Lui Gui Zheng v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-1155
___________
LUI GUI 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. A96 336 167)
Immigration Judge: Mirlande Tadal
________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 2, 2008
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: April 9, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM
Lui Gui Zheng, a native and citizen of China, petitions for review of a decision by
the Board of Immigration Appeals (“BIA”) dismissing Zheng’s appeal of an immigration

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judge’s denial of his application for asylum, withholding of removal, and relief under the
Convention Against Torture. For the following reasons, we will grant the petition for
review and remand for further proceedings consistent with this opinion.
Zheng is a native and citizen of the People’s Republic of China. He entered the
United States on or about November 26, 2004. That same day, Zheng was placed in
removal proceedings and was charged with removability pursuant to Immigration
Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). On February 17,
2005, Zheng filed an application for asylum, withholding of removal, and protection
under the Convention Against Torture. On June 14, 2005, a merits hearing was held
before Immigration Judge Mirlande Tadal.
According to Zheng’s testimony before the Immigration Judge and his asylum
application, Zheng left China because he was persecuted by the Chinese government for
“[s]preading Falun Gong.” Zheng first became involved with Falun Gong in 1999 when
he met a friend who began to teach him about the movement. In 2000, this friend gave
Zheng some Falun Gong books and handbills to keep at his house. Zheng testified that he
read these materials whenever he had time, but did not participate in Falun Gong
activities.
Zheng contends that, in March 2004, he overheard his co-workers speaking
negatively about Falun Gong and concluded that they had been “brainwashed” by the
Chinese government’s anti-Falun Gong propaganda. Zheng testified that he decided to

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attempt to change his co-workers’ views. Zheng went home and retrieved the handbills
about Falun Gong that his friend had previously given him. Zheng then returned to work
and distributed them to his co-workers.
Zheng further testified that, on March 25, 2004, around 9:00 a.m., two village
officials went to the construction site where Zheng was working, and accused him of
spreading Falun Gong materials and Falun Gong thoughts. Zheng was detained and
brought to a local village office. Zheng claims he was interrogated and ordered to
confess to spreading Falun Gong. When Zheng refused, he was beaten and his hands
were burned. Zheng was not given anything to eat during his detention. When Zheng’s
family learned he had been detained around 10:00 p.m. that same day, they went to the
office where he was held, and paid a bribe to his guard. Zheng escaped out an unlocked
back door and headed for the waterside where his family was waiting for him with a boat.
Zheng took the boat to another village and hid at his aunt’s home. Eventually, Zheng fled
to the United States.
In support of his application, Zheng submitted an addendum recounting his
experiences, an affidavit from a friend in the United States attesting to his current practice
of Falun Gong, a letter from his father, a Chinese residence ID card, a birth certificate,
pictures of Zheng practicing Falun Gong in the United States, and background
information regarding the Chinese government’s suppression of Falun Gong. The 2004
State Department Country Report for China is also a part of the record.

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On appeal, Zheng contends for the first time that the IJ failed to make an explicit1
negative credibility determination. However, before the BIA, Zheng took the position
that the IJ “erred in making a negative credibility finding in this case.” Upon reviewing
4
The IJ denied Zheng’s application. The IJ found that his testimony “overall was
unbelievable and implausible” and that he was “unable to testify credibly as to the alleged
events that purportedly took place in March 2004.” The IJ concluded that his testimony
was inconsistent in that he initially testified he had a conversation with his co-workers on
March 25, 2004, and then changed his testimony to state that the conversation took place
on March 1, 2004. The IJ found Zheng’s testimony inconsistent because he initially
stated that he was able to convert his co-workers into believing that Falun Gong was not a
cult, and then later stated that he had not convinced his co-workers of this. The IJ
explained that Zheng appeared to have limited, if any, knowledge of Falun Gong because
he was unable to provide any specific information about what he had read and what
involvement he had with the movement.
The IJ further rejected as “extremely unlikely” Zheng’s contention that his parents
were able to bribe an official and secure his escape from detention. The IJ explained that
Zheng’s account of his escape had a lot of “holes” in it because, given that Zheng did not
know of his parents’ arrangements until later, it was unclear how Zheng knew to walk out
the open back door, and find a boat waiting for him at the waterside. Accordingly, the IJ
concluded that Zheng had not established that he had suffered past persecution or had a
well-founded fear of persecution if he returned to China. The IJ recognized, however,1

