Fengying Yang v. Attorney General of the United States

NOT PRECEDENTIAL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 )
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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.
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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
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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).
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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
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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.
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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.@
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