Wen Dai v. Eric Holder, Jr. ( 2010 )

Case: 09-60550 Document: 00511115778 Page: 1 Date Filed: 05/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 19, 2010
No. 09-60550
Summary Calendar Lyle W. Cayce
Clerk
WEN LONG DAI,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 057 007
Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Wen Long Dai, a citizen of the People’s Republic of China, applied for
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). His application was denied based on adverse credibility findings
made by the Immigration Judge (IJ), which were upheld by the Board of
Immigration Appeals (BIA) when it dismissed Dai’s administrative appeal.
Dai contends that the credibility findings of the IJ and BIA were
unsupported by the record. He argues that he fully explained the apparent
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-60550 Document: 00511115778 Page: 2 Date Filed: 05/19/2010
No. 09-60550
discrepancy concerning the signing of the sterilization document he claims to
have received, which was dated while he was in Europe; that the finding that his
wife’s abortion was not coerced was not supported by the record; and that the IJ
and BIA erred by basing a credibility finding as to when he was fired on Dai’s
failure to file a complete asylum application. Dai makes no arguments as to his
eligibility for relief based on the facts as he sees them; rather, he states merely
that the “application for asylum [and] withholding of removal should be granted”
because the credibility determinations were incorrect.
We review an immigration court’s rulings of law de novo and its findings
of fact to determine if they are supported by substantial evidence in the record.
Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Among the findings of fact
that this court reviews for substantial evidence is an immigration court’s
conclusion that an alien is not eligible for asylum, withholding of removal, or
relief under the CAT. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Pursuant to the REAL ID Act of 2005, “an IJ may rely on any
inconsistency or omission in making an adverse credibility determination as long
as the ‘totality of the circumstances’ establishes that an asylum applicant is not
credible.” Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (emphasis in
original) (citation omitted). We will defer “to an IJ’s credibility determination
unless, from the totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.” Id. at 538 (internal
quotation marks and citation omitted).
Dai’s inconsistent and changing accounts about when he signed the
sterilization notice and when he received his termination letter were such that
we cannot say that no reasonable factfinder would have found his testimony
noncredible. See id. The hospital record for Dai’s wife suggested that her
abortion was performed for medical reasons and not as the result of China’s
population control policies. We cannot say that no reasonable factfinder would
have found Dai’s testimony to the contrary noncredible. See id.
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Case: 09-60550 Document: 00511115778 Page: 3 Date Filed: 05/19/2010
No. 09-60550
All of Dai’s claims were based on his alleged resistance to China’s
population control policies. Because the credibility determinations of the IJ and
BIA withstand our review, the decision to deny Dai relief is supported by
substantial evidence. See Zhang, 432 F.3d at 344.
PETITION DENIED.
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