2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-26-2012 

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-2507

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w . v i l l a no v a . e du/thir dc ir c uit_2012/1095NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 2507

___________ FENGYING YANG, Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals

(Agency No. A093

- 396

- 912 ) Immigration Judge: Honorable Susan G. Roy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) April 2 5, 2012 Before: AMBRO, ALDISERT and NYGAARD , Circuit Judges (Opinion filed : April 26, 2012 )

___________

OPINION

___________ PER CURIAM Fengying Yang petitions for review of a final order of removal. For the reasons discussed below, we will dismiss in part and deny in part the petition for review.2 I. Yang, a citizen of China , was served with a Notice to Appear charging her as removable under 8 U.S.C. § 1227(a)(1) (A) and a lleging that she had enter ed the United
Stat es without a valid entry document . She conceded removability and applied for asylum, withholding of removal, and protection under the Conven tion Against Torture (“CAT”) , claiming that she feared persecution upon her return to China as a result of her acti vities with the China Democracy Party (“CDP”)

. Yang testified before an immigration judge (“IJ”) in support of her applications

. The IJ first found that Yang was unable to meet her burden of proving her identity with adequate, reliable evidence

— she use d another’s passport to gain entry to the United States, had unexplained difficulty providing accurate biographical testimony, and submitted an unauthenticated birth certificate. T he IJ identified numerous other problems with Yang’s testimony , including h er refusal to answer questions about why she left China when asked by her attorney 1

1 In her application and amended application, Yang d etailed two incidents prompting her to leave China

— her sister’s death as a result of exposure to poison s at the pharmaceutical company where she worked , and mistreatment as a result of rejecting local officials’ attempts at extortion. See AR 665

- 6671; 501

- 508. and her inability to recall her address or the nam e of the town in which she claimed to live for three years after her arrival in the United States

. Additionally, a lthough she testified that her fear of future persecution arose from Chinese officials having visited her parents and husband due to political activities in the United States, she omitted any mention of that visit from her application for asylum. In light of3 th e se and many other inconsistencies in her testimony , the IJ found that Yang was not credible and denied relief on that basis

. Yang appealed to t he BIA , arguing that the IJ’s adverse credibility determination and other holdings were erroneous. The Board dismissed Yang’s appeal in June 2009. Yang moved the Board to reissue its decision in light of her prior counsel’s ineffectiveness, and the BIA granted her motion. Accordingly, Yang’s petition for review , filed within thirty days of the reissued opinion, is timely. 8 U.S.C. § 1252(b)(1). She raises three claims : 1) s he provided sufficient evidence to prove her identity ; 2) t he adverse credibility fin d ing wa s not supported by substantial evidence ; and 3) s he did not waive an appeal of the denial of withho lding of removal under the CAT as that issue was raised before the BIA.
II. We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft , 23 9 F.3d 542, 548 (3d Cir. 2001). Prior to raising an issue f or judicial review, a petitioner must exhaust all administrative remedies available as of right regarding that issue. 8 U.S.C. § 1252(d)(1); Sandie v. Att’y Gen

. , 562 F.3d 246, 250 n.1 (3d Cir. 2009). This is a jurisdictional requirement. See Hoxha v.
H older This Court reviews the decision of the Board and, to the extent deferred to or incorporated therein, the decision of the immigration judge. , 559 F.3d 157, 159 n.3 (3d Cir. 2009).

Miah v. Ashcroft , 346 F.3d 434, 439 (3d Cir. 2003). We review fact ual findings, including any credibility4 determinations, under a substantial evidence standard. See Cao v. Att’y Gen. , 407 F.3d 146, 152 (3d Cir. 2005). Under that standard, we must uphold the BIA’s decision unless the evidence not only supports a contrar y conclusion, but compels it. See Abdille v. Ashcroft , 242 F.3d 477, 483

- 84 (3d Cir. 2001). The burden of establishing eligibility for asylum, withholding of removal, and relief under the CAT is on the applicant. Toure v. Att’y Gen. , 443 F.3d 310, 317 ( 3d Cir. 2006) (citing 8 C.F.R. § 208.13(a))

. 2
III.
A. As an initial matter, we must address the Government’s arguments regarding the extent of our jurisdiction over Yang’s claims. First , t he government argues that Yang did
not exhaust her claim that the BIA erred in holding that she waived her arguments regarding relief under the CAT

. See The Government bases its argument on the very thing s Yang now attacks: the
BIA ’s determin ation that she did not appeal the den ial of relief under the CAT and its 8 U.S.C. § 1252(d)(1). We disagree.

2 Because Yang filed h er asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is based need not go to the heart of her claim. See Lin v. Att’ y Gen. , 5 43 F.3d 114, 119 n.5 (3d Cir. 2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Yang’s demeanor, the plausibility of h er story, and the consistency of h er statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuni ya v. Att’ y Gen. , 463 F.3d 316, 322 n.7 (3d Cir. 2006). We have not applied the REAL ID Act standard in a precedential opinion. Here, because the inconsistencies identified by the IJ relate to the heart of Yang’s claims for relief, and would thus support an adverse credibility determination even under the pre

- REAL ID Act standard, we need not consider whether 8 U.S.C. § 1158(b)(1)(B)(iii) is consistent with due process. See Wang v. Holder , 569 F.3d 531, 538 (5th Cir. 2009) (canvassing Circuit law on the p rovision).5 concomitant holding that the issue was waived. I n her brief on appeal to the BIA, Yang argued:
T he IJ erred in her finding that “there is nothing in the evidence to show that [Appellant] would be tortured or that gover nment officials would acquiesce or turn a blind eye to her torture should she return. Mere imprisonment, although certainly unfortunate and not condoned by this Court, does not rise to the level of the stringent torture standard set out in the regulations

