Yue Xiang Yong v. Attorney General

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-14-2008
Yong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5051
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-5051
___________
YUE XIANG YONG,
a/k/a Yue Xiang Yuan,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A78-015-950)
Immigration Judge: Rosalind Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 2, 2008
Before: AMBRO, FUENTES and FISHER, Circuit Judges
(Opinion filed: January 14, 2008)
___________
OPINION
___________
PER CURIAM
Yue Xiang Yong petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the
reasons that follow, we will deny her petition.
Yong, a native and citizen of China, arrived in the United States in July 2002
without proper documentation. She was placed in removal proceedings and applied for
asylum, withholding of removal, voluntary departure, and relief under the Convention
Against Torture. Her petition was based on the claim that she had been forced to have an
abortion in July 1994, after becoming pregnant with a second child in violation of China’s
family planning policy.
The IJ denied relief, concluding, after a hearing, that Yong’s testimony was “not
believable or consistent or sufficiently detailed in light of general conditions in the home
country to provide a plausible and coherent account of the basis for the alleged fear.”
Yong appealed to the BIA, which dismissed the appeal, holding that it did not find the
IJ’s evaluation of her testimony to be clearly erroneous. Yong, proceeding pro se, timely
filed a petition for review.1
We have jurisdiction over this petition for review under 8 U.S.C. § 1252(b). To be
granted asylum as a refugee, an applicant must establish that she is unable to return to her
homeland “because of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42). The IJ denied relief because she found that Yong was not
1
Yong initially filed her petition for review in the United States Court of Appeals for
the Second Circuit, which transferred the petition to this Court. See 8 U.S.C.
§ 1252(b)(2); 28 U.S.C. § 1631.
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credible. That determination is a factual finding subject to review under the substantial
evidence standard. In other words, “[w]e will defer to and uphold the IJ’s adverse
credibility determinations if they are ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole,’ but such findings must be based on
inconsistencies and improbabilities that ‘go to the heart of the asylum claim.’” Chen v.
Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992)).
As recounted by the IJ, Yong’s testimony as to facts material to her asylum
application changed over time. In her asylum affidavit and during her credible fear
interview, she claimed that she was four months pregnant in March 1994, when her
pregnancy was discovered during a required check-up. By contrast, during the asylum
hearing, she testified that she was one month pregnant at that time. On direct
examination, Yong testified that she was informed on March 13, 1994, the day of her
check-up, that she should report that afternoon for an abortion. She testified that, upon
receipt of that notice, she became worried so she ran away to her mother’s village, and
that four months later, on July 8, 1994, officials arrived at the home of her mother-in-law
to take her for the abortion. On cross-examination, Yong testified that after going to her
check-up in March, she received a notice in May informing her that she had to undergo an
abortion, which was then performed in July. While Yong twice testified that she received
the first notice requiring her to go for a check-up in March 1994, the notice which she
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identified and which was admitted into evidence was dated April 13, 1994, and stated that
she was to report for a medical examination by April 20, 1994. Additionally, the abortion
notice that she submitted in support of her claim was dated May 26, 1994, and states that
she was to report to an abortion clinic within ten days of receiving the notice.
The IJ also explained that while Yong claimed during her credible fear interview
that she had two children, she testified at the asylum hearing that she had only one. Yong
claimed that she had told the Immigration Officers at the airport that she had two children
because she was scared that they would send her back to China if she revealed that she
only had one child, and because her husband had reported that he had two children during
his asylum hearing and she wanted their stories to be consistent. The IJ also noted that in
her credible fear interview Yong testified that she had been arrested and detained and that
her house had been torn down as punishment and her husband had been injured in the
process. However, at the asylum hearing, Yong offered no such testimony.
When questioned about the basis for her claim of persecution, Yong testified that
she feared that she would be arrested upon her return to China to prevent her from having
any more children. The IJ concluded that there was no basis in the record for her belief,
particularly in light of the fact that there was no indication that her husband had suffered
such consequences upon his return to China, nor did China’s family planning policy bar a
woman in Yong’s circumstances from having another child.
Based on the foregoing, the IJ held that Yong was not credible and, accordingly,
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that she had failed to establish that she had suffered past persecution or was likely to
suffer future persecution upon return to China on account of any of the enumerated
grounds. See 8 U.S.C. § 1101(a)(42). For the same reasons, the IJ concluded that Yong
had failed to establish eligibility for withholding of removal, see 8 U.S.C. § 1231(b)(3),
and that she had not demonstrated a likelihood of torture if removed to China. See 8
C.F.R. § 208.16(c)(2). The IJ’s adverse credibility finding was based on specific reasons
supported by the record, and Yong has not shown that the record compels a finding that
she was credible and entitled to relief. See Zheng v. Gonzales, 417 F.3d 379, 383 (3d Cir.
2005). Accordingly, we will deny the petition for review.
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