Dong Fa Ji v. Mukasey

263 F. App'x 116
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 7, 2008
DocketNo. 07-2252-ag
StatusPublished

This text of 263 F. App'x 116 (Dong Fa Ji v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dong Fa Ji v. Mukasey, 263 F. App'x 116 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Petitioner Dong Fa Ji, a native and citizen of the People’s Republic of China, seeks review of an April 30, 2007 order of the BIA affirming the September 15, 2005 decision of Immigration Judge (“IJ”) Barbara A. Nelson, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Dong Fa Ji, No. A98 646 620 (B.I.A. Apr. 30, 2007), aff'g No. A98 646 620 (Immig. Ct. N.Y. City Sept. 15, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

When the BIA affirms 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). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled, in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).

The Immigration and Nationality Act (“INA”) provides, in pertinent part, that no court shall have 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). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and “questions of law” that arise in con[118]*118nection the agency’s application of the one-year bar. 8 U.S.C. § 1252(a)(2)(D).

In his brief to the BIA, Ji argued that his membership in the China Democracy Party (“CDP”) constituted a changed personal circumstance warranting an exception to the deadline for filing his asylum application. However, in his brief to this Court, Ji does not raise that argument, nor does he raise any argument at all with respect to the IJ’s findings that his asylum application was time-barred and that he did not establish the existence of changed conditions. Issues not addressed in a petitioner’s brief are considered waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Accordingly, we deny Ji’s petition on waiver grounds with respect to his asylum claim. Id.

Moreover, the IJ’s adverse credibility determination is supported by substantial evidence to the extent that it pertains to Ji’s family-planning claim. Although the inconsistencies in Ji’s testimony regarding the dates of his wife’s abortion were relatively minor and did not provide adequate support for an adverse credibility determination, see Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir.2005), Ji’s failure to mention his wife’s two alleged forced abortions in his original asylum application was legitimate grounds for drawing an adverse inference regarding the credibility of his testimony as it concerned his family-planning claim. See Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir.2006). His wife’s abortions formed the crux of Ji’s family-planning claim, and omissions that go to the heart of an applicant’s claim may serve as grounds for an adverse credibility determination. See Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005).

In addition, the only corroboration of the abortions that Ji submitted was an unsworn statement from his wife in China and an unauthenticated photocopy of a medical record dated April 3, 1997, stating that Ji’s wife was experiencing dizziness, waist pain, and other symptoms “one week after abortion operation.” The IJ correctly found that the medical record offered no evidence that the abortion was forced rather than voluntary. Given Ji’s testimonial discrepancies and omissions and the paucity of the corroborative evidence he provided, the IJ did not err in finding that the evidence was insufficient to overcome her doubts about Ji’s credibility. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006).

Therefore, the IJ correctly concluded that Ji had not established eligibility for withdrawing of removal or CAT relief as far as his family planning claim was concerned.

Moreover, the IJ correctly found that the difficulties Ji allegedly suffered as a result of his whistle blowing and union organizing activities did not amount to persecution. An applicant claiming economic persecution “need not demonstrate a total deprivation of livelihood or a total withdrawal of all economic opportunity.” In re T-Z, 24 I. & N. Dec. 163, 173 (B.I.A.2007). However, to rise to the level of prosecution, an economic deprivation must be sufficiently severe to “constitute a threat to an individual’s life or freedom.” Id. at 172-173.

Here, Ji testified that he was demoted and eventually forced to resign his job. He further testified that he found it impossible to secure another job. However, Ji also testified that his wife worked outside the home to support the family and that she continued to do so until after Ji departed for the United States. Moreover, Ji submitted into evidence an “Agreement on Termination of the Employment Contract,” stating that he would receive a [119]*119lump sum subsidy of 25,000 yuan upon termination of his employment as well as a pension of 1157 yuan a year for 22 years. Although, the loss of Ji’s employment may have caused him some economic hardship, Ji did not succeed in demonstrating that this hardship was sufficiently severe to qualify as persecution under the standards set forth by the BIA. In re T-Z, 24 I. & N. Dec. at 173-74.

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263 F. App'x 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dong-fa-ji-v-mukasey-ca2-2008.