Wang v. Holder , 428 F. App'x 85 ( 2011 )

10-658-ag
Wang v. Holder
BIA
Vomacka, IJ
A094 041 845
A094 041 846
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1st day of July, two thousand eleven.
PRESENT:
JOHN M. WALKER, JR.,
PIERRE N. LEVAL,
ROSEMARY S. POOLER,
Circuit Judges.
_______________________________________
MULAN WANG, FEI CHEN,
Petitioners,
v. 10-658-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent.
______________________________________
FOR PETITIONERS: Alan Michael Strauss, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; James E. Grimes, Senior
Litigation Counsel; Thankful T.
Vanderstar, Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED in part and DENIED in part.
Petitioners Mulan Wang and Fei Chen, wife and husband
and natives and citizens of China, seek review of a January
19, 2010, order of the BIA affirming the March 14, 2008,
decision of Immigration Judge (“IJ”) Alan A. Vomacka denying
their applications for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Mulan Wang, Fei Chen, Nos. A094 041 845/846 (B.I.A. Jan. 19,
2010), aff’g Nos. A094 041 845/846 (Immig. Ct. N.Y. City
Mar. 14, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA decision. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
2
As an initial matter, because the petitioners have not
challenged the agency’s findings that (1) Chen did not
establish past persecution, or (2) that they did not
establish their eligibility for CAT relief, these issues are
deemed waived. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
n.1, 545 n.7 (2d Cir. 2005). Accordingly, we address only
the denial of asylum and withholding of removal.
I. Pretermission of Wang’s Asylum Application
The petitioners argue that the agency erred in finding
that Wang did not demonstrate that she filed her asylum
application within one year of her entry into the United
States. We lack jurisdiction to review the agency’s
finding that an asylum application was untimely under
8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed
nor extraordinary circumstances excusing the untimeliness
under 8 U.S.C. § 1158(a)(2)(D). 8 U.S.C. § 1158(a)(3).
Although we retain jurisdiction to review constitutional
claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D), a
question of law is not implicated “when the petition for
review essentially disputes the correctness of the IJ’s
fact-finding or the wisdom of his exercise of discretion,”
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 328-29
(2d Cir. 2006).
3
Here, petitioners argue that the IJ erred as a matter
of law in holding that Wang was not credible because the IJ
based this conclusion on its observation that “on a number
of occasions the respondent dealt with the question by
stating a tentative answer and then asking the person
questioning her whether that was right.” The record reveals
that at one point during the questioning, Wang was asked,
“Can you tell me how you received this document here into
the United States?” In response to that question, Wang
answered: “It was sent over, sent to the United States,
right?” This appears to be the only time Wang gave any
testimony that could have been construed as a question
seeking confirmation of the correctness of her response.
Although an “unambiguous mischaracterization of the
record” may raise a question of law, Gui Yin Liu v. INS, 508
F.3d 716, 722 (2d Cir. 2007), the one isolated overstatement
in this case does not rise to that level. The record
reveals that the IJ correctly described Wang’s responses as
largely tentative. The record also indicates that Wang
changed her answers, or, as the IJ noted, was “led into
remembering” a number of important details that she
otherwise could not recall—including the year in which her
4
second son was born. Thus, the IJ’s description of the
record was not an unambiguous mischaracterization of its
content overall. Id. Further, unlike the
mischaracterization at issue in Gui Yin Liu v. INS, 475 F.3d
135 (2d Cir. 2007), which involved Liu’s record with the
Chinese police, the IJ’s overstatement in this case does not
involve a “central element” of the record. See id. at 138.
Rather, it was one of many considerations that factored into
the IJ’s adverse credibility finding. Accordingly, we are
without jurisdiction to review the finding that the asylum
application was untimely.
The petitioners’ alternative argument, that the IJ
erred by requiring corroboration without first identifying
the relevant documents and showing that they were reasonably
available to the petitioner, is misplaced. When an
applicant’s testimony has been called into question, the
agency may reasonably expect the applicant to provide
corroborative materials to rehabilitate the testimony. See
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
Contrary to petitioners’ claims, an IJ need not first
identify the particular pieces of evidence before relying on
a lack of corroboration to support an adverse credibility
5
finding. See Xiao Ji Chen, 471 F.3d at 341. Thus the
petitioners have not demonstrated any error of law in the
pretermission of Wang’s asylum application as untimely.
