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

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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.
2

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). 
3

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). 
4

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
5

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
6

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.
7

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.
8

§ 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
9

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
10

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