Meng Zhao v. Attorney General , 482 F. App'x 740 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4128
___________
MENG ZHAO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-805-239)
Immigration Judge: Alberto Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 23, 2012
Before: FISHER, WEIS and BARRY, Circuit Judges
(Opinion filed: May 24, 2012)
___________
OPINION
___________
PER CURIAM.
Meng Zhao, a citizen of China, seeks review of a Board of Immigration Appeals
(“BIA”) decision that upheld the Immigration Judge’s (“IJ”) denial of asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). For
the reasons that follow, we will deny the petition for review.
I.
Zhao entered the United States in March 2008 as a nonimmigrant B-1 visitor. He
overstayed and was charged as removable under 8 U.S.C. § 1227(a)(1)(B). Zhao
conceded removability but, in an effort to block removal, claimed that he suffered and
would continue to suffer persecution and torture in China on account of his anti-
government-corruption political opinion.
At an August 2010 hearing before the IJ, Zhao testified that he was formerly
employed as a business manager in the purchasing department of the “Ocean Shangh[a]i
Building Linhing Corporation.” A.R. at 98. “Originally it was [a] government
enterprise,” A.R. at 98, but it privatized in August 2004. During the period in which
Ocean Shanghai was government-run, Zhao became aware of corruption at the highest
levels of the company: the general manager and two associate general managers used
company funds to purchase luxury cars and houses, and to “sen[d] their children abroad.”
A.R. at 99. The embezzlement had a negative impact on Zhao’s salary insofar as he “did
not get paid on time . . . start[ing] I think in the beginning of year 2003.” A.R. at 101.
The situation worsened when the company privatized in August 2004 because the
new owners were the three embezzling managers. Layoffs occurred and those employees
who remained with the company saw their health insurance, pensions, and other benefits
stripped. When, on August 10, 2004, Zhao refused to sign a form consenting to the
changes in employment, he was removed from the company building by security guards.
The next day, Zhao filed a petition with the city government complaining about the
2
aforementioned corruption. The investigation conducted by the city was fruitless, and
Zhao resigned himself to work for the company without benefits.
Inspired by tales of American civic activism, Zhao and his friends eventually
“organized a small group [they] called Democratic Anti Corruption Group.” A.R. at 109.
The group met in private because “in China you don’t have freedom of speech.” A.R. at
110. The group intended to organize a large scale protest of China’s corrupt business
culture. Planning stalled when twelve members of the group—including Zhao—were
arrested during a meeting on October 25, 2007.
The arrestees were taken “to Fujin City public security bureau detention facility,”
A.R. at 113, where they were interrogated and accused of practicing Falun Gong.
Dissatisfied with Zhao’s interrogation responses, the police “beat [him] up” 1 and held
him in custody for “five days.” A.R. at 116, 117. Zhao was fined 100 yuan for the cost
of food provided to him each day of the detention. He was released only because he
signed an “admission of wrong doing” and “promised in the future [he would] not attend
any form of gathering.” A.R. at 117. Zhao went immediately to a hospital for treatment
of his injuries. Later, Zhao was fired from his job because of the arrest. Zhao’s
misfortune did not end there: “afterwards the local resident committee people and police
officer from time to time . . . came to [my] home, arrest me. Plus I was required from
time to time to report to the police office.” A.R. at 119.
1
The IJ was disinclined to hear specific details about the beating, stating: “I’m not the
kind of judge that enjoys physical mistreatment, okay.” A.R. at 120.
3
At the end of the hearing, the IJ observed that Zhao’s “testimony was obviously a
mirror image of what he submitted [in the asylum application].” A.R. at 151. The IJ
found Zhao’s testimony to be credible but denied his applications for immigration relief.
The IJ found the testimony to be insufficiently corroborated, and specifically faulted
Zhao for failing to produce “his petition to the mayor” or “his confession letter or proof
of the assessed fines for food during detention.” A.R. at 70.
In addition, the IJ determined that Zhao did not demonstrate past persecution for
three reasons: (1) Zhao “failed to provide evidence of the nexus between his arrest and
his political opinion to prove the government knew about his democratic activities,” A.R.
at 72; (2) Zhao “did not demonstrate [sufficient] severity of his arrest and detention,”
A.R. at 72; and (3) “even when considering [Zhao’s] short detention in conjunction with
his economic hardship, the Court finds that [Zhao’s] claim still does not rise to the level
of past persecution.” A.R. at 73. The IJ also determined that Zhao did not demonstrate
future persecution because the Chinese government appeared to be unaware of his
political agenda. The IJ gave weight to the fact that Zhao’s parents remained in China
and had “not been arrested or beaten.” A.R. at 74. Finally, the IJ determined that Zhao
failed to meet the standard for CAT protection.
