Yang v. Atty Gen USA , 123 F. App'x 92 ( 2005 )


Menu:
  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-4-2005
    Yang v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 03-4549
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
    Recommended Citation
    "Yang v. Atty Gen USA" (2005). 2005 Decisions. Paper 1476.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1476
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 03-4549
    XINWANG YANG,
    Petitioner
    v.
    *ATTORNEY GENERAL
    OF THE UNITED STATES,
    Respondent
    (*Amended Pursuant to F.R.A.P. 43(c) )
    On Appeal from an Order entered before
    The Board of Immigration Appeals
    (No. A 72-993-689)
    Submitted Under Third Circuit LAR 34.1(a)
    February 15, 2005
    Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges
    (Filed March 4, 2005)
    OPINION
    AMBRO, Circuit Judge
    Xinwang Yang, a native and citizen of China, seeks review of a final order of
    removal issued by the Board of Immigration Appeals (“BIA”). The BIA’s decision
    affirmed an immigration judge’s (“IJ”) denial of Yang’s application for asylum and
    withholding of removal.1 Because Yang was placed in deportation proceedings before
    April 1, 1997,2 and the BIA issued the final order of deportation after October 30, 1996,
    our jurisdiction arises under 8 U.S.C. § 1105a, as amended by the transitional rules for
    judicial review in § 309(c)(4) of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 (Sept.
    30, 1996).
    Yang raises two issues for review: (1) whether substantial evidence supports the
    BIA’s affirmance of the IJ’s adverse credibility finding against him; and (2) whether he
    may present a claim of ineffective assistance of counsel without complying with the
    requirements of In re Lozada, 19 I. & N. Dec. 637 (BIA 1988). Because we write
    exclusively for the benefit of the parties who are well acquainted with the facts and
    1
    Yang also applied for relief under the Convention Against Torture (United
    Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
    or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United States by the
    Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
    Stat. 2681-761 (codified at 8 U.S.C. § 1231)). However, he has not raised before us the
    denial of relief under the Convention Against Torture.
    2
    Yang was placed in deportation proceedings on April 25, 1995, when an Order to
    Show Cause was issued against him charging his deportability.
    2
    procedural posture of this case, we recount only those matters relevant to the issues
    before us.
    Section 208(b) of the INA, 8 U.S.C. § 1158(b), confers on the Attorney General
    the discretion to grant asylum to an alien who is a “refugee.” An individual qualifies as a
    refugee if he or she is “unable or unwilling” to return to his or her country “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.” INA § 101(a)(42)(A), 8
    U.S.C. § 1101(a)(42)(A).
    An applicant bears the burden of proving eligibility for asylum based on specific
    facts and credible testimony. 8 C.F.R. § 208.13(a); Abdille v. Ashcroft, 
    242 F.3d 477
    , 482
    (3d Cir. 2001). In order to demonstrate a well-founded fear of persecution, an applicant
    must satisfy three requirements: (1) he or she has a fear of persecution in his or her native
    country; (2) there is a reasonable possibility that he or she will be persecuted upon return
    to that country; and (3) the applicant is unwilling to return to that country as a result of his
    or her fear. 8 C.F.R. § 208.13(b)(2)(i). An alien who establishes past persecution is
    presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1).
    The eligibility threshold for withholding of removal is higher than for asylum. The
    Attorney General must determine that repatriation would jeopardize the alien’s life or
    freedom on account of one of the protected grounds. INA § 241(b)(3), 8 U.S.C.
    § 1231(b)(3). The applicant must therefore demonstrate a clear probability of
    3
    persecution. Senathirajah v. INS, 
    157 F.3d 210
    , 215 (3d Cir. 1998). Given this higher
    standard, an applicant who does not qualify for asylum also will not qualify for
    withholding of removal.
    We uphold factual findings in an immigration matter if they are “‘supported by
    reasonable, substantial, and probative evidence on the record considered as a whole.’”
    INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We
    reverse a determination of the BIA/IJ if “the evidence not only supports [a contrary]
    conclusion, but compels it.” 
