Yu Wang Wang v. Holder ( 2011 )

10-4213-ag
Wang v. Holder
BIA
Hom, IJ
A088 377 970
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of November, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT A. KATZMANN,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 YU WANG WANG,
14 Petitioner,
15
16 v. 10-4213-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Lee Ratner, New York, New York
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Carl H. McIntyre, Jr.,
27 Assistant Director; Kate D. Balaban,
28 Office of Immigration Litigation,
29 United States Department of Justice,
30 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DISMISSED in part, and DENIED in part.
5 Yu Wang Wang, a native and citizen of China, seeks
6 review of a September 28, 2010, order of the BIA affirming
7 the July 14, 2008, decision of an Immigration Judge (“IJ”),
8 which denied Wang’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Yuwang Wang, No. A088 377 970 (B.I.A. Sept.
11 28, 2010), aff’g No. A088 377 970 (Immig. Ct. N.Y. City July
12 14, 2008). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
17 2008) (per curiam). The applicable standards of review are
18 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
19 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Asylum – Pretermission
21 In pretermitting Wang’s asylum application as untimely,
22 the agency found that a receipt indicating that Wang stayed
2
1 in a hotel in China, dated March 2007, was insufficient
2 evidence that his June 2007 asylum application was filed
3 within one year of his entry into the United States. The IJ
4 found that this document was entitled to “very little
5 evidentiary weight,” noting that the receipt was:
6 (1) unauthenticated; (2) mailed to Wang after his arrival in
7 the United States; and (3) a tax receipt reflecting a
8 payment by the hotel to the tax bureau, which raised
9 questions as to why Wang’s name was on the receipt and how
10 he was able to obtain it. Wang argues that the IJ erred in
11 requiring authentication for the receipt because it is not
12 an official document but was “issued by a private business.”
13 Because this argument does not raise a question of law, as
14 it turns on the factual nature of the document, it is
15 outside the statutory ambit of our review. 8 U.S.C.
16 §§ 1158(a)(2)(B), 1252(a)(2)(D); Gui Yin Liu v. INS, 508
17 F.3d 716, 720 (2d Cir. 2007) (per curiam). Accordingly, the
18 petition is dismissed as to the denial of asylum.
19 Withholding of Removal
20 The agency’s adverse credibility determination is
21 supported by substantial evidence. Wang’s argument that the
22 determination was based on speculation and conjecture is
3
1 unavailing. The IJ found implausible Wang’s assertion that
2 although he publicly expressed his anger about China’s
3 family planning policy many times between 1997 and 2006, he
4 was not arrested or even confronted by the authorities until
5 2006. Given Wang’s testimony that he spoke out against the
6 government in the crowded center of his village on many
7 occasions between 1997 and 2006, and his explanation that he
8 was not confronted by the authorities because no one
9 reported him, the IJ reasonably concluded that the testimony
10 was implausible when “viewed in the light of common sense
11 and ordinary experience.” Siewe v. Gonzales, 480 F.3d 160,
12 168-69 (2d Cir. 2007). The IJ also reasonably relied on
13 Wang’s failure to provide a detailed description of what he
14 said when allegedly condemning China’s family planning
15 policy, as the record supports the IJ’s observation that
16 Wang “gave very little in the way of details and specifics
17 as to what he expressed in opposition to the [family
18 planning] policy” other than “express[ing] anger and
19 curs[ing] the cadres.” See Jin Shui Qiu v. Ashcroft, 329
20 F.3d 140, 152 (2d Cir. 2003), overruled in part on other
21 grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d
22 296, 305 (2d Cir. 2007) (en banc).
23
4
1 In finding Wang not credible, the agency further relied
2 on two inconsistencies in his testimony. Wang testified
3 that he feared returning to China because he had “violated
4 [the] family planning policy.” As the IJ noted, however,
5 according to Wang’s earlier testimony, he did not violate
6 the policy, but waited the required four years after the
7 birth of his first child and was permitted by the family
8 planning authorities to have a second child. The IJ also
9 found that Wang was inconsistent as to the number of hours
10 he was held in detention, observing that although Wang
11 testified that he was taken into custody about 14 hours
12 before his release, he also stated that he was detained
13 “[a]bout a little over ten hours.” Although minor, this
14 inconsistency is supported by the record. See Siewe v.
15 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where there are
16 two permissible views of the evidence, the factfinder’s
17 choice between them cannot be clearly erroneous.”) (quoting
18 Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).
19 Having found Wang not credible, the IJ reasonably noted
20 Wang’s lack of corroborative evidence. See Biao Yang v.
21 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Although Wang
22 argues that the IJ erred in giving little weight to a letter
5
1 from his wife, we have recognized that the weight afforded
2 to the applicant’s evidence in immigration proceedings lies
3 largely within the discretion of the IJ. See Xiao Ji Chen
4 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006);
5 Matter of H-L-H-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010).
6 In sum, the IJ’s reasonable findings of implausibility,
7 inconsistencies, vagueness, and lack of corroboration, taken
8 together, adequately support the agency’s adverse
9 credibility determination. See Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 167 (2d Cir. 2008) (per curiam).
11 For the foregoing reasons, the petition for review is
12 DISMISSED in part, and DENIED in part. As we have completed
13 our review, any stay of removal that the Court previously
14 granted in this petition is VACATED, and any pending motion
15 for a stay of removal in this petition is DISMISSED as moot.
16 Any pending request for oral argument in this petition is
17 DENIED in accordance with Federal Rule of Appellate
18 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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