Wang v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

7-27-2006

Wang v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3752

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NOT PRECEDENTIAL

THE UNITED STATES COURT

OF APPEALS

FOR THE THIRD CIRCUIT

_________

NO. 05-3752

_________

TANG JIANG WANG,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

_________

PETITION FOR REVIEW OF A DECISION OF

THE BOARD OF IMMIGRATION APPEALS

Agency No. A95-460-143

_________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 19, 2006

BEFORE: McKEE and STAPLETON, Circuit Judges,

and McCLURE,* District Judge

*

Hon. James F. McClure, Jr., United States District Judge for the Middle

(Opinion Filed: July 27, 2006)

_________

OPINION OF THE COURT

_________

McCLURE, District Judge:

Petitioner Tang Jian Wang (“Wang”), a Chinese citizen, has filed the

pending Petition for Review of a Bureau of Immigration Appeals (“BIA”) decision

dismissing Wang’s appeal from the Immigration Judge’s (“IJ”) decision denying

Wang’s applications for asylum, withholding of removal, and relief under the

United Nations Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (“CAT”). The BIA found that the IJ did not

clearly err in determining that Wang was not credible, and furthermore found that

even if Wang were deemed to be credible, he was not entitled to relief.1

We will deny the petition.

I. Facts and Procedural History

As the parties are familiar with the facts as recounted by Wang, we only

briefly recite them here. Petitioner Tang Jian Wang is a 55 year-old Chinese

national who legally came to the United States on a nonimmigrant B-1 visa in

District of Pennsylvania, sitting by designation.

1

The IJ also found Wang to be ineligible for asylum, withholding of removal,

and relief under the CAT as a matter of law because he assisted in the persecution

of others on account of a protected ground. (See J.A. at 26-29.) The BIA did not

review this part of the IJ’s decision. (See J.A. at 6, n.1.)

2

April 2001. In his testimony before the IJ, Wang claimed as follows.

In China, Wang began his career as a police officer, and then became the

second-in-command of a temporary detention facility for prisoners. When eleven

Falun Gong practitioners were arrested, they were housed in Wang’s facility; one

of them was Wang’s friend. Wang ordered that the Falun Gong practitioners be

given better treatment than the other prisoners, and Wang released two of the Falun

Gong prisoners.

Wang was reprimanded by his superior officer for his preferential treatment

of the Falun Gong prisoners, and he was transferred to a different job, where his

pay was reduced. Some time later, Wang was approached by his Falun Gong

friend. At his friend’s request, Wang gave money for the Falun Gong movement

and made photocopies of Falun Gong materials using his office copy machine.

Thereafter, Wang was summoned to appear for an interview with the Public

Security Bureau. Wang learned from a friend that there was a case against him for

supporting Falun Gong and illegally printing propaganda material for Falun Gong.

Wang then fled China.

Wang entered the United States in April 2001 on a nonimmigrant B-1 visa.

He filed an application for asylum in April 2002, and the INS found Wang

ineligible for asylum based on a finding that he was not credible. (See Assessment

to Refer, J.A. at 153-54.) On March 28, 2003, the INS instituted removal

proceedings against Wang for remaining in the United States beyond July 22, 2001

without authorization. (See Notice to Appear, J.A. at 387.)

The Notice to Appear stated that removal proceedings would occur on

August 6, 2003. However, that date was changed to May 21, 2003, apparently

without notification to Wang, and Wang failed to appear for removal proceedings

on May 21, 2003. The IJ entered a final order of removal in Wang’s absence on

May 21, 2003. (See J.A. at 88.) On June 17, 2003, the IJ reopened the case (J.A.

at 367) and removal proceedings were conducted on January 3, 2005, with Wang

3

present and represented by counsel.

In a thirty-page opinion, the IJ found first that Wang was not credible. The

IJ arrived at that determination based on the following: (1) two inconsistent

affidavits executed by Wang, the first of which was submitted at his asylum

interview (J.A. at 340), the latter of which was made a part of the record before the

IJ and contained different dates regarding the timeframe of Wang’s treatment of

Falun Gong practitioners at the prison (J.A. at 276); (2) the IJ’s view that Wang’s

testimony regarding whether he practiced Falun Gong himself contradicted Wang’s

application for asylum; (3) Wang’s inconsistent testimony regarding his job duties

after being dismissed from his job at the prison; (4) inconsistencies between

Wang’s testimony that he was demoted after his dismissal from the prison and a

Chinese government document offered by Wang (J.A. at 319-20) stating that Wang

was promoted a few months after his favorable treatment of the Falun Gong

detainees; and (5) a discrepancy between Wang’s testimony that he made copies of

Falun Gong propaganda in March 2001, and a Chinese government document

offered by Wang stating that he made the copies in February 1999 (see J.A. at

323). The IJ found that “the credibility factors noted above are sufficient as a

matter of substantial evidence to sustain an adverse credibility finding with regard

to the core of the respondent’s claim.” (J.A. at 26.)