    Id. at 481
    n.1 (emphasis omitted). Adverse credibility
    determinations are reviewed as well for substantial evidence, Balasubramanrim v. INS,
    
    143 F.3d 157
    , 161 (3d Cir. 1998), and we will uphold those findings unless “any
    reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
    § 1252(b)(4)(B).
    Yang’s first claim is that there was not substantial evidence to support the BIA’s
    affirmance of the IJ’s finding of adverse credibility. Yang was denied asylum and
    withholding of removal based on the IJ’s conclusion that he did not present credible
    evidence to establish a well-founded fear of persecution. The IJ based his adverse
    credibility finding on several factors: factual inconsistencies among the asylum
    applications, differences between Yang’s testimony and the applications, Yang’s
    admission of lying in court, and his admission of obtaining fraudulent documents.
    Yang submitted four asylum applications over the course of six years. The first
    4
    three applications differed substantially from the fourth in that they said his wife was
    sterilized in March of 1995 and that she and Yang did not have a second child. In his
    fourth application, Yang stated that his second child was born in October of 1995 and his
    wife was sterilized one month later. The dates of his marriage 3 and his daughter’s
    birthday also varied among the applications. Yang’s explanation of these inconsistencies
    is that the mistakes were made during his brief initial phone call with his lawyer and that,
    when he discovered them, his lawyer told him the mistakes could not be changed.
    In an affidavit accompanying Yang’s fourth application, he said that he saw family
    planning officials when they visited his house. Initially in his testimony, he claimed that
    he did not see the officials. When presented with the affidavit, Yang maintained that he
    did not see the officials. However, at the end of his testimony, Yang admitted that he did
    see the officials on one of the several occasions they visited his house.
    During a hearing in April 2000, Yang testified that he read the applications before
    he signed them and that all of the information was true, when in fact he knew it was not.
    Before the IJ, Yang admitted that he lied during his testimony but claimed that his lawyer
    coached him to lie and stick to the false application.
    Yang also admitted to the IJ that he obtained fraudulent documents to support his
    application but never used them. He explained this by saying he needed dates changed on
    3
    The IJ noted that Yang’s applications and testimony also contradict a statement
    Yang made to an immigration officer when apprehended in 1995 that he was single.
    5
    his documents to reflect the incorrect dates in the applications.
    The IJ was not persuaded by Yang’s explanations of the inconsistencies among his
    asylum applications. The implausibility of Yang’s testimony and his admission of lying
    and obtaining fraudulent documents weighed heavily in the IJ’s decision that Yang was
    not credible. The IJ also found that the documents Yang submitted were likely not
    genuine for the same reasons that led him to find that Yang was not credible (and, in
    addition, the documents were not certified). Put simply, substantial evidence supports the
    adverse credibility finding against Yang.
    Yang’s second claim is that he should have been allowed to present a claim of
    ineffective assistance of counsel without complying with the requirements of In re
    Lozada, 19 I. & N. Dec. 637 (BIA 1988). Under Lozada, an alien must provide the
    following three items before s/he may bring a claim for ineffective assistance of counsel:
    (1) an affidavit by the alien setting forth the relevant facts, including the agreement with
    counsel on the actions that would be taken and the representations to the alien with regard
    to those actions; (2) evidence that counsel was informed of the allegations of ineffective
    assistance and allowed an opportunity to respond; and (3) if a violation of “ethical or
    legal responsibilities” is claimed, an indication that a complaint has been lodged with the
    appropriate disciplinary authorities, or an explanation for why a complaint has not been
    filed. Lozada, 19 I. & N. Dec. at 639. In Lu v. Ashcroft, we found these three
    requirements to be a reasonable exercise of the Board’s discretion. 
    259 F.3d 127
    , 132 (3d
    6
    Cir. 2001).
    Yang concedes that he has not complied with any of Lozada’s three requirements.
    Furthermore, he cites no precedent to support excusing him from complying. In this
    context, the only plausible action we can take is to reject Yang’s argument.
    * * * * *
    Because substantial evidence supports the Board’s affirmance of the IJ’s finding of
    adverse credibility and because Yang did not comply with Lozada, we deny his petition
    for review.
    7