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the IJ’s oral decision, we conclude the IJ clearly did make an adverse credibility
determination, as Zheng conceded before the BIA.
5
that “had [Zheng] provided credible testimony, had he submitted clear evidence that the
government did indeed seek to harm him because of his involvement with the Falun
Gong, the respondent would have established his eligibility for asylum.”
Citing Matter of Burbano, 20 I&N Dec. 872 (BIA 1994), the BIA adopted and
affirmed the Immigration Judge’s June 14, 2005, oral decision “insofar as she found that
the respondent had not satisfied the burden of proof for the requested relief.” The BIA
expressed agreement with the Immigration Judge’s conclusion that Zheng failed to
provide sufficient details to explain certain implausible aspects of his claim, including
how he was able to escape from his detention “by walking through an unlocked rear door
. . to find, without any prior notice . . . his parents waiting to aid his escape.” The BIA
also found that, in view of Zheng’s inability to provide “meaningful details about Falun
Gong,” it was “implausible” that he was able to successfully convert anyone to Falun
Gong. Moreover, although this issue was not analyzed by the Immigration Judge, the
BIA went on to hold that the documentary evidence that Zheng submitted was “minimal”
and constituted inadequate “corroborating evidence.” The BIA added that Zheng’s
testimony about the events of March 2004 was “notably lacking in detail.” The BIA
concluded, therefore, that it was “unable to determine that the Immigration Judge’s
findings of fact were clearly erroneous.”

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Zheng applied for asylum before May 11, 2005, and therefore the REAL ID Act’s2
new standard for credibility determinations does not apply to him. Chukwu v. Attorney
General of the United States, 484 F.3d 185,189 (3d Cir. 2007).
6
We exercise jurisdiction to review the BIA’s final order of removal under INA
§ 242(a), 8 U.S.C. § 1252(a). Because the BIA appears to have substantially relied on the
findings of the IJ, we have jurisdiction to review the decisions of both the BIA and the IJ.
See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
Our review of these decisions is for substantial evidence, considering whether they
are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)
(quotation omitted). The decisions must be affirmed “unless the evidence not only
supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471
(3d Cir. 2003) (quotation omitted). Adverse credibility determinations must be based on
“specific, cogent reasons,” not on “speculation, conjecture, . . . and otherwise
unsupported personal opinion,” Dia v. Ashcroft, 353 F.3d 228, 249-50 (3d Cir. 2003) (en
banc), or minor inconsistences that do not go to the “heart of the asylum claim.” Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting Ceballos-Castillo v. INS, 904 F.2d
519, 520 (9th Cir. 1990)).2
The legal precepts underlying Zheng’s claim are well established. To establish
eligibility for asylum, an applicant must demonstrate past persecution or a well-founded
fear of persecution that is both subjectively and objectively reasonable. Singh v.

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Gonzales, 406 F.3d 191, 195 (3d Cir. 2005). An applicant who establishes that he or she
has suffered past persecution on account of one of the five grounds enumerated in the
INA “triggers a rebuttable presumption of a well-founded fear of future persecution, as
long as that fear is related to the past persecution.” Id. at 196 (citing 8 C.F.R. §
208.13(b)(1)) (quotation omitted). Whereas asylum is discretionary, withholding of
removal under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), is mandatory if the
applicant meets a more stringent standard – that it is “more likely than not” that he or she
will be persecuted on account of race, religion, nationality, membership in a particular
social group, or political opinion if deported to his or her home country. Id. (quoting
Lukwago v. INS, 329 F.3d 157, 182 (3d Cir. 2003)). To obtain relief under the
Convention Against Torture, an applicant must establish that it is more likely than not that
he would be tortured if removed to the proposed country of removal. Toure v. Attorney
General of the United States, 443 F.3d 310, 317 (3d Cir. 2006).
We have recognized that an alien may be eligible for asylum if the persecution that
he has suffered, or has a well-founded fear of suffering, is on account of a political
opinion the applicant actually holds or on account of one the foreign government has
imputed to him. Singh, 406 F.3d at196 (quotation omitted). In determining whether
persecution existed on account of political opinion, we focus on whether the persecutor
has attributed a political view to the victim and acted on that attribution. Id.
Here, the basis for the BIA’s dismissal of Zheng’s appeal is not entirely clear.

