Dan Zhu Wong v. United States Department of Homeland Security

271 F. App'x 77
Court of Appeals for the Second Circuit·Decided March 27, 2008·No. No. 06-3568-ag·Published

Opinion

SUMMARY ORDER

Petitioner Dan Zhu Wong, a citizen of the People’s Republic of China, seeks review of a July 6, 2006 order of the BIA affirming the November 24, 2004 decision of Immigration Judge (“IJ”) Elizabeth A. Lamb, denying Wong’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Dan Zhu Wang a.k.a. Dan Zhu Wong, No. A 78 294 692 (B.I.A. July 6, 2006), affg No. A 78 294 692 (Immig. Ct. N.Y. City Nov. 24, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court reviews the agency’s factual findings under the substantial evidence standard. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds hy Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).

I. Wong’s Religious-Persecution Claim

Substantial evidence supports the agency’s determination that Wong failed to meet her burden of proving either past persecution or a well-founded fear of persecution in China based on her alleged religious beliefs and affiliation with the Morman church. The agency reasonably deemed her testimony incredible based in part on inconsistencies between her testi[80]*80mony and written asylum application. In particular, while Wong stated in her asylum application that she began work in a shoe factory in her own village in February 1998, she testified that because of her religious beliefs she was prevented by the village head from finding a job in the village where she lived. Moreover, Wong’s testimony concerning the duration of her employment at the shoe factory was internally inconsistent: she stated at one point that she worked at the factory for two years, and at another point stated that she worked there from 1998 until 2002. Because these inconsistencies were material to Wong’s claim that her religious practice interfered with her ability to find employment, it substantiated the agency’s adverse credibility determination. See Se-caidar-Rosales, 381 F.3d at 308.

Once Wong’s credibility was called into doubt, the agency reasonably found that her corroborating evidence was insufficient to rehabilitate her testimony. See Zhou Yun Zhang, 386 F.3d at 78. First, the IJ reasonably gave diminished weight to letters Wong submitted from her mother and a church member from China because, in contrast to Wong’s testimony, neither letter referenced any damage to their church. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (holding that the weight afforded to documentary evidence “ ‘lies largely’ within the discretion of the IJ” (alternation omitted)); see also Singh v. BIA, 438 F.3d 145, 148 (2d Cir.2006). Likewise, the agency reasonably afforded “very little” weight to a letter Wong provided, allegedly from the branch president of the Mormon church she attended in New York, because Wong was unable to identify the author of the letter and the letterhead contained a misspelling of “New York State.” Id.-, see also Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (finding it reasonable for the IJ to infer that an applicant’s document was fraudulent because that “inference [was] made available ... by the record facts”) (alteration in original).

Accordingly, we uphold the agency’s denial of Wong’s religious-persecution claim.3

II. Wong’s Family-Planning Claim

Substantial evidence also supports the agency’s determination that Wong failed to establish asylum eligibility based on the birth of her two children in the United States. Wong’s claim that the IJ abdicated its factfinding responsibility by not specifically addressing the 2004 State Department Country Report is meritless. The agency need not “ ‘expressly parse or refute on the record’ each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). In any event, nothing in the report indicates that Wong will be subject to China’s coercive population control policies on account of her United States born children. See Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (stating that an applicant’s well-founded fear claim based on United States-born children was “speculative at best” when he failed to present “solid support” that he [81]*81would be subject to the family planning policy upon his return to China); see also Wei Guang Wang, 437 F.3d at 274 (deeming insufficient to establish changed country conditions the 2004 State Department Country Report on Human Rights Practices for China and the so-called “Aird affidavit”); In re J-W-S-, 24 I. & N. Dec. 185, 190-91 (BIA 2007) (calling into question whether children born abroad are counted under China’s family planning policy).

To the extent, if any, that the BIA failed to consider the transcript of a 1998 Congressional hearing or a copy of China’s Nationality Law that Wong submitted for the first time on appeal to the BIA, we also find no error. See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand.”). In any event, the evidence submitted on appeal to the BIA was neither newly available, 8 C.F.R. § 1003.2(c)(1), nor do its contents establish a prima facie claim for asylum based on United States-born children.

Although Wong asserts that the documents discussed in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), may provide evidence of a policy in Fujian Province of forced sterilization of Chinese nationals with two or more children, we decline to remand on that basis because those documents are not in the record. See Xiao Xing Ni v. Gonzales, 494 F.3d 260

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Dan Zhu Wong v. United States Department of Homeland Security, 271 F. App'x 77 (2d Cir. 2008).

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