Huibo Wang v. Holder

FILED
NOT FOR PUBLICATION APR 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUIBO WANG, No. 07-71711
Petitioner, Agency No. A095-569-340
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 16, 2011
San Francisco, California
Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.
Petitioner Huibo Wang, a native and citizen of the People’s Republic of
China, seeks review of a decision by the Board of Immigration Appeals (BIA)
dated February 18, 2005, that reversed the Immigration Judge’s (IJ) grant of
Wang’s application for withholding of removal and relief under the Convention
Against Torture (CAT). Petitioner also seeks review of a subsequent decision by
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the BIA dated April 3, 2007, that upheld the IJ’s order of removal and denied an
application to introduce additional evidence. Because the parties are familiar with
the factual and procedural history of this case, we repeat only those facts necessary
to resolve the issues raised on appeal. We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1). We deny Wang’s petition for review.
“[U]nless the [BIA] qualifies or limits the remand for a specific purpose, the
remand is effective for the stated purpose and for consideration of any and all
matters which the [IJ] deems appropriate in the exercise of his administrative
discretion or which are brought to his attention in compliance with the appropriate
regulations.” Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir. 2010) (quoting
Matter of Patel, 16 I. & N. Dec. 600, 601 (B.I.A. 1978)). Because the BIA limited
the scope of the remand hearing to issuing an order of removal, the IJ properly
denied Wang’s motion to submit additional evidence. See Molina-Camacho v.
Ashcroft, 393 F.3d 937, 940–42 (9th Cir. 2004), overruled by Lolong v. Gonzales,
484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). The BIA’s specific cite to Molina-
Camacho at the end of its decision indicated that the IJ’s discretion was limited to
the ministerial task of issuing the removal order. The IJ understood this and
proceeded accordingly. To the extent there was any doubt about the BIA’s intent,
the Board’s 2007 decision laid the question to rest.
2
This decision to limit the remand hearing also did not violate any of
Petitioner’s due process rights. Due process requires that a petitioner be given a
“full and fair hearing.” Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.
1999), superseded by statute as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165 (2d Cir. 2008) (describing effects of the REAL ID Act). “This court has
found prejudice where an alien’s rights are violated ‘in a manner so as potentially
to affect the outcome of the proceedings.’” Id. (citing United States v.
Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986)). Petitioner was afforded a
hearing before the IJ in 2003. As the BIA stated, none of the additional evidence
Petitioner sought to introduce at later hearings cast doubt on the 2003 finding that
Petitioner’s adherence to Falun Gong could not be substantiated.
Finally, we are not compelled to reverse the BIA’s decision to deny
Petitioner withholding of removal and relief under the CAT. Because Petitioner
did not appeal the IJ’s adverse credibility determination, which went to the heart of
the petition and formed the basis of the decisions below, we must accept that he
was not credible about his Falun Gong practice. See 8 U.S.C. § 1252(d)(1) (“A
court may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right[.]”); Guo v. Ashcroft, 361
F.3d 1194, 1199 & n.1 (9th Cir. 2004). Because Petitioner’s withholding of
3
removal claim was supported by the same statements and factual assertions deemed
not credible in his asylum application, and the remaining evidence in the record
does not alter that credibility determination, Wang’s petition is denied. See Farah
v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).
PETITION DENIED.
4