes to help its practitioners gain self-understanding through spiritual and physical development." Zhao v. Gonzales, 404 F.3d 295, 300 (5th Cir.2005).

On February 4, 2003, the IJ conducted a hearing at which Zhang testified and was given the opportunity to submit evidence in support of his claims. He asserted that, after being introduced to Falun Gong in March 2001, he periodically met with others to read books, study, and "practic[e] different things" related to Falun Gong. In October 2001, Chinese police allegedly arrived at his home with an arrest warrant and took him to the police station where they handcuffed Zhang to a window for three hours, beat him, and forced him to promise that he would no longer practice Falun Gong. After twenty days in prison, the police released him. In January 2002, Zhang left China and settled in Dallas, Texas, where he purportedly resides with other practitioners of Falun Gong. At his hearing, Zhang produced an unverified copy of a Chinese arrest warrant that he asserts is from his October 2001 arrest. Zhang also testified that he feared returning to China because he would be arrested and persecuted.

After considering the evidence, the IJ denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, stating that "the Court just, quite frankly, doesn't believe this story and believes it's probably cooked up or, at the very least, exaggerated." The IJ did not credit Zhang's claims that he was a practitioner of Falun Gong, that he was persecuted, or that he feared persecution if forced to return to China. Specifically, the IJ doubted Zhang's claim that he practiced in a front yard in China because such a practice would be easily discoverable by Chinese authorities who were purportedly attempting to suppress Falun Gong activity. The IJ also noted that Zhang's testimony was simplistic, virtually identical to his written statement, and without the additional persuasive weight of separate detail. Given these credibility concerns, the IJ was "struck by [Zhang's] failure to be able to produce either his friends or at least some sworn statement by them in writing to corroborate his testimony" that Zhang was a practitioner of Falun Gong and a victim of persecution.²

II

Zhang challenges the IJ's factual finding that his testimony was not credible, noting that he testified in Mandarin Chinese and that the translation may not have been precise. He argues that, if his account of Falun Gong and his persecution was simplistic, it is only because "the truth is `simple.'" Zhang argues the merits of his case as well, stating that there is a probability of persecution and torture if returned home "[b]ecause so many other Falun Gong practitioners [have been] arrested and tortured" and because he will be punished for leaving the country unlawfully and for not reporting to the police after his arrest.

Because the Board of Immigration Affairs ("BIA") affirmed without opinion, the IJ's decision became the final agency determination for purposes of this appeal. Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir.2003). The agency's "findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary...." 8 U.S.C. § 1252(b)(4)(B). This standard essentially codifies the substantial evidence test established by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004); Dia v. Ashcroft, 353 F.3d 228, 247-49 (3d Cir.2003). "We use the substantial evidence standard to review the IJ's factual conclusion that an alien is not eligible for asylum," Zhao, 404 F.3d at 306, withholding of removal, Zamora-Morel v. INS, 905 F.2d 833, 838 (5th Cir.1990), and relief under the Convention Against Torture, Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 353 (5th Cir.2002). Under this standard, reversal is improper unless we decide "not only that the evidence supports a contrary conclusion, but [also] that the evidence compels it." Zhao, 404 F.3d at 306 (quoting Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994)). "[I]t is the factfinder's duty to make determinations based on the credibility of the witnesses." Id. (citing Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir.1977)); see Mantell v. INS, 798 F.2d 124, 127 (5th Cir.1986) ("We will not review decisions turning purely on the immigration judge's assessment of the alien petitioner's credibility."). Still, an adverse credibility determination must be supported by specific and cogent reasons derived from the record. Sylla v. INS, 388 F.3d 924, 926 (6th Cir.2004); Dailide v. United States Attorney Gen., 387 F.3d 1335, 1341 (11th Cir.2004); Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir.2004); Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004); Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir.2004); Qin v. Ashcroft, 360 F.3d 302, 306 (1st Cir.2004); Dia, 353 F.3d at 249; Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 658 (9th Cir.2003).

Zhang seeks asylum, withholding of removal, and protection under the Convention Against Torture. Asylum is discretionary and may be granted to "an alien who is unable or unwilling to return to his home country `because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812 (quoting 8 U.S.C. § 1101(a)(42)(A)). "To establish a well-founded fear of future persecution, an alien must demonstrate a subjective fear of persecution, and that fear must be objectively reasonable." Zhao, 404 F.3d at 307 (citation omitted) (internal quotation marks omitted); see also Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.2001) (similar). Unlike asylum, withholding of removal does not require a showing that the petitioner has a subjective fear of persecution. Guevara Flores v. INS, 786 F.2d 1242, 1250 (5th Cir.1986). To be eligible, the alien need only demonstrate a "clear probability" of persecution if returned to his home country. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.1994) (citing Rivera-Cruz v. INS, 948 F.2d 962, 966 (5th Cir.1991)); see 8 C.F.R. § 208.16(b) (noting that an alien must show that "his life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion"). Claims based on the Convention Against Torture differ from claims of asylum and withholding of removal because alleged mistreatment need not involve "one of the five categories of race, religion, nationality, membership in a particular social group or political opinion" and because proof of torture, not simply persecution, is required. Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir.2002). To obtain relief, an applicant must show that it is "more likely than not" that he would be tortured if returned to his home country. Ontunez-Tursios, 303 F.3d at 354 (citing 8 C.F.R. § 208.16(c)(2)).

The IJ's denial of Zhang's application for asylum and withholding of removal is supported by substantial evidence; there is no evidence that compels us to find that Zhang was a practitioner of Falun Gong or that he suffered persecution. Based on the petitioner's own testimony, the IJ could reasonably conclude that Zhang had purportedly practiced Falun Gong for a few months, had little detailed understanding of its practices, and fled after one incident with the police. With doubts regarding his past practice of Falun Gong, the IJ properly noted the absence of any evidence, beyond the unverified subpoena and arrest warrant, supporting Zhang's claim.³ Specifically, Zhang failed to produce statements or witness testimony affirming that he was a practitioner of Falun Gong or corroborating his claim of arrest and maltreatment. The IJ provided specific, cogent reasons for his adverse credibility determination that we are unwilling to reevaluate on a cold record. See Efe, 293 F.3d at 905 ("The panel cannot replace the Board or IJ's determinations concerning witness credibility...."). Without a credible showing that he is a practitioner of Falun Gong, Zhang cannot meet his burden of proving past...