Yong v. Atty Gen USA , 261 F. App'x 418 ( 2008 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1750
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    NOT PRECEDENTIAL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.
    2
    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
    3
    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,
    4
    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.
    5