2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-2008

Yu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2181

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-2181

___________

XIN KAI YU,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA No. A76-019-863)

(U.S. Immigration Judge: Honorable R. K. Malloy)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 27, 2008

Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.

(Filed: September 3, 2008)

___________

OPINION OF THE COURT

___________

PER CURIAM.

Xin Kai Yu petitions for review of an order by the Board of Immigration Appeals

(“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the

following reasons, the petition for review will be denied. 
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I.

Yu is a native and citizen of China who arrived in the United States in January

2000. On April 13, 2001, Yu applied for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”) based on his opposition to China’s family

planning policy. Following a hearing on April 4, 2003, Immigration Judge R. K. Malloy

denied Yu’s application and, on July 21, 2004, the BIA affirmed. Yu then sought to

reopen the proceedings on the grounds that Chinese officials had recently discovered

evidence that Yu had been practicing Falun Gong in the United States. The BIA granted

Yu’s motion to reopen and remanded the case to the IJ to determine whether he was

entitled to asylum on those grounds. 

 At the August 30, 2005 hearing, Yu testified that he began practicing Falun Gong 

in 2003, while living in the United States. Yu claimed that in June 2004, Chinese

officials discovered certain Falun Gong materials in his parents’ home. Although Yu’s

parents do not practice Falun Gong, and although he did not begin practicing until after

he left China, he stated that he had hidden the materials there for a friend prior to his

departure. According to Yu, officials also discovered a photograph that Yu had mailed to

his parents depicting him with a Falun Gong book. The officials allegedly told Yu’s

parents that he must turn himself in to authorities when he came home, and returned to his

parents’ house on several occasions looking for him. Yu testified that if he were forced to

return to China, the authorities would arrest him and “re-educate” him. 
In addition, the BIA found that the IJ’s frivolousness finding did not comply with 1

the applicable regulations, and vacated that part of the IJ’s decision. 

3

The IJ, however, found Yu’s testimony incredible, and believed that he fabricated

the entire story after his first application had been denied. In her view, the only aspect of

Yu’s story that could be credible was his contention that he began practicing Falun Gong

in 2003, since, according to the IJ, Yu needed to find a new basis for his asylum claim. 

As to the rest of Yu’s story, the IJ found that it was “incredible, inconsistent, and

illogical.” (A.R. 000072.) Therefore, on August 30, 2005, the IJ concluded that Yu’s

application was frivolous and denied relief.

Upon review, the BIA accepted as true Yu’s contention that he practices Falun

Gong in the United States, but found that none of the IJ’s other findings of fact were

clearly erroneous. Thus, the BIA appears to have agreed with the IJ that the remainder of

Yu’s testimony—i.e., the story about authorities searching for him in China—was not

credible. By order entered March 20, 2007, the BIA affirmed the IJ’s denial of Yu’s

applications for asylum, withholding of removal, and protection under the CAT. The 1

present petition for review followed. 

II.

We have jurisdiction to review the BIA’s order of removal under 8 U.S.C. §

1252(a)(1). When, as in this case, the BIA substantially relies on the findings of the IJ,

we review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239,
The provisions of the Real ID Act concerning the Court’s review of an adverse

2

credibility finding do not apply because Yu filed his application for asylum before the

Act’s effective date. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). 

4

242 (3d Cir. 2004). We review these findings, including any credibility determinations,

under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.

2

2005). An adverse credibility finding must be afforded substantial deference, so long as

the finding is supported by sufficient, cogent reasons. See Butt v. Gonzales, 429 F.3d

430, 434 (3d Cir. 2005). The Court must evaluate whether the credibility determination

was “appropriately based on inconsistent statements, contradictory evidences, and

inherently improbable testimony . . . in view of the background evidence on country

conditions.” Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). 

An applicant seeking asylum must prove either that he suffered past persecution or

that he has a well-founded fear of future persecution on account of one of five

enumerated grounds. 8 U.S.C. § 1101(a)(42)(A). In this case, Yu’s application was

based on his claim that he had a well-founded fear of future persecution should he be

forced to return to China. To establish eligibility for asylum on this basis, Yu “must first

demonstrate a subjective fear of persecution through credible testimony that [his] fear is

genuine.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Second, he must show that

“a reasonable person in [his] circumstances would fear persecution if returned to the

country in question.” Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). To satisfy

this objective prong, he must show that he would be singled out for persecution, or that
5

“there is a pattern or practice in his or her country of nationality . . . of persecution of a

group of persons similarly situated to the applicant on account of” a protected ground. 8

C.F.R. § 208.13(b)(2)(iii)(A). 

Upon review, we find that substantial evidence supports the BIA’s and IJ’s

findings that Yu failed to demonstrate that he has a well-founded fear of being persecuted

should he be forced to return to China. It appears that the BIA and IJ denied his claim

primarily because they did not believe that his fear of future persecution was genuine. 

Although Yu testified that he was afraid to go home because Chinese authorities were

looking for him, the BIA and IJ did not credit this testimony. The IJ found that Yu’s story

about the authorities searching his parents’ home was highly suspect given the timing of

the alleged incident; Yu had been out of the country for four years when, just as the BIA

was affirming the denial of his first application for asylum, officials suddenly decided to

conduct the search. When Yu was asked what provoked authorities, he was unable to

provide a plausible explanation, instead surmising that perhaps the friend to whom the

books belonged had been pressured to lead officials there. The IJ also discredited Yu’s

testimony that officials learned of his practice by discovering the photograph that he had

mailed to his parents. According to the IJ, it is unlikely that anyone looking at the picture

would be able to discern that the book—which is in the background of the image and

contains no visible writing—was a book about Falun Gong. 
6

Based on our review of Yu’s testimony, we cannot conclude that “any reasonable

adjudicator would be compelled” to disagree with the BIA’s and IJ’s adverse credibility

determinations. See 8 U.S.C. § 1252(b)(4)(B). Thus, we agree that Yu failed to establish

the subjective prong of the well-founded fear test, and that, as a result, he was unable to

demonstrate eligibility for asylum. Given that Yu’s claims for withholding of removal

and relief under the CAT were based on the same evidence as his asylum claim, we

conclude that substantial evidence supports the denial of these claims as well. 

Accordingly, for the reasons set forth above, we will deny the petition for review. 

Yu’s motion to strike the government’s brief from the record is denied because, by order

entered January 17, 2008, the Court granted the government permission to file its brief

out of time.