Fengying Yang v. Attorney General of the United States , 476 F. App'x 993 ( 2012 )


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  •                                                         NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 11-2507
    ___________
    FENGYING YANG,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE
    UNITED STATES,
    Respondent
    ____________________________________
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    (Agency No. A093-396-912)
    Immigration Judge: Honorable Susan G. Roy
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    April 25, 2012
    Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges
    (Opinion filed: April 26, 2012 )
    ___________
    OPINION
    ___________
    PER CURIAM
    Fengying Yang petitions for review of a final order of removal. For the reasons
    discussed below, we will dismiss in part and deny in part the petition for review.
    I.
    Yang, a citizen of China, was served with a Notice to Appear charging her as
    removable under 
    8 U.S.C. § 1227
    (a)(1)(A) and alleging that she had entered the United
    States without a valid entry document. She conceded removability and applied for
    asylum, withholding of removal, and protection under the Convention Against Torture
    (“CAT”), claiming that she feared persecution upon her return to China as a result of her
    activities with the China Democracy Party (“CDP”).
    Yang testified before an immigration judge (“IJ”) in support of her applications.
    The IJ first found that Yang was unable to meet her burden of proving her identity with
    adequate, reliable evidence—she used another’s passport to gain entry to the United
    States, had unexplained difficulty providing accurate biographical testimony, and
    submitted an unauthenticated birth certificate. The IJ identified numerous other problems
    with Yang’s testimony, including her refusal to answer questions about why she left
    China when asked by her attorney 1 and her inability to recall her address or the name of
    the town in which she claimed to live for three years after her arrival in the United States.
    Additionally, although she testified that her fear of future persecution arose from Chinese
    officials having visited her parents and husband due to political activities in the United
    States, she omitted any mention of that visit from her application for asylum. In light of
    1
    In her application and amended application, Yang detailed two incidents prompting her
    to leave China—her sister’s death as a result of exposure to poisons at the pharmaceutical
    company where she worked, and mistreatment as a result of rejecting local officials’
    attempts at extortion. See AR 665-6671; 501-508.
    2
    these and many other inconsistencies in her testimony, the IJ found that Yang was not
    credible and denied relief on that basis.
    Yang appealed to the BIA, arguing that the IJ’s adverse credibility determination
    and other holdings were erroneous. The Board dismissed Yang’s appeal in June 2009.
    Yang moved the Board to reissue its decision in light of her prior counsel’s
    ineffectiveness, and the BIA granted her motion. Accordingly, Yang’s petition for
    review, filed within thirty days of the reissued opinion, is timely. 
    8 U.S.C. § 1252
    (b)(1).
    She raises three claims: 1) she provided sufficient evidence to prove her identity; 2) the
    adverse credibility finding was not supported by substantial evidence; and 3) she did not
    waive an appeal of the denial of withholding of removal under the CAT as that issue was
    raised before the BIA.
    II.
    We have jurisdiction to review a final order of removal pursuant to 
    8 U.S.C. § 1252
    (a)(1). See Abdulai v. Ashcroft, 
    239 F.3d 542
    , 548 (3d Cir. 2001). Prior to raising
    an issue for judicial review, a petitioner must exhaust all administrative remedies
    available as of right regarding that issue. 
    8 U.S.C. § 1252
    (d)(1); Sandie v. Att’y Gen.,
    
    562 F.3d 246
    , 250 n.1 (3d Cir. 2009). This is a jurisdictional requirement. See Hoxha v.
    Holder, 
    559 F.3d 157
    , 159 n.3 (3d Cir. 2009).
    This Court reviews the decision of the Board and, to the extent deferred to or
    incorporated therein, the decision of the immigration judge. Miah v. Ashcroft, 
    346 F.3d 434
    , 439 (3d Cir. 2003). We review factual findings, including any credibility
    3
    determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 
    407 F.3d 146
    , 152 (3d Cir. 2005). Under that standard, we must uphold the BIA’s decision unless
    the evidence not only supports a contrary conclusion, but compels it. See Abdille v.