The IJ found second that, “[r]egardless of the credibility finding,” Wang

“assisted in the persecution of others and therefore is barred as a matter of law

from asylum, and withholding under Section 241(b)(3), and withholding under the

Convention Against Torture.” (J.A. at 26-29.) Separately, the IJ concluded that

Wang had not met his burden of proof with regard to the CAT, and denied Wang’s

application for voluntary departure. (J.A. at 29-30.)

Wang timely appealed to the BIA. The BIA dismissed the appeal. (J.A. at

4-6.) The BIA found that: (1) the IJ did not clearly err in his adverse credibility

determination; (2) even if Wang were deemed credible, he did not establish

4

eligibility for asylum, because he showed neither past persecution nor a well-

founded fear of future persecution; (3) because Wang failed to satisfy the lower

burden of proof required for asylum, he was ineligible for withholding of removal;

and (4) Wang did not establish that it was more likely than not that he would be

tortured if removed to China. The BIA did not address the IJ’s finding that Wang

was ineligible for asylum and withholding of removal because he assisted or

otherwise participated in the persecution of others on account of a protected

ground. (J.A. at 6, n.1.)

Wang timely filed this petition for review.

II. Jurisdiction and Standard of Review

We have jurisdiction to review final orders of removal pursuant to 8 U.S.C.

§ 1252(a).

Review of the agency decision denying Wang’s applications for asylum,

withholding of removal, and relief under the CAT is conducted under the

substantial evidence standard, which requires that administrative findings of fact be

upheld “unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

“Adverse credibility determinations are factual findings subject to

substantial evidence review.” Id. We will defer to and uphold an adverse

credibility determination if it is “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992). When evaluating an adverse credibility determination,

we must “ensure that it was appropriately based on inconsistent statements,

contradictory evidences, and inherently improbable testimony . . . in view of the

background evidence on country conditions.” Dia, 353 F.3d at 249 (citation and

quotations omitted).” “Generally, minor inconsistencies and minor admissions that

‘reveal nothing about an asylum applicant’s fear for his safety are not an adequate

5

basis for an adverse credibility finding.’” Gao v. Ashcroft, 299 F.3d 266, 272 (3d

Cir. 2002) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988)).

“[D]eference is not due where findings and conclusions are based on inferences or

presumptions that are not reasonably grounded in the record as a whole.”

Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998). Findings of adverse

credibility “must be based on inconsistencies and improbabilities that go to the

heart of the asylum claim.” Chen, 434 F.3d at 216 (quotations and citations

omitted).

III. Legal Standards for Asylum, Withholding of Removal, and

Relief under the CAT

Section 208(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1158(b), gives the Attorney General discretion to grant asylum to any alien who

demonstrates that he or she is a “refugee” within the meaning of section

101(a)(42)(A) of the INA, 8 U.S.C. § 1101(a)(42)(A). Chen v. Ashcroft, 376 F.3d

215, 222 (3d Cir. 2004). To qualify as a “refugee,” one must demonstrate that he

or she is “unable or unwilling to return to . . . that country [of nationality] 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)(A).

“The burden of proof is on the applicant for asylum to establish that he or

she is a refugee as defined in section 101(a)(42) of the [INA].” 8 C.F.R. §

208.13(a). “The testimony of the applicant, if credible, may be sufficient to sustain

the burden of proof without corroboration.” Id. “An alien’s credibility, by itself,

may satisfy his burden, or doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247

(3d Cir. 2003) (en banc).

“Unlike asylum, which is discretionary, the Attorney General must grant

withholding of removal if the alien demonstrates a ‘clear probability’ that, upon

return to his or her home country, his or her ‘life or freedom would be threatened’

6

on account of race, religion, nationality, membership in a particular social group,

or political opinion.” Chen, 376 F.3d at 223 (citing INS v. Stevic, 467 U.S. 407

(1984); Zubeda v. Ashcroft, 333, F.3d 463, 469-70 (3d Cir. 2003)). “An alien who

fails to establish that he or she has a well-founded fear of persecution, so as to be

eligible for a grant of asylum, necessarily will fail to establish the right to

withholding of removal.” Id.

In order to establish eligibility for withholding of removal under the CAT,

the “burden of proof is on the applicant . . . to establish that it is more likely than

not that he or she would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 1208.16(c)(2).

IV. Adverse Credibility, Asylum, and Withholding of Removal

Petitioner and respondent disagree about whether our review of the adverse

credibility determination is restricted to the decision rendered by the BIA, or if we

may also consider the IJ’s opinion.

Where the BIA never expressly “adopts” any portion of the IJ’s opinion, or

never announces that it is deferring to any of the IJ’s findings, we review only the

BIA’s decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001)

(Becker, C.J.). Alternatively, “[w]hen the BIA defers to an IJ, a reviewing court

must, as a matter of logic, review the IJ’s decision to assess whether the BIA’s

decision to defer was appropriate.” Id.