The BIA dismissed Zhao’s appeal, concluding as follows: (1) Zhao’s beating in
detention was not sufficiently severe; (2) Zhao’s alleged persecution was not on account
of his anti-corruption political opinion; (3) since Zhao did not satisfy the burden for
asylum, he did not satisfy the heavier burden for statutory withholding of removal; and
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(4) Zhao failed to raise and therefore waived his CAT claim. This petition for review
followed.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). When the BIA issues its own
written decision, that decision in general circumscribes the scope of our review.
However, we look to an IJ’s findings of fact or rulings on particular claims when the BIA
expressly defers to them. See Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).
“We review the facts upon which the BIA’s decision rests to ensure that they are
supported by substantial evidence from the record considered as a whole, and we will
reverse based on a factual error only if any reasonable fact-finder would be ‘compelled to
conclude otherwise.’” Id. (internal citations omitted). The BIA’s legal conclusions are
reviewed de novo. Id.III.
We conclude that substantial evidence supports the IJ’s finding, deferred to by the
BIA, that Zhao’s political opinion is not “one central reason” for any past or prospective
harm. That conclusion alone requires that we deny Zhao’s petition for review. 2
2
We note that although the IJ arguably erred in his corroboration analysis by failing to
conduct the three-step inquiry that we set forth in Abdulai v. Ashcroft, 239 F.3d 542 (3d
Cir. 2001), and that was eventually codified at 8 U.S.C. § 1158(b)(1)(B)(ii), the BIA did
not adopt the IJ’s corroboration analysis in reaching its decision. Cf. Garcia v. Att’y
Gen., 665 F.3d 496, 502 (3d Cir. 2011) (“[T]he BIA agreed with several of the IJ’s
findings but did not adopt all of them. Accordingly, we may affirm the BIA’s decision
only if we find that its stated reasons are correct, as it was the BIA—not the IJ—that
5
To be classified as a refugee and thus acquire eligibility for asylum relief, an
aspiring immigrant must demonstrate that he is unable or unwilling to return to his
country of origin due to persecution or a well-founded fear of persecution on account of
one of the bases enumerated in the Immigration and Nationality Act. See 8 U.S.C.
§ 1101(a)(42). Because Zhao filed his asylum application after May 11, 2005, the
application is governed by the changes to the relevant law brought about by the REAL ID
Act. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008). “Under the REAL ID
Act standard, an applicant must establish more than that the persecutor is motivated ‘in
part’ by a protected ground.” Li v. Att’y Gen., 633 F.3d 136, 142 n.4 (3d Cir. 2011); see
also 8 U.S.C. § 1158(b)(1)(B)(i) (“The burden of proof is on the applicant to establish
that . . . race, religion, nationality, membership in a particular social group, or political
opinion was or will be at least one central reason for persecuting the applicant.”).
As we explained in Ndayshimiye v. Attorney General, 557 F.3d 124 (3d Cir.
2009), the term “central,” as used in § 1158(b)(1)(B)(i), means “of primary importance,
essential, or principal.” Id. at 130. We determined that it was reasonable for the BIA to
conclude “that Congress, in including the term ‘central,’ meant to preclude asylum where
a protected ground played only an incidental, tangential, or superficial role in
persecution.” Id.
Here, the record reflects that Zhao was arrested and detained as a suspected Falun
provided the final and authoritative ‘grounds invoked by the agency.’” (citation
omitted)).
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Gong practitioner, not as an anti-government-corruption activist. 3 Even though Zhao was
arrested during a meeting of his so-called Democratic Anti Corruption Group, the
meeting’s subject matter appears to have been unrelated to the police officers’
motivations with respect to Zhao’s arrest, detention, and physical mistreatment. Indeed,
the affidavit from Zhao’s co-arrestee indicates that the police were unaware of the
group’s political ideology. Thus, substantial evidence supports the BIA’s finding that
Zhao’s political opinion was not one central reason for his alleged mistreatment; Zhao
fails to demonstrate that a reasonable adjudicator would be compelled to come to the
opposite conclusion. Accordingly, the petition for review will be denied.
3
Zhao argues that “[t]he Immigration Judge’s suggestion that the police did not
persecute Mr. Zhao for his political beliefs because they questioned him about Falun
Gong is illogical because harm subjected based on his imputed support for that group
would also constitute persecution on account of a protected ground.” Pet’r Br. at 16. We
agree with Zhao that a claim for asylum can be rooted in persecution on account of an
imputed religious belief. See, e.g., Rizal v. Gonzales, 442 F.3d 84, 90 n.7 (2d Cir. 2006)
Mezvrishvili v. Att’y Gen., 467 F.3d 1292, 1296 (11th Cir. 2006). But Zhao made no
effort to exhaust a claim of that nature at the agency level. See Lin v. Att’y Gen., 543
F.3d 114, 122 (3d Cir. 2008) (“Out of respect for the administrative process, we will not
require the BIA to guess which issues have been presented and which have not.”). Nor
did the BIA sua sponte consider a claim of persecution based on an imputed religious
belief. Cf. id. at 126
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