Xiang Chun Zheng v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2098
___________
XIANG CHUN ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_____________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A77-924-740)
Immigration Judge: Honorable Charles M. Honeyman
_____________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 9, 2008
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed April 15, 2008 )
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OPINION OF THE COURT
___________
PER CURIAM
Xiang Chun Zheng, a native and citizen of China, petitions for review of a final
order of removal. We will deny the petition for review.

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The BIA noted that Zheng’s timely recantation of his initial application precluded a1
finding of a frivolous filing. See Muhanna v. Gonzales, 399 F.3d 582, 588-89 (3d Cir.
2005).
2
Zheng arrived in the United States without valid entry documents; he conceded
removability but sought asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”) in an initial application for relief. After the Immigration Judge
(“IJ”) warned him about the consequences of filing a frivolous application, Zheng
withdrew his request for asylum and withholding of removal and instead sought relief
only under the CAT. Zheng alleged that Chinese officials, upon his repatriation to1
China, would detain him for leaving without permission and that the conditions of his
detention would amount to torture. Zheng also claimed to owe $20,000 to the snakeheads
who assisted him in coming to the United States. Zheng testified that if he does not pay
his debt, the smugglers—who Zheng claimed are connected to corrupt local government
officials—would torture him. The IJ denied Zheng’s application, and the Board of
Immigration Appeals (“BIA”) affirmed. Zheng filed a timely petition for review.
The primary issue Zheng raises on appeal is whether the IJ applied an erroneous
legal standard in light of our decision in Silva-Rengifo v. Attorney General of the United
States, 473 F.3d 58, 70 (3d Cir. 2007). CAT requires that torturous conduct be inflicted
“by or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). In Silva-Rengifo, we
held: “acquiescence to torture requires only that government officials remain willfully

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3
blind to torturous conduct and breach their legal responsibility to prevent it.” Silva-
Rengifo 473 F.3d at 70. Zheng argues that, even though snakeheads are not government
officials, it is enough that the government is willfully blind to the snakeheads’ torturous
conduct.
We may review Zheng’s claim only if he has exhausted all administrative remedies
available to him as of right. 8 U.S.C. § 1252(d)(1). Because Zheng did not properly
present the willful blindness claim to the BIA, we lack jurisdiction to review the IJ’s
ruling. See Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir. 2003). The only mention of
“willful blindness” in Zheng’s BIA brief relates to his fear of torture at the hands of
Chinese officials. The brief did not reference snakeheads or private parties acting in
collusion with government officials. While Zheng’s BIA brief preceded our ruling in
Silva-Rengifo the factual basis for the claim was clearly addressed in the IJ’s decision.
Furthermore, several other circuits had adopted the “willful blindness” standard at the
time Zheng filed his BIA brief. Silva-Rengifo, 473 F.3d at 70. Therefore, Zheng cannot
be excused from arguing either the legal or factual basis for the “willful blindness”
standard before the BIA; thus, the claim is waived. See Steevenez v. Gonzales, 476 F.3d
114, 117 (2d Cir. 2007) (per curiam) (in order to properly exhaust a claim, the issue raised
on appeal must be either a specific subsidiary legal argument or an extension of an
argument raised directly before the BIA).

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4
Zheng also alludes to the BIA’s decision determining that he did not meet his
burden of proof under CAT. To qualify for CAT protection an applicant bears the burden
of proving, through objective evidence, that it is more likely than not that he would be
tortured in the country to which he will be removed. Lavira v. Att’y Gen., 478 F.3d 158,
166 (3d Cir. 2007). The BIA’s decision that Zheng failed to meet the burden of proof is
supported by substantial evidence; therefore, we will affirm. See Guo v. Ashcroft, 386
F.3d 556, 561 (3d Cir. 2004). Specifically, Zheng failed to present evidence that, because
he illegally immigrated from China, he would likely be tortured upon his return. The IJ
found, and the BIA agreed, that even if there was evidence that an immigrant returning to
China would be detained, there was insufficient evidence presented to show that detainees
would likely be subjected to torture. `Further, the BIA, citing material inconsistencies in
the record and Zheng’s lack of credibility, plausibly found unpersuasive evidence that
Zheng’s brother was tortured when he attempted to leave China.
For the above-stated reasons, we will deny the petition for review.

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