Here, the BIA both deferred to the IJ’s adverse credibility determination and

“discussed some, but not all, of the underlying bases for the IJ’s adverse credibility

determination.” Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We

accordingly review the IJ’s decision and the BIA’s decision together. Id.; see also

Fiadjoe v. Att’y Gen., 411 F.3d 135, 152-53 (3d Cir. 2005).

The IJ found that Wang was an incredible witness. The BIA agreed with the

IJ that Wang did not testify in a credible manner. The BIA cited to those portions

of the IJ’s decision detailing numerous reasons for the IJ’s adverse credibility

7

finding. The BIA also discussed one inconsistency in Wang’s evidence: an

inconsistency between Wang’s testimony and the documentary evidence

concerning Wang’s use of an office machine to copy Falun Gong propaganda.

Wang testified that he made copies for Falun Gong in March 2001; Wang’s

dismissal document indicated that Wang made the copies in February 1999. (J.A.

at 5.) The BIA found Wang’s attempts to explain this inconsistency unpersuasive.

After a careful review of the entire record, we find that we must uphold the

agency’s determination that Wang did not testify in a credible manner, as we are

not compelled to conclude to the contrary. See 8 U.S.C. § 1252(b)(4)(B); Chen,

376 F.3d at 222. The bases for the adverse credibility determination, discussed in

part I of this opinion, are “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Elias-Zacarias, 502 U.S. at 481.2

Because Wang’s testimony was not credited, he was unable to sustain his

burden of proving refugee status under section 101(a)(42) of the INA in order to

qualify for asylum, and was likewise unable to satisfy the clear probability

standard of eligibility required for withholding of removal. See Chen, 376 F.3d at

223. On the basis of this adverse credibility ruling, the IJ found Wang ineligible

for asylum and withholding of removal. (See J.A. at 28.) The BIA did not disturb

the IJ’s finding, and we find the adverse credibility determination to be supported

by substantial evidence.

Because we find that the agency decision regarding credibility is supported

by substantial evidence, we find it unnecessary to review the BIA’s alternative

reasoning that even if Wang were deemed credible, he would be ineligible for

2

Among other factors on which the agency reasonably relied, the

discrepancy regarding whether Wang was promoted or demoted is probative of

whether Wang was persecuted by his government employer.

8

asylum and withholding of removal.

V. Withholding Under the Convention Against Torture

We will sustain the BIA’s determination that Wang is ineligible for

withholding of removal under the CAT if substantial evidence in the record

supports the decision. Wang v. Ashcroft, 368 F.3d 347, 350 (3d Cir. 2004). We

have held that “an alien’s credibility, by itself, may satisfy his burden or doom his

claim as to both withholding of removal and protection under the Convention

[Against Torture].” Muhanna v. Gonzales, 399 F.3d 582, 589 (3d Cir. 2005)

(internal quotations and citation omitted).

The BIA found that Wang had not proved it more likely than not that he

would be tortured if removed to China, and cited Muhanna. We have already

determined that the agency’s adverse credibility finding is supported by substantial

evidence. Accordingly, we conclude that the BIA decision that Wang has not

proven eligibility for withholding of removal under the CAT is supported by

substantial evidence.

VI. Wang’s Due Process Argument

Wang also argues that he was denied due process because the BIA failed to

consider and address his arguments on appeal.

Aliens facing removal are entitled to due process. Abdulai, 239 F.3d at 549.

“The fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Id. (quoting Mathews v. Eldridge,

424 U.S. 319, 333 (1976)). “In adjudicative contexts such as this one, due process

requires three things. An alien: (1) is entitled to factfinding based on a record

produced before the decisionmaker and disclosed to him or her; (2) must be

allowed to make arguments on his or her own behalf; and (3) has the right to an

individualized determination of his or her interests.” Id. (internal citations and

quotations omitted). Because Wang does not argue that the BIA’s decision was

based on evidence that was kept secret from him, or that he was prevented from

9

making his case to the BIA or the IJ, the only due process right potentially

implicated is the third one–the right to an “individualized determination.” See id.

The decision of the BIA in this case constitutes an individualized

determination. The question for due process purposes is not whether the BIA

reached the correct decision; rather, it is simply whether the Board made an

individualized determination of Wang’s interests, and its opinion contains

sufficient indicia that it did so. See id. at 550. The three-page opinion

demonstrates that the BIA was aware that, inter alia, Wang was a Chinese citizen

seeking asylum on the basis of his sympathy for the Falun Gong movement, that

Wang had suffered adverse employment actions in China due to his aid of Falun

Gong members, and that the IJ found Wang to be an incredible witness. This is

sufficient. Because the BIA’s opinion evidences its consideration of the

individualized circumstances of Wang’s application, we find no due process

violation here.

VII. Conclusion

Based on the foregoing, the Petition for Review of the decision of the BIA

dismissing Wang’s appeal from the decision of the IJ denying Wang asylum under

8 U.S.C. § 1158, and denying his application for withholding of removal under 8

U.S.C. § 1231(b)(3) and the Convention Against Torture will be denied.

10