II. Withholding of Removal
The agency reasonably determined that the petitioners
did not establish past persecution or a likelihood of future
persecution.
A. Past Persecution
The agency found that Wang’s testimony that she had
suffered a forcible abortion and the forcible insertion of
an intrauterine device (“IUD”) was not credible as to the
involuntary nature of the abortion and IUD. The agency
relied on inconsistencies, which were not clarified by
Chen’s or other testimony, and the manner in which Wang
answered questions. Additionally, the agency found that the
petitioners did not present sufficient corroborating
evidence to rehabilitate Wang’s testimony. The petitioners
disagree with the adverse credibility determination, arguing
that the IJ did not consider Wang’s evidence that she had
been subjected to periodic IUD exams, including a report
from a gynecologist in the United States who stated that
Wang had a type of IUD which had never been used in the
United States. These arguments are unavailing.
6
A reasonable fact-finder would not be compelled to
conclude that the agency ignored any material evidence. See
Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008);
see also Xiao Ji Chen, 471 F.3d at 337 n.17. Indeed, the IJ
expressly considered similar evidence indicating that Wang
had received an IUD. Moreover, because the IJ’s adverse
credibility determination was not based on a finding that
Wang did not have an abortion or IUD, but rather that she
did not credibly establish that the abortion and IUD were
involuntary, the existence of the IUD was not material.
The agency also reasonably determined that Wang’s
testimony was not credible. As the IJ noted, the
petitioners had difficulty setting out the dates on which
events happened, supporting the IJ’s conclusion that Wang
was not testifying about her own experiences but repeating a
learned story. Indeed, Wang’s testimony regarding her date
of entry was contradicted by the testimony of other
witnesses, she gave inconsistent testimony regarding the
dates of her medical care, and she was unable to provide the
correct year of her son’s birth even after being provided an
opportunity to clarify. Such inconsistencies are sufficient
grounds for an adverse credibility determination. 8 U.S.C.
7
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008). Wang’s explanation that she was
confused does not compel the conclusion that she was
testifying truthfully. See Majidi v. Gonzales, 430 F.3d 77,
80 (2d Cir. 2005). Wang’s manner suggested that she was
unsure of her story, gave tentative answers to questions,
and changed her answer after guidance from the attorney,
also supports the adverse credibility finding. See id. at
81 n.1.
Contrary to the petitioners’ argument, the IJ’s
corroboration finding was not erroneous, as the IJ never
stated that such documents would have been necessary to meet
her burden of proof, only that without such evidence she had
not rehabilitated her otherwise incredible testimony. See
Biao Yang, 496 F.3d at 273. In addition, as the IJ found,
Wang’s medical records were based entirely on her own
statements and did not indicate whether the abortion was
involuntary, and thus were not sufficient to rehabilitate
her testimony. See Xiao Ji Chen, 471 F.3d at 342.
Ultimately, the IJ’s evaluation of Yang’s testimony and
demeanor provides substantial evidence in support of the
agency’s adverse credibility determination, and the IJ
8
reasonably found that Yang’s corroborative evidence did not
rehabilitate her questionable testimony. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Biao Yang, 496 F.3d at 273.
B. Future Persecution
Absent past persecution, the petitioners had to show
that it is more likely than not that they would be
persecuted in China. The petitioners argue that they
established a likelihood of future persecution in that they
face sterilization if they return to China because they now
have a second son, who was born since they entered the
United States. They contend that the family planning policy
is enforced against the parents of children born abroad,
arguing that this is confirmed by a letter from the Fujian
Province Population and Family Planning Commission. These
arguments are foreclosed by this Court’s decision in Jian
Hui Shao, 546 F.3d 138.
Because China’s family planning policy varies depending
on locality, the burden is on the aliens to establish that
they would personally suffer persecution on account of their
violation of the policy. Id. at 159-62. The agency
reasonably determined that evidence of general conditions in
China did not suffice to show that they faced future
9
persecution in their locality. See id. at 159-65. Because
the one document that petitioners rely on does not establish
that individuals with United States born children have been
or will be subjected to forcible sterilization, the agency
reasonably found that petitioners offered no individualized
evidence establishing a likelihood that they would be
persecuted. Id.
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
10