Jian Li Zheng v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3927
___________
JIAN LI ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-740-723)
Immigration Judge: Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 10, 2010
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
Opinion filed: March 17, 2010
_____________
OPINION
_____________
PER CURIAM.
Jian Li Zheng has filed a petition for review of the final order by the Board
of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”’s) denial of
Zheng’s requests for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). For the reasons that follow, we will deny the

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petition for review.
The parties are familiar with the background of this case, and so we provide
only a summary of the proceedings. Zheng is a native and citizen of the People’s
Republic of China who arrived in the United States in December 2005. She was placed in
removal proceedings as an arriving alien without a valid entry document (8 U.S.C.
§ 1182(a)(7)(A)(i)(I)). She conceded removability and applied for asylum, withholding
of removal, and CAT relief as a Falun Gong practitioner. The IJ held an evidentiary
hearing on Zheng’s claims on December 21, 2006.
Zheng testified about her involvement with Falun Gong. Zheng stated that
she often had been ill with throat infections and fever, and she had a growth or lump in
her throat, as diagnosed by a doctor in China. She later described her condition as a “big
membrane of cells” near her mouth. A friend with similar health afflictions introduced
her to the practice of Falun Gong. Zheng began her practice in 2003, and her throat
condition improved. Zheng stated that she used to practice Falun Gong every day, either
at her home or at her friend’s house. While at her friend’s house in November 2004, her
parents telephoned to tell her that the police had searched their home looking for her
because of her Falun Gong activities. Zheng did not return home and instead went to live
with her grandaunt, who lived about two hours away. She testified that in January 2005,
the police came to her grandaunt’s home while Zheng was outside, gathering flowers on
the mountain near her grandaunt’s home. She saw the police cars and remained out of

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view until they departed. Her grandaunt later told Zheng that the police had accused her
of violating the law by practicing Falun Gong. Zheng then went to stay at another
friend’s house, and then she arranged to come to the United States. Zheng stated that the
police continued to visit her home about once a week during this period and that her
parents were threatened with arrest if she did not surrender. She fears returning to China
because she would be arrested for her Falun Gong practice and for illegally fleeing the
country. Zheng submitted supporting documentation, including identity documents and a
letter from her father.
On cross-examination, Zheng stated that she was not certain about how
often the police visited her parents’ home to look for her, but she affirmed that her parents
have not been arrested despite that threatened outcome. When asked why she had
testified that the police came to look for her at her grandaunt’s house in January 2005
when her written statement indicated that the event occurred in May 2005, Zheng
changed her testimony, affirming that the date was May 2005. As further explanation,
she stated that the interpreter was speaking too quickly. The IJ explored whether there
possibly could have been a misunderstanding or interchangeability of the Chinese words
for “January” and “May,” and whether the interpreter heard “May” but interpreted
“January”; the IJ observed that the words in Chinese were completely different in sound.
Ultimately, in attempting to clarify her testimony concerning the relevant date, Zheng
explained that she had testified regarding her arrival at her grandaunt’s house in

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November 2004 and the events that followed, then stated, “I don’t know if I said
November and January and got confused.” (A.R. 108.)
The IJ found that Zheng lacked credibility, denied all forms of relief, and
ordered removal to China. On August 25, 2008, the BIA dismissed the appeal. The BIA
found no clear error in the IJ’s adverse credibility determination, citing Zheng’s
unpersuasive testimony regarding her medical condition, how authorities first discovered
her activities, and dates when police searched for her. This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under
8 U.S.C. § 1252(a). To the extent that the BIA deferred to the IJ’s credibility findings, we
will review the IJ’s decision as supplemented by the BIA. See Xie v. Ashcroft, 359 F.3d
239, 242 (3d Cir. 2004). Credibility determinations are reviewed under the substantial
evidence standard. See id. at 243. Adverse credibility determinations based on
speculation or conjecture, rather than on record evidence, are reversible. Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002). Zheng’s asylum application was filed after May 11,
2005, and thus the provisions of the REAL ID Act apply. See Chukwu v. Att’y Gen., 484
F.3d 185, 189 (3d Cir. 2007). Under the REAL ID Act, an adverse credibility
determination can be based on inconsistencies, inherent implausibilities, inaccuracies, and
other factors, without regard to whether they go to the heart of an applicant’s claim.
8 U.S.C. § 1158(b)(1)(B)(iii). The Court must uphold the credibility determination of the
BIA unless “any reasonable adjudicator would be compelled to conclude to the contrary.”

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Because substantial evidence supports the adverse credibility finding, we1
need not reach Zheng’s arguments relating to her eligibility for asylum relief.
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8 U.S.C. § 1252(b)(4)(B).
Zheng tacitly challenges the applicability of the REAL ID Act provision
regarding credibility determinations, contending that the agency’s adverse credibility
determination rests upon minor and irrelevant discrepancies. We need not consider the
effects of the new provisions, however, because we conclude that substantial evidence
supports the adverse credibility determination on matters that concern the heart of
Zheng’s claim. For example, the BIA noted Zheng’s unpersuasive testimony regarding
the dates the police searched for her–an issue which Zheng concedes is a material issue to
her asylum claim. See Petr’s Br. at 14. Her initial testimony indicating a January 2005
date was inconsistent with her changed testimony and her written statement indicating a
May 2005 date. This date discrepancy concerns an event that was purportedly pivotal in
Zheng’s decision to flee to the United States. We agree with the BIA’s conclusion that
Zheng’s explanations at the hearing were inadequate to resolve the inconsistencies. We
conclude that the record contains substantial evidence to support the adverse credibility
finding and does not compel a contrary finding.1
We discern no reason to disturb the agency’s denial of asylum and
withholding of removal. Zheng presents no argument regarding her claim for protection
under the CAT. We deem any challenge to the denial of CAT relief to be waived and will

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not address it. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).
We will deny the petition for review. The government’s motion to proceed
on the administrative record is granted.

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