2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-26-2012

Fengying Yang v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2507

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NOT PRECEDENTIAL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 25, 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 alleging that she had entered the United 

States without a valid entry document. She conceded removability and applied for 

asylum, withholding of removal, and protection under the Convention Against Torture 

(“CAT”), claiming that she feared persecution upon her return to China as a result of her 

activities 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 used another’s passport to gain entry to the United 

States, had unexplained difficulty providing accurate biographical testimony, and 

submitted an unauthenticated birth certificate. The IJ identified numerous other problems

with Yang’s testimony, including her refusal to answer questions about why she left 

China when asked by her attorney1

 1 In her application and amended application, Yang detailed two incidents prompting her 

to leave China—her sister’s death as a result of exposure to poisons 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 name of 

the town in which she claimed to live for three years after her arrival in the United States. 

Additionally, although 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 of 
3

these and many other inconsistencies in her testimony, the IJ found that Yang was not 

credible and denied relief on that basis. 

Yang appealed to the 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) she provided sufficient evidence to prove her identity; 2) the 

adverse credibility finding was not supported by substantial evidence; and 3) she did not 

waive an appeal of the denial of withholding 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, 239 F.3d 542, 548 (3d Cir. 2001). Prior to raising 

an issue for 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. 

Holder

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 factual findings, including any credibility 
4

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 contrary 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, the 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 things Yang now attacks: the 

BIA’s determination that she did not appeal the denial of relief under the CAT and its 

8 U.S.C. § 1252(d)(1). We disagree. 

 2 Because Yang filed her 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., 543 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 her story, and the consistency of 

her statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya 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 provision).
5

concomitant holding that the issue was waived. In her brief on appeal to the BIA, Yang 

argued: 

The IJ erred in her finding that “there is nothing in the evidence to show 

that [Appellant] would be tortured or that government 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 Department’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 attacked the finding that 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 claim 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 denial 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 petitioner is deemed to have exhausted her administrative 
6

remedies.”) (quoting Lin v. Att’y Gen.

The Government next argues that we lack jurisdiction over four of the specific 

challenges Yang now raises, to wit: 1) her challenge to the findings 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 challenge to the finding of omissions in her Form I589 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. Accordingly, we 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 

arguments regarding omissions in her asylum application were never raised before the 

Board. We 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 

conclude 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-government
7

activities in the United States. This incident was not, however, mentioned in her written 

application for relief. Yang explained that, although she was apparently unafraid 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 383. She also 

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

AR 389-90. The IJ and BIA rejected those explanations, and Yang has not demonstrated

that the record compels a contrary result. Her 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 support the BIA’s adverse credibility finding. 

In light of that finding, we agree that she failed to demonstrate 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 her burden to demonstrate that she 

was entitled to relief. See Chukwu v. Att’y Gen., 484 F.3d 185, 188-89 (3d Cir. 2007); 

Toure

 3 We note that in her filings before the BIA and in support of her petition for review, 

Yang has offered nothing by way of an alternate explanation, i.e., what question she may 

have thought she was answering when she informed the IJ that she was 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 the 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 citation 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 dismissed 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 necessitating 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.@