. . . ” Appeal Brief at 13 ( quoting the Oral Decision of the Immigration Judge at 26 ) (emphasis and alteration in original). She went on to argue that that finding was not supported by substantial evidence, that the IJ failed to consider the State Departm ent’s report in her plausibility analysis, and that the IJ made no specific finding as to whether other evidence in the record supported Yang’s claim. Although Yang incorrectly identified the issue as pertaining to her asylum claim, she explicitly attacke d the finding th at she would not be
tortured upon her return to China; this was unambiguously relevant to the denial of her request for relief under the CAT

. In fact, the quotation provided in Yang’s brief continued, “. . . and therefore I will deny her c laim for withholding of removal under the Convention Against Torture as well .” Oral Decision of the Immigration Judge at 26 (emphasis added) . Yang’s argument on appeal was more than sufficient to place the BIA on notice that she intended to appeal the de nial of relief under the CAT. Dan Hua Wu v. Att’y Gen. , 571 F.3d 314, 317 (3d Cir. 2009) (“ [s] o long as a[] . . . petitioner makes some effort, however insignificant, to place the [BIA] on notice of a straightforward issue being raised on appeal, a petiti oner is deemed to have exhausted her administrative6 remedies.”) (quoting Lin v. Att’y Gen.

The Gov ernment next argues that we lack jurisdiction over four of the specific challenges Yang now raises , to wit: 1) her challenge to the finding s that her testimony was “laborious” and that she was unresponsive at times; 2) her argument that the negative inferences drawn from Yang ’s refusal to testify regarding her experiences prior to leaving China violated due process ; 3) her allegation of a “fatal error” in the translation of the letter from Yang’s father; and 4) her ch allenge to the finding of omissions in her Form I

589 asylum application despite her inability to explain those omissions because of translation problems. On appeal to the BIA , Yang raised arguments regarding the IJ’s adverse credibility determination based upon her nervousness and various translation

errors . Acc ordingly, w e hold that her argument regarding the finding that her testimony was “laborious” and unresponsive is exhausted

. , 543 F.3d 114, 121 (3d Cir. 2008)). Accordingly, we hold that Yang has adequately exhausted the CAT claim she presents in her petition

.

Wu , 571 F.3d at 317

. However her due process argument , her argument regarding the translation of her father’s letter, and her
argu ments regarding omissions in her asylum application w ere n ever raised before the Board. W e will therefore dismiss them for lack of jurisdiction. Hoxha
B. , 559 F.3d 159 n.3.

We now turn to the merits of Yang’s claims. After review of the record, we
conclu de that substantial evidence supports the finding that Yang did not testify credibly. Yang testified that she did not fear returning to China until she was informed that Chinese police visited her mother and specifically inquired as to her anti

- government7 activities in the United States. This incident was not, however, mentioned in her written application for relief. Yang explained that, a lthough she was apparently un afraid to continue protesting, she was “afraid that the Chinese policemen would come to America to take me away” if she mentioned the incident in her application. AR 38 3

. She also claimed that she didn’t feel it was necessary to mention the incident in her application

. AR 389

- 90. T he IJ and BIA reject ed th ose explanation s, and Yang has no t demonstrate d that the record compels a contrary result

. H er argument that there were interpretation problems

— that she “may have offered the testimony in response to questions that were not correctly interpreted”

— is unpersuasive

. 3 The omission of what she claims formed the basis of her fear of persecution from her asylum application is undoubtedly material to her claims and is more than sufficient to suppor t the BIA’s adverse credibility finding. In light of that finding, we agree that she failed to de monstrate a reasonable probability that she will be persecuted upon return to China . We likewise discern no error in the Board’s concomitant holding that Yang did not meet h er burden to demonstrate that s he was entitled to relief

. See Chukwu v. Att’y Gen

. , 484 F.3d 185, 188

- 8 9 (3d Cir. 2007);
Tour e

3 We note that in her filings before the BIA and in support of her petition for review, Yang has offered nothing by wa y of an alternate explanation, i.e., what question she may have thought she was answering when she informed the IJ that she wa s afraid Chinese police would come to America to take her away. , 443 F.3d 310, 317

. As she was not entitled to relief, her remaining arguments regarding asylum and withholding of removal need not be addressed

.8 For the reasons outlined above, we hold that t he BIA erred in holding that Yang waived her arguments regarding relief under the CAT

. Remand, however, “is not required when it would be an idle and useless formality.” Li Hua Yuan v. Att’y Gen. , 642 F.3d 420, 427 (3d Cir. 2011) (internal quotation marks and citati on omitted). Here, Yang’s application for CAT relief was based upon the same testimony as her claims for asylum and withholding of removal; the adverse credibility finding was therefore likewise fatal to her CAT claim, and her appeal would have been dismi ssed regardless.
See Yu v. Att’y Gen. , 513 F.3d 346, 349 (3d Cir. 2008). Accordingly, the BIA’s error was harmless, and we need not remand the matter for further consideration. Yuan

IV. , 642 F.3d at 427 (“[W] e will view an error as harmless and not necessit ating a remand to the BIA when it is highly probable that the error did not affect the outcome of the case. ”)

.

For the reasons we have given, we dismiss in part and deny the petition for review. @