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Thus, the instant case is distinguishable from cases where we have previously applied3
the rule that, where the BIA makes no explicit findings about an applicant’s credibility,
we will proceed as if the applicant’s testimony were credible. In the cases in which we
have applied this rule, the BIA has made no findings of its own regarding credibility,
assumed credibility, or indicated generally that it found the applicant credible. See
Lusingo v. Gonzales, 420 F.3d 193,197 n.5 (3d Cir. 2005); Li v. Attorney General, 400
F.3d 157, 163-64 (3d Cir. 2005); Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003).
8
Rather than explicitly adopt the IJ’s adverse credibility finding, the BIA stated that it was
adopting and affirming the IJ’s oral decision only “insofar as she found that respondent
had not satisfied the burden of proof for the requested relief.” However, the BIA’s
analysis appears to affirm the IJ’s adverse credibility finding because the BIA expressed
approval of the IJ’s findings that Zheng’s claims were implausible and lacking in detail.3
However – although the issue was not analyzed by the IJ – the BIA went on to consider
whether Zheng had presented adequate corroborating evidence for his claims. The BIA
“observe[d]” that Zheng had presented inadequate corroborating evidence, adding that
“the documentary evidence submitted at the hearing was minimal, consisting of a letter
from the respondent’s father, and a letter from a Falun Gong practitioner in New York.”
Zheng’s putative failure to present adequate corroborating evidence appears to have been
the basis for the BIA’s holding that Zheng “was unable to establish past persecution or a
well-founded fear of persecution.”
As we have previously held, the BIA may sometimes require “otherwise-credible
applicants to supply corroborating evidence in order to meet their burden of proof.”

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The Government contends that the BIA’s “commentary” regarding corroboration was4
made in the form of observations, not holdings, and therefore does not trigger the three-
pronged test detailed in Abdulai. We disagree, given that the BIA’s statements about
corroboration were immediately followed by the following holding: “In light of the
foregoing, the respondent is unable to establish past persecution or a well-founded fear of
persecution.”
We have held that the REAL ID Act does not change our rules regarding the duty to5
develop the applicant’s testimony, and in particular, to develop it in accord with the
Abdulai steps. Chukwu, 484 F.3d at 192.
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Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001). The BIA has adopted rules which
require corroboration in instances where it is reasonable to expect such proof from a
witness and there is no satisfactory explanation for its absence. Toure, 443 F.3d at 323.
We adopted the BIA’s rules “as our own” in Abdulai and formulated a three-part inquiry:
(1) an identification of facts for which it is reasonable to expect corroboration; (2) the
presence or absence of such corroboration in the record; and (3) the adequacy of the
applicant’s explanation for its absence. Id.; see also Mulanga v. Ashcroft, 349 F.3d 123,
133-34 (3d Cir. 2003) (discussing Abdulai). Neither the BIA nor the IJ engaged in the4
foregoing three-part inquiry here. Zheng was not given notice of what corroboration was
expected, nor was he given an opportunity to present an explanation for his putative
failure to provide such corroboration. See Chukwu, 484 F.3d at 192. Indeed, no
testimony regarding these issues was ever developed. Under these circumstances, we are5
obliged to remand. See Toure, 443 F.3d at 323 (“We have repeatedly held that the BIA’s
. . . failure to engage in the three-part inquiry described above requires that the BIA’s
findings regarding corroboration be vacated and remanded.”); Voci v. Gonzales, 409 F.3d

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607, 616-617 (3d Cir. 2005) (remanding where it was unclear from the BIA’s opinion
whether the BIA believed the applicant had failed to provide adequate corroboration, and
where, even if this had been clear, the BIA did not apply the three-part Abdulai inquiry);
Kayembe, 334 F.3d at 238-239 (“When deficiencies in the BIA’s decision make it
impossible for us to meaningfully review its decision, we must vacate that decision and
remand so that the BIA can further explain its reasoning.”)
For the foregoing reasons, we will grant the petition for review, and remand the
case to the BIA for clarification of the basis for its dismissal and for further proceedings
consistent with this opinion.

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