# Cai Zheng v. Eric Holder, Jr.

> Court of Appeals for the Fourth Circuit · February 13, 2013 · 509 F. App'x 269

URL: https://www.frixlaw.com/law-library/cases/820424

## Case

- **Full name:** CAI YAN ZHENG; Hang Lin, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** February 13, 2013
- **Citations:** 509 F. App'x 269
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Motz, Diaz, Floyd
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1801

CAI YAN ZHENG; HANG LIN,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: January 15, 2013 Decided: February 13, 2013

Before MOTZ, DIAZ, and FLOYD, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Gregory Marotta, LAW OFFICE OF RICHARD TARZIA, Belle Mead, New
Jersey, for Petitioners. Stuart F. Delery, Acting Assistant
Attorney General, Blair O’Connor, Assistant Director, Rachel
Browning, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Cai Yan Zheng and Hang Lin, natives and citizens of

the People’s Republic of China, petition for review of the Board

of Immigration Appeals’ (“Board”) order dismissing their appeal

from the immigration judge’s order denying their applications

for asylum and withholding of removal. We deny the petition for

review.

The Immigration and Nationality Act (“INA”) authorizes

the Attorney General to confer asylum on any refugee. 8 U.S.C.

§ 1158(a) (2006). The INA defines a refugee as a person

unwilling or unable to return to her native 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.” 8 U.S.C. § 1101(a)(42)(A) (2006).

“Persecution involves the infliction or threat of death,

torture, or injury to one’s person or freedom, on account of one

of the enumerated grounds . . . .” Qiao Hua Li v. Gonzales, 405

F.3d 171, 177 (4th Cir. 2005) (internal quotation marks and

citations omitted). An individual who has been forced to submit

to an abortion or sterilization procedure is “deemed to have

been persecuted on account of political opinion, and a person

who has a well founded fear that he or she will be forced to

undergo such a procedure or subject to persecution for such

failure, refusal, or resistance shall be deemed to have a well

2
founded fear of persecution on account of political opinion.” 8

U.S.C. § 1101(a)(42) (2006).

An alien “bear[s] the burden of proving eligibility

for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.

2006); see 8 C.F.R. § 1208.13(a) (2012), and can establish

refugee status based on past persecution in her native country

on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)

(2012). * Without regard to past persecution, an alien can also

establish refugee status by showing a well-founded fear of

future persecution based on a protected ground. Ngarurih v.

Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004). The well-founded

fear standard contains both a subjective and an objective

component. The objective element requires a showing of

specific, concrete facts that would lead a reasonable person in

like circumstances to fear persecution. Gandziami-Mickhou v.

Gonzales, 445 F.3d 351, 353 (4th Cir. 2006). “The subjective

component can be met through the presentation of candid,

credible, and sincere testimony demonstrating a genuine fear of

persecution . . . . [It] must have some basis in the reality of

the circumstances and be validated with specific, concrete facts

. . . and it cannot be mere irrational apprehension.” Qiao Hua

*
The Petitioners do not claim they suffered past
persecution.

3
Li, 405 F.3d at 176 (internal quotation marks and citations

omitted).

A determination regarding eligibility for asylum or

withholding of removal is affirmed if supported by substantial

evidence on the record considered as a whole. INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). Administrative findings of

fact are conclusive unless any reasonable adjudicator would be

compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B)

(2006). This court will reverse the Board only if “the

evidence . . . presented was so compelling that no reasonable

factfinder could fail to find the requisite fear of

persecution.” Elias-Zacarias, 502 U.S. at 483-84; see Rusu v.

INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). When both the

Board and the immigration judge issue decisions in an

immigration case, this Court will review both decisions.

Kourouma v. Holder, 588 F.3d 234, 239-40 (4th Cir. 2009).

An applicant’s credible testimony “may be sufficient

to sustain [her] burden of proof without corroboration.”

Marynenka v. Holder, 592 F.3d 594, 601 (4th Cir. 2010) (internal

quotation marks omitted). “However, even for credible

testimony, corroboration may be required when it is reasonable

to expect such proof and there is no reasonable explanation for

its absence.” Chen Lin-Jian v. Gonzales, 489 F.3d 182, 191-92

(4th Cir. 2007).

4
“Regardless of [China’s] policy generally prohibiting

the birth of additional children following the birth of a son,

to be eligible for [asylum] relief the respondent must also meet

her burden of demonstrating a reasonable possibility that

Chinese Government officials would enforce the family planning

policy against her through means constituting persecution.”

Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 211 (B.I.A.

2010), abrogated on other grounds, Hui Lin Huang v. Holder, 677

F.3d 130 (2d Cir. 2012). The applicant must show that there is

a government policy implicated by the births at issue, that the

births in question are a violation of that policy and there is a

reasonable possibility that government officials would enforce

the policy against the petitioner through means constituting

persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43

(2d Cir. 2008).

The Board and the immigration judge relied upon

reports issued by the State Department in support of the finding

that the Petitioners did not show an objective well-founded fear

of persecution. There was no support in the reports for the

conclusion that the Petitioners risk being forcibly sterilized

because they had two children in the United States. While they

may face a fine, there was no evidence to compel the conclusion

that the fine would be so severe that it would be tantamount to

5
persecution. We conclude that there was no error in relying

upon the State Department’s reports.

A State Department report on country conditions is
highly probative evidence in a well-founded fear case.
Reliance upon these reports makes sense because this
inquiry is directly within the expertise of the
Department of State. . . .

Absent powerful contradictory evidence, the existence
of a State Department report supporting the BIA’s
judgment will generally suffice to uphold the Board’s
decision. Any other rule would invite courts to
overturn the foreign affairs assessments of the
executive branch.

Gonahasa v. INS, 181 F.3d 538, 542-43 (4th Cir. 1999). The

Board relies upon the State Department’s reports because “they

are based on the collective expertise and experience of the

Department of State which has diplomatic and consular

representatives throughout the world.” Matter of H-L-H- & Z-Y-

Z-, 25 I. & N. Dec. at 213.

The Petitioners contend that neither the Board nor the

immigration judge considered the documentary evidence they

submitted. In this instance, the immigration judge detailed the

contents of the administrative record and then stated that all

of the evidence was considered. The Petitioners fail to point

to any evidence that seriously undermines the State Department’s

reports regarding the treatment of persons who return to China

after giving birth to two children overseas.

6
We also conclude there was no error in the immigration

judge’s and Board’s decision to give little weight to the more

localized evidence, such as the affidavits from friends and

family and the village committees’ responses to inquiries. The

evidence was unnotarized and in some instances unsigned. Also,

some of the evidence did not indicate that the Petitioners would

be forcibly sterilized or heavily fined. While some of the

evidence described instances of forced abortions or

sterilizations, there was nothing that could be related to the

Petitioners’ immediate situation.

We also reject the Petitioners’ argument that their

burden of proof was too high. The State Department’s reports

were highly probative evidence that went against their claims

for asylum and withholding of removal. The Petitioners failed

to submit sufficient evidence that compels a different result.

Because substantial evidence supports the denial of

asylum and withholding of removal and the record does not compel

a different result, we deny the petition for review. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

PETITION DENIED

7

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/820424. Public record. Not legal advice.