Sunday, August 21, 2005

Zheng: asylum lost because kid did something implausible and lacked corroboration

Filed 08/15/05, No. 04-3008
Zheng v. Atty Gen USA
(Zheng v. Gonzales)

The government successfully asked the Third Circuit to make their non-precedential decision into a published precedential decision. The difference is that a precedential decision can be cited as controlling over the courts covered by the geographic region of the Third Circuit. A non-precedential decision is not binding.

In this appeal, the Third Circuit upheld the immigration judge's rulings that the content of the asylum claim did not seem very plausible and the immigrant failed to come forward with corroborating evidence that should have been available.

First, while 13 years old, he was asked by his schoolteacher in China to write an essay. In an act that is either brazen or implausible, he wrote an essay that heavily criticized the Chinese government for forcibly sterilizing his mother (who had violated the one-child policy). The Third Circuit said it was a bit implausible for someone to write a scatching essay in school. Gee, and I thought kids did the darndest things.

Second, the judge ruled that the immigrant lacked corroborating evidence. The unduly harsh REAL ID Act changed the law and makes it extremely difficult to challenge this finding -- appeals must prove more than that the judge seemed to be wrong, appeals must now submit so much evidence that a reasonable judge would be compelled to conclude that the evidence sought is unavailable.

Here, the immigrant did not submit any explanation for not having testimony from his relatives in China, which he said he was in communication with. He also did not have his school records to corroborate the problem with his schoolteacher.

The Third Circuit denied the appeal, even though it noted that the immigration judge did make two mistakes: the judge said the immigrant was not believable based partly on two illogical conclusions. First, the judge said it was inherently implausible that the schoolteacher told the child to go home and write an explanation as opposed to forcing the child to write an explanation in the schoolhouse. The Third Circuit said the request to go home to write the essay was plausible. Second, the judge ruled it was deceptive for the child not to have listed where he hid for a few weeks when his asylum claim listed his places of residence. The Third Circuit said it is understandable and excusable for a child who probably did not read or sign the actual asylum claim not to list places of hiding.


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