Ze Cong Wang vs U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13335 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 18, 2011
________________________ JOHN LEY
CLERK
Agency No. A096-736-277
ZE CONG WANG,
llllllllllllllllllll Petitioner,
versus
U. S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 18, 2011)
Before BARKETT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Ze Cong Wang, a native and citizen of China proceeding pro se, seeks
review of the Board of Immigration Appeals’ (“BIA”) final order denying his
application for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”), and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(“CAT”).
Wang’s claims are based on his assertion that Chinese authorities beat him
and terminated his government employment after he physically resisted the forced
termination of his wife’s pregnancy. The Immigration Judge (“IJ”) denied Wang’s
asylum claim because it was untimely, and denied the remaining claims after
concluding that Wang lacked credibility. Wang appealed to the BIA, and
separately filed a motion to remand the case to the IJ for consideration of a claim
of ineffective assistance of counsel. In a single final order, the BIA denied Wang’s
claims for relief and his motion to remand.
Wang now petitions this Court for review. He raises four issues, which we
address in turn.1
I.
First, Wang argues that the BIA erred in holding that ineffective assistance
of counsel does not excuse his untimely asylum application. With respect to
1
Because Wang petitions pro se, we liberally construe his petition for review. See Albra
v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam).
2
whether an application is timely, “[n]o court shall have jurisdiction to review any
determination” in this respect. 8 U.S.C. § 1158(a)(3). We have held that this
provision deprives us of jurisdiction to determine “whether an alien filed within
one year or established extraordinary circumstances to excuse an untimely filing.”
Sanchez Jiminez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).
Here, the BIA determined that Wang had not filed his asylum application
within a year of his entry into the United States, and that he did not qualify for any
of the exceptions to the timeliness requirement. Our precedent thus forecloses our
consideration of this issue on appeal. Sanchez Jimenez, 492 F.3d at 1231.
Accordingly, we lack jurisdiction to review the BIA’s determination, and dismiss
the petition with respect to Wang’s asylum claim.
II.
Second, Wang argues that the BIA’s adverse credibility determination was
not supported by substantial evidence. Specifically, he contends that the BIA erred
in concluding that an earlier application for adjusted status containing his name and
personal information contradicted his testimony that he had not before initiated
immigration proceedings. To this end, Wang asserts that someone forged the
earlier application, using his name without his permission. He asserts further
3
that the BIA placed undue emphasis on his inability to explain the application at
his removal hearing.
We review the BIA’s decision as the final judgment, unless the BIA has
expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th
Cir. 2007). Here, the BIA did not expressly adopt the IJ’s decision, and, therefore,
we review only the BIA’s decision. See id.The BIA’s credibility determinations are factual findings that we review
under the substantial evidence test. See id. Under this test, we must affirm the
BIA’s decision if it is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001) (quotation marks omitted). “To reverse a factual
finding by the BIA, [we] must find not only that the evidence supports a contrary
conclusion, but that it compels one.” Farquharson v. U.S. Att’y Gen., 246 F.3d
1317, 1320 (11th Cir. 2001). Moreover, the fact that an applicant provides
“tenable” explanations concerning the implausible aspects of his claim does not
compel a finding that the credibility determination was not supported by
substantial evidence, particularly where there is a relative lack of corroborating
evidence. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006) (per
curiam).
4
We affirm the BIA’s adverse credibility determination. The numerous
inconsistencies between Wang’s testimony and the documentary evidence in the
record substantially support the BIA’s determination. Most tellingly, Wang
testified that he was not married to a woman in the United States, despite contrary
evidence including a New York marriage certificate and an application for adjusted
status based on such marriage. And, while Wang claims that these documents are
fraudulent, his uncorroborated allegations of forgery do not compel us to find that
the BIA’s credibility determination was not supported by substantial evidence.
Chen, 463 F.3d at 1233; Farquharson, 246 F.3d at 1320. As such, we must affirm.
III.
Third, Wang argues that substantial evidence does not support the BIA’s
denial of withholding of removal and CAT relief. At the outset, he contends that
he is entitled to a presumption of past persecution under 8 U.S.C.
§ 1101(a)(42)(B). He then argues in the alternative that he established both past
persecution and a well-founded fear of future persecution based on his opposition
to China’s one-child policy, and that he established that it is more likely than not
that the Chinese police would torture him if he were removed.