    Ashcroft, 
    242 F.3d 477
    , 483-84 (3d Cir. 2001). The burden of establishing eligibility for
    asylum, withholding of removal, and relief under the CAT is on the applicant. Toure v.
    Att’y Gen., 
    443 F.3d 310
    , 317 (3d Cir. 2006) (citing 
    8 C.F.R. § 208.13
    (a)). 2
    III.
    A.
    As an initial matter, we must address the Government’s arguments regarding the
    extent of our jurisdiction over Yang’s claims. First, the government argues that Yang did
    not exhaust her claim that the BIA erred in holding that she waived her arguments
    regarding relief under the CAT. See 
    8 U.S.C. § 1252
    (d)(1). We disagree.
    The Government bases its argument on the very things Yang now attacks: the
    BIA’s determination that she did not appeal the denial of relief under the CAT and its
    2
    Because Yang filed her asylum application after the enactment of the REAL ID Act, the
    inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is
    based need not go to the heart of her claim. See Lin v. Att’y Gen., 
    543 F.3d 114
    , 119 n.5
    (3d Cir. 2008). Rather, the REAL ID Act permits credibility determinations to be based
    on observations of Yang’s demeanor, the plausibility of her story, and the consistency of
    her statements. See 
    8 U.S.C. § 1158
    (b)(1)(B)(iii); Gabuniya v. Att’y Gen., 
    463 F.3d 316
    ,
    322 n.7 (3d Cir. 2006). We have not applied the REAL ID Act standard in a precedential
    opinion. Here, because the inconsistencies identified by the IJ relate to the heart of
    Yang’s claims for relief, and would thus support an adverse credibility determination
    even under the pre-REAL ID Act standard, we need not consider whether 
    8 U.S.C. § 1158
    (b)(1)(B)(iii) is consistent with due process. See Wang v. Holder, 
    569 F.3d 531
    ,
    538 (5th Cir. 2009) (canvassing Circuit law on the provision).
    4
    concomitant holding that the issue was waived. In her brief on appeal to the BIA, Yang
    argued:
    The IJ erred in her finding that “there is nothing in the evidence to show
    that [Appellant] would be tortured or that government officials would
    acquiesce or turn a blind eye to her torture should she return. Mere
    imprisonment, although certainly unfortunate and not condoned by this
    Court, does not rise to the level of the stringent torture standard set out in
    the regulations . . .”
    Appeal Brief at 13 (quoting the Oral Decision of the Immigration Judge at 26) (emphasis
    and alteration in original). She went on to argue that that finding was not supported by
    substantial evidence, that the IJ failed to consider the State Department’s report in her
    plausibility analysis, and that the IJ made no specific finding as to whether other evidence
    in the record supported Yang’s claim. Although Yang incorrectly identified the issue as
    pertaining to her asylum claim, she explicitly attacked the finding that she would not be
    tortured upon her return to China; this was unambiguously relevant to the denial of her
    request for relief under the CAT. In fact, the quotation provided in Yang’s brief
    continued, “. . . and therefore I will deny her claim for withholding of removal under the
    Convention Against Torture as well.” Oral Decision of the Immigration Judge at 26
    (emphasis added). Yang’s argument on appeal was more than sufficient to place the BIA
    on notice that she intended to appeal the denial of relief under the CAT. Dan Hua Wu v.
    Att’y Gen., 
    571 F.3d 314
    , 317 (3d Cir. 2009) (“[s]o long as a[] . . . petitioner makes some
    effort, however insignificant, to place the [BIA] on notice of a straightforward issue
    being raised on appeal, a petitioner is deemed to have exhausted her administrative
    5
    remedies.”) (quoting Lin v. Att’y Gen., 
    543 F.3d 114
    , 121 (3d Cir. 2008)). Accordingly,
    we hold that Yang has adequately exhausted the CAT claim she presents in her petition.
