Weng Zhen Shou v. THE ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2816
___________
WENG ZHEN SHOU,
Petitioner
v.
THE ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A98-564-499)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2010
Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges
Opinion filed: March 18, 2010
___________
OPINION
___________
PER CURIAM
On April 27, 2005, petitioner Weng Zhen Shou, a native and citizen of the
People’s Republic of China, was served with a notice to appear charging him with

-- 1 of 6 --

Petitioner’s surname is “Weng” and he has been referred to as such throughout the1
course of these removal proceedings. (See, e.g., A.R. 136.) For the sake of consistency
and accuracy, we will refer to petitioner as Weng throughout this opinion.
2
removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Weng conceded removability as1
charged, but applied for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”), on the ground that he had suffered past persecution and feared
future persecution by the PRC as a practitioner of Catholicism. Specifically, Weng
alleged that in 2004, at the urging of his friend and to alleviate his depression, he joined
the Catholic Church. According to Weng, the police discovered his church attendance
and came to his house and threatened his parents. Weng testified that, fearing future
persecution, he went to live with his aunt and then fled to the United States.
On April 30, 2007, an Immigration Judge (“IJ”) rendered an oral decision and
order denying Weng’s various petitions for relief. Specifically, the IJ found Weng
incredible with regard to his claims of police threats and, further concluded that he failed
to satisfy his burden of proof by providing the necessary evidence of corroboration of the
specifics of his claim. The IJ also found that Weng did not prove future persecution
based on his Catholicism. On appeal, the Board of Immigration Appeals (“BIA”)
affirmed the IJ’s decision. Weng then filed a timely petition for review in this Court.
We have jurisdiction over Weng’s petition pursuant to 8 U.S.C. § 1252(a). We
uphold the BIA’s determinations if they are supported by reasonable, substantial and
probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d

-- 2 of 6 --

Because Weng filed his asylum application after the enactment of the REAL ID Act,2
the IJ’s credibility determination was made without regard to whether an inconsistency,
inaccuracy, or falsehood went to the heart of Weng’s claim. See Chukwu v. Att’y Gen.,
484 F.3d 185, 189 (3d Cir. 2007). We have not considered whether the REAL ID Act’s
provision is consistent with principles of due process. We need not do so here, however,
because the IJ’s adverse credibility determination rested on inconsistencies that were
central to Weng’s claim of persecution. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.
2009) (canvassing the provision).
3
185, 197 (3d Cir. 2008). When the BIA substantially relies on the IJ’s adverse credibility
determination, we have jurisdiction to review both opinions. Xie v. Ashcroft, 359 F.3d
239, 242 (3d Cir. 2004).
To be granted asylum, Weng needed to show that he is “unable or unwilling to
return to [China] . . . 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); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible
for withholding of removal, Weng was required to demonstrate that “there is a greater-
than-fifty-percent chance of persecution” in China based on one of these protected
grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C.
§ 1231(b)(3)(C). For relief under the CAT, Weng must demonstrate that it is more likely
than not that he would be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
The BIA’s finding that Weng’s testimony was not credible is supported by
substantial evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006)2
(holding that an adverse credibility determination is appropriately based on inconsistent

-- 3 of 6 --

The interviewer also informed Weng that he had the right to have a “consultant”3
present. Weng declined the offer. (A.R. at 151.)
4
statements and contradictory evidence). According to the IJ and BIA, there were
inconsistencies among Weng’s testimony, his credible fear interview and supporting
letters he submitted from his parents. Specifically, the BIA found discrepancies in his
descriptions of encounters with the police: in his credible fear application, Weng stated
that the police tried to arrest him on his way to church; however, in his testimony, he
stated that police came to his house to arrest him while he was away and he learned of the
incident from his parents.
Weng argues that an inconsistency between his credible fear interview and his
testimony is not sufficient to uphold the IJ’s credibility assessment. We have held that
inconsistencies between an airport statement and an asylum seeker’s testimony before an
IJ are not sufficient, standing alone, to support a BIA finding that petitioner was not
credible. See Chukwu, 484 F.3d at 191. In this case, however, the IJ made a distinction
between an airport statement (which the IJ did not consider) and the later credible fear
interview. The record reveals that the credible fear interview was a detailed question and
answer session which occurred at the detention center with an interpreter present and took
place several days after Weng arrived in the United States (A.R. 151-52) Therefore,3
most of the concerns we have had about reliance on an airport statement were not present.
See Fiadjoe v. Att’y Gen., 411 F.3d 135, 159 (3d Cir. 2005) (“Such an interview is likely

-- 4 of 6 --

5
to be hurried; language difficulties arise; the results may be inaccurately recorded, and an
arriving alien who has suffered abuse in his home country may be reluctant to reveal full
information in his or her first meeting with the government.”).
Credibility aside, an asylum applicant may be required to supply corroborating
evidence in order to meet his burden of proof. See Chen v. Gonzales, 434 F.3d 212, 218
(3d Cir. 2005). Here, as the IJ noted, Weng failed to provide any corroborating evidence
except for letters from his parents which were inconsistent with parts of his testimony.
Specifically, the parents’ letters stated that Weng got involved with Catholicism because
he was depressed and having trouble at a computer school, whereas Weng testified that he
was a good student at a “regular” school. In sum, Weng has not demonstrated that the
BIA’s adverse credibility determination was erroneous.
Because Weng did not satisfy the standard for asylum, he cannot satisfy the higher
burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.
1991).
Weng supports his CAT claim by citing evidence that Falun Gong practitioners are
tortured in China. (Petr.’s Br. at 13.) Weng, however, has not pointed to any evidence in
the record which shows that it is more likely than not that he would be tortured in China
because of his practice of Catholicism. Indeed, as the BIA noted, Catholicism is a
recognized religion in China and its practice, though restricted, is permitted. Therefore,
we find that the BIA’s decision denying Weng’s CAT claim is also supported by

-- 5 of 6 --

6
substantial evidence.
For the foregoing reasons, we deny Weng’s petition for review.

-- 6 of 6 --