and 07-4780 XIU YING ZHENG v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 07-4343 and 07-4780
XIU YING ZHENG
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent.
Petition for Review of an Order of the Board of Immigration Appeals
(No. A75-734-021)
Before: McKEE, HARDIMAN and
VAN ANTWERPEN, Circuit Judges.
Submitted pursuant to Third Circuit LAR 34.1(a)
June 11, 2009
(Opinion Filed: October 20, 2009)
OPINION
McKEE, Circuit Judge
Xiu Ying Zheng petitions for review of a decision of the Board of Immigration
Appeals affirming an Immigration Judge’s order denying her motion to reopen her
removal proceedings. For the reasons that follow, we will deny the petition for review.
I.
Inasmuch as we write primarily for the parties who are familiar with the factual
and procedural background of this case, we need not recite the facts underlying this

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Zheng’s brief recites the legal principles underlying withholding of removal and relief1
under the CAT. See Appellant’s Br. at 18-20. However, her argument seems limited to the denial
of her asylum claim. This discrepancy is not, however, significant because, any claim for those
two forms of relief would fail for the same reasons as her asylum claim.
The IJ also noted that the letter from Zheng’s parents offered by Zheng as proof of her2
asylum claim was too general to adequately support her claim of past and possible future
persecution due to her alleged practice of Falun Gong, and the IJ was skeptical because her
answers to questions about Falun Gong, were not sufficiently detailed or specific. We do not
attach the same significance to the suggested lack of detail about Falun Gong practice, and we are
not as troubled by the letter as the IJ appeared to be. Nevertheless, as we explain, other problems
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appeal.
Zheng argues that the Board erred in affirming the IJ’s adverse credibility
determination and in denying her motion to reopen based on ineffective assistance of
counsel.1
When the Board adopts the IJ’s decision, we review the IJ’s determination as the
final agency decision under the substantial evidence standard and affirm unless any
reasonable trier of fact would be “compelled to conclude to the contrary.” INA §
242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002). We review the Board’s decision to deny a motion to reopen only for an abuse of
discretion. INS v. Doherty, 502 U.S. 314, 323 (1992); Korytnyuk v. Ashcroft, 396 F.3d
272, 293 (3d Cir. 2005).
II.
The IJ was skeptical of Zheng’s Falun Gong claim because of her unremarkable
knowledge of Falun Gong, and conflicts in the testimony between Zheng and her husband
concerning her practice of Falun Gong.2

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with her testimony are sufficient to preclude overturning the IJ’s adverse credibility
determination.
Zheng also argues that her parents letter sufficiently corroborates her asylum claim.3
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Zheng claims the adverse credibility determination regarding her Falun Gong can
not be sustained because the IJ failed to sufficiently develop her testimony concerning her
knowledge and practice of Falun Gong, and perceived discrepancies between her
testimony and her husband’s testimony result from her husband’s inexperience and
general lack of knowledge about Falun Gong.3
Although Zheng’s counsel failed to question her about the Falun Gong claim, the
Government and the IJ extensively probed Zheng about her knowledge of Falun Gong.
We therefore reject Zheng’s argument that the IJ failed to sufficiently develop Zheng’s
testimony regarding he practice of Falun Gong. Zheng’s counsel attempted to withdraw
the Falun Gong based asylum claim at the outset of the hearing but was faced with
opposition from the IJ who was concerned about allowing the withdrawal of the claim
since Zheng had already established that she was still practicing Falun Gong and still
feared returning to China for that reason. Consequently, Zheng’s counsel did not
question her regarding the Falun Gong claim.
In addition, Zheng’s husband made several statements that directly contradicted
Zheng’s testimony. For example, Zheng testified that she only practices Falun Gong in
her bedroom, on her bed. Her husband testified that he has only observed Zheng
practicing Falun Gong in their living room. (Compare A.R. 185-85 with A.R. 208).