Persecution under the INA is “an extreme concept.” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per curiam). Thus, we have held that
5
a single detention and beating did not constitute persecution because the applicant
suffered only minor injuries, in the form of bruising. Djonda v. U.S. Att’y Gen.,
514 F.3d 1168, 1174 (11th Cir. 2008). Regarding resistance to population control
programs, Congress has prescribed that:
[A] person who has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted for failure or
refusal to undergo such a procedure or for other resistance to a coercive
population control program, shall be deemed to have been persecuted on
account of political opinion.
8 U.S.C. § 1101(a)(42)(B). We in turn have held that the spouses of women who
underwent forced procedures are not entitled to a presumption of persecution under
this provision. Yu v. U.S. Atty. Gen., 568 F.3d 1328, 1332 (11th Cir. 2009) (per
curiam) (deferring to the BIA’s interpretation). Instead, these petitioners must
establish that they suffered “actual persecution” as a result of their resistance to a
procedure. Id. at 1333.
Moreover, in order to establish eligibility for withholding of removal, an
applicant must show that his “life or freedom would be threatened in that country
because of [his] race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Similarly, to establish eligibility
for CAT relief, an applicant must show that it is more likely than not that he will be
tortured by, or with the acquiescence of, government officials if returned to the
6
designated country of removal. 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1).
Upon a thorough review of our precedent and the proceedings below, we
affirm the BIA’s conclusion that Wang failed to establish a well-founded fear of
future persecution. Even if we accept that Wang was beaten on account of his
political opinion, he continued to live in China for the next twelve years, during
which time he suffered no further harm at the hands of Chinese authorities.2 This
prolonged period of peaceful residence constitutes substantial evidence to support
the BIA’s conclusions that Wang was not likely to be persecuted if forced to return
to China. See Sepulveda, 401 F.3d at 1232–33; 8 C.F.R. § 1208.16(c).3
Accordingly, the BIA did not abuse its discretion in concluding that Wang could
safely return to China.
IV.
Finally, Wang asserts that the BIA denied him due process by failing to
render a decision on his motion to remand for ineffective assistance of counsel.
2
Wang asserts that he suffered economic persecution because he was fired from his
government job, but we agree with the BIA that his ability to find other sufficient work rendered
him unable to make the necessary showing that he faced “a threat to [his] life or freedom.” In re
Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), rev’d in part on other grounds, In re Mogharrabi,
19 I. & N. Dec. 439 (BIA 1987). As such, the BIA did not abuse its discretion in denying relief
on this ground.
3
Wang’s claim that he is wanted for questioning regarding events stemming from the
protests against his neighborhood’s condemnation similarly does not suffice to show persecution,
because that investigation is not based on a statutorily protected ground. See Lin v. U.S. Att’y
Gen., 555 F.3d 1310, 1316 (11th Cir. 2009) (quotation marks omitted).
7
We disagree.
We review the BIA’s denial of a motion to remand for an abuse of
discretion. See Al Najjar, 257 F.3d at 1302. We have held that the BIA does not
abuse its discretion when it filters ineffective-assistance claims through the
procedural requirements established in In re Lozada, 19 I. & N. Dec. 637, 639
(BIA 1988), which provide that an alien must: (1) support his motion with an
affidavit that includes a statement setting forth in detail the agreement that was
entered into with former counsel and the representations counsel did or did not
make to the alien in this regard; (2) show that his former counsel was informed of
the allegations of ineffective assistance and allowed an opportunity to respond; and
(3) indicate in the motion whether a complaint was filed with appropriate
disciplinary authorities regarding the representation, and if not, why not. See
Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1223 (11th Cir. 2003) (per curiam).
The BIA treated Wang’s motion to remand as part of the appeal, and denied
the motion after finding that he failed to comply with the Lozada requirements and
also that he failed to substantiate his claim. The BIA did not abuse its discretion in
so concluding. Wang argues that two individuals, one a lawyer and one a non-
lawyer “immigration consultant,” ineffectively counseled him during his asylum
procedures. Regarding his complaint against the lawyer, Wang has not complied
8
with the procedures set forth in Lozada, and therefore the BIA’s denial was not an
abuse of discretion. Gbaya, 343 F.3d at 1223. As to the non-lawyer, in light of its
adverse credibility determination, the BIA did not abuse its discretion in rejecting
Wang’s uncorroborated explanation that non-attorney forged Wang’s name on
certain documents. Chen, 463 F.3d at 1233; Farquharson, 246 F.3d at 1320.
Accordingly, we deny Wang’s petition in this respect.
V.
For the foregoing reasons, we dismiss petitioner’s motion in part and deny
petitioner’s motion in part.
PETITION DENIED.
9