    The Government next argues that we lack jurisdiction over four of the specific
    challenges Yang now raises, to wit: 1) her challenge to the findings that her testimony
    was “laborious” and that she was unresponsive at times; 2) her argument that the negative
    inferences drawn from Yang’s refusal to testify regarding her experiences prior to leaving
    China violated due process; 3) her allegation of a “fatal error” in the translation of the
    letter from Yang’s father; and 4) her challenge to the finding of omissions in her Form I-
    589 asylum application despite her inability to explain those omissions because of
    translation problems. On appeal to the BIA, Yang raised arguments regarding the IJ’s
    adverse credibility determination based upon her nervousness and various translation
    errors. Accordingly, we hold that her argument regarding the finding that her testimony
    was “laborious” and unresponsive is exhausted. Wu, 
    571 F.3d at 317
    . However her due
    process argument, her argument regarding the translation of her father’s letter, and her
    arguments regarding omissions in her asylum application were never raised before the
    Board. We will therefore dismiss them for lack of jurisdiction. Hoxha, 
    559 F.3d 159
     n.3.
    B.
    We now turn to the merits of Yang’s claims. After review of the record, we
    conclude that substantial evidence supports the finding that Yang did not testify credibly.
    Yang testified that she did not fear returning to China until she was informed that
    Chinese police visited her mother and specifically inquired as to her anti-government
    6
    activities in the United States. This incident was not, however, mentioned in her written
    application for relief. Yang explained that, although she was apparently unafraid to
    continue protesting, she was “afraid that the Chinese policemen would come to America
    to take me away” if she mentioned the incident in her application. AR 383. She also
    claimed that she didn’t feel it was necessary to mention the incident in her application.
    AR 389-90. The IJ and BIA rejected those explanations, and Yang has not demonstrated
    that the record compels a contrary result. Her argument that there were interpretation
    problems—that she “may have offered the testimony in response to questions that were
    not correctly interpreted”—is unpersuasive. 3 The omission of what she claims formed
    the basis of her fear of persecution from her asylum application is undoubtedly material
    to her claims and is more than sufficient to support the BIA’s adverse credibility finding.
    In light of that finding, we agree that she failed to demonstrate a reasonable probability
    that she will be persecuted upon return to China. We likewise discern no error in the
    Board’s concomitant holding that Yang did not meet her burden to demonstrate that she
    was entitled to relief. See Chukwu v. Att’y Gen., 
    484 F.3d 185
    , 188-89 (3d Cir. 2007);
    Toure, 
    443 F.3d 310
    , 317. As she was not entitled to relief, her remaining arguments
    regarding asylum and withholding of removal need not be addressed.
    3
    We note that in her filings before the BIA and in support of her petition for review,
    Yang has offered nothing by way of an alternate explanation, i.e., what question she may
    have thought she was answering when she informed the IJ that she was afraid Chinese
    police would come to America to take her away.
    7
    For the reasons outlined above, we hold that the BIA erred in holding that Yang
    waived her arguments regarding relief under the CAT. Remand, however, “is not
    required when it would be an idle and useless formality.” Li Hua Yuan v. Att’y Gen.,
    
    642 F.3d 420
    , 427 (3d Cir. 2011) (internal quotation marks and citation omitted). Here,
    Yang’s application for CAT relief was based upon the same testimony as her claims for
    asylum and withholding of removal; the adverse credibility finding was therefore
    likewise fatal to her CAT claim, and her appeal would have been dismissed regardless.
    See Yu v. Att’y Gen., 
    513 F.3d 346
    , 349 (3d Cir. 2008). Accordingly, the BIA’s error
    was harmless, and we need not remand the matter for further consideration. Yuan, 
    642 F.3d at 427
     (“[W]e will view an error as harmless and not necessitating a remand to the
    BIA when it is highly probable that the error did not affect the outcome of the case.”).
    IV.
    For the reasons we have given, we dismiss in part and deny the petition for
    review.@
    8