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Zheng’s husband also testified that he regularly observed Zheng practicing Falun Gong in
a seated, cross-legged position while Zheng repeatedly testified that she is unable to
perform the Falun Gong exercises while seated and therefore only practices those
exercises which may be done in a standing position. (Compare AR 191-192 with AR 208-
209). Even without more, such discrepancies would support the IJ’s skepticism of
Zheng’s asylum claim based Falun Gong practice.
III.
Zheng’s challenge to the IJ’s rejection of her claim of persecution based on
coercive family planning also fails. Zheng states that the IJ had a, “prejudiced unilateral
understanding of the asylum profile [2004 State Department report on China].” See
Appellant’s Br at 38. While it is true that the IJ appears to have relied heavily on the
State Department’s 2004 report of China’s coercive family planning policy, Zheng
mischaracterizes both the IJ’s interpretation of the report and the contents of the report.
The 2004 State Department report states: “U.S. diplomats in China are not aware
of any cases in which returnees from the United States were forced to undergo
sterilization procedures on their return.” A.R. 316. The report goes on to note that in the
Fujian province, where Zheng resided, there is little to no coercive implementation of
China’s family planning policy and that economic sanctions, when they are imposed, are
modest and used to pay for the added social costs associated with two family households,
such as education and healthcare. A.R. 313, 316. In addition, Zheng testified that she did

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not know of another situation where someone returned to her province from the United
States with a child who had been born in the United States. Accordingly, there was no
basis to fear that coercive policies would be applied to her. Her fears are largely based on
the family planning that was forced upon others in her family, but the situations are not
comparable to Zheng’s.
Accordingly, assuming arguendo that Zheng has a subjective fear of persecution
based on a coercive family planning policy, the record does not substantiate that fear as
objectively reasonable. See Zubeda v. Ashcroft, 333 F.3d 463, 468 (3d Cir. 2003). Zheng
has offered no evidence to suggest that Chinese nationals returning to China with more
than one child will be subject to forced sterilization or severe economic sanctions as
required to establish that any subjective fear is objectively reasonable. On the contrary,
substantial evidence in the record supports the IJ’s determination that any such fear is
unfounded.
Therefore, we will also deny the petition for review based on China’s coercive
family planning policy.
V.
Lastly, Zheng argues that the Board erred in denying her motion to reopen based
on ineffective assistance of counsel. In her petition for review, Zheng asserts that the
Board applied Matter of Lozada too rigidly. Zheng claims that requiring aliens to strictly
follow all of the procedural requirements of Lozada is contrary to our precedent.

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However, that is a misinterpretation of our case law. See Lu v. Ashcroft, 259 F.3d 127 (3d
Cir. 2001).
As the Board noted in its written opinion denying Zheng’s motion to reopen, “an
alien seeking to reopen proceedings by alleging ineffective assistance of counsel must (1)
submit an affidavit demonstrating and explaining in detail her agreement with her prior
counsel regarding legal representation, (2) submit evidence that she has informed prior
counsel of the allegations of ineffective assistance and provided the attorney with an
opportunity to respond, and (3) file a complaint against the attorney with proper
disciplinary authorities or explain why such a complaint has not been filed.” A.R. 3
(citing Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988); Lu v. Ashcroft, 259 F.3d 127
(3d Cir. 2001)).
Zheng failed to meet any of the elements set forth by Lozada. First, Zheng failed
to describe in detail her agreement with the prior counsel regarding legal representation,
including only the fact that she had filed her original appeal “through” him. Second,
Zheng submitted the complaint against her prior attorney to the wrong Bar Association;
Zheng’s motion to the Board included a copy of a complaint filed with the Departmental
Disciplinary Committee of New York. Zheng’s prior attorney is a member of the New
Jersey Bar. Third, Zheng failed to inform the prior attorney of her allegations of
ineffective assistance of counsel. There is therefore nothing on the record to suggest that
Zheng’s prior attorney was afforded a proper opportunity to respond to the allegations

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against him as required by Lozada.
Accordingly, we will deny the petition insofar as it claims the Board erred in
refusing to reopen based on ineffective assistance of counsel.
VI.
For all of the above reasons, we deny this petition for review.

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