Fei Xia Wang v. Attorney General of the United States

172 F. App'x 419
CourtCourt of Appeals for the Third Circuit
DecidedMarch 6, 2006
DocketNo. 04-4459
StatusPublished

This text of 172 F. App'x 419 (Fei Xia Wang v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fei Xia Wang v. Attorney General of the United States, 172 F. App'x 419 (3d Cir. 2006).

Opinion

OPINION OF THE COURT

SILER, Circuit Judge.

Fei Xia Wang, a native of China, petitions this court to review the Board of Immigration Appeals’s (BIA) streamlined affirmance of the Immigration Judge’s (IJ) denial of asylum, withholding of removal, [421]*421and relief under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16. Because the IJ’s determination that (1) certain inconsistencies in Wang’s testimony make her claim incredible and (2) the failure to prove a well-founded fear of persecution for selling banned Falun Gong literature is supported by substantial evidence on the record, we will DENY the petition. See Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001) (noting IJ’s findings supported by substantial evidence unless a different result is compelled).

I.

Wang was arrested in China for illegally selling books containing information on Falun Gong. She claims she was taken to a house and detained for five days. Eventually, she escaped to the home of a friend. She contends that police went to her home to look for her and threatened her parents. She later fled in 2000 to the United States without authorization or valid entry documents.

During her removal hearing before an IJ, Wang conceded removability. However, she argued entitlement to asylum, withholding of removal, and protection under the CAT. As her basis, she testified that she feared persecution for selling the Falun Gong text “FALUNFOFA” and for fleeing from authorities. In addition, she stated she feared retribution from the “snakehead” smugglers who brought her to the United States.

The IJ ordered removal upon the following findings: (1) Wang sold some Falun Gong materials but did not practice the beliefs of Falun Gong; (2) Wang’s detention in China for five days was an arrest; (3) Wang had informed immigration officers that she had never been arrested, but readily admitted in cross-examination that she had been arrested; (4) Wang’s father wrote in a letter that he had been arrested, but Wang testified that no one in her family had ever been arrested; (5) all requested relief would be denied based upon Wang’s lack of credibility; (6) even if she was credible, being arrested for selling illegal books in China does not amount to persecution, Fatin v. INS, 12 F.3d 1233 (3d Cir.1993); (7) Wang “obviously fears” persecution for selling illegal materials and having escaped from detention, but her fear is neither well-founded nor does it show a clear probability of persecution upon her removal; (8) because Wang cannot demonstrate well-founded fear as a predicate to her asylum application, her withholding of removal claim also fails; and (9) Wang has not shown that she is more likely than not to be tortured upon her return to China.

The BIA affirmed the IJ without opinion, and Wang petitioned for review.

II.

We have jurisdiction to review final decisions of the BIA under 8 U.S.C. § 1252(a). We review an IJ’s opinion and scrutinize its reasoning when the BIA issues a streamlined decision. Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.2004). Under substantial evidence review, an IJ’s denial of asylum can be reversed “only if the evidence presented by [the Petitioner] was such that a reasonable fact finder would have to conclude that the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Abdille, 242 F.3d at 483-84 (“[T]he [agency]’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.”).

To be eligible for asylum, Wang must show that she is a refugee, which means [422]*422that she is unwilling or unable to return to China “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Wang bears the burden of demonstrating past persecution or a well-founded fear of persecution with credible testimony. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

Eligibility for withholding of removal is more stringent than the standard for asylum. Lukwago v. Ashcroft, 329 F.3d 157, 177 (3d Cir.2003). The applicant must show that future persecution based on political opinion or other factors is “more likely than not” to occur. 8 C.F.R. § 208.16(b). “An applicant for relief on the merits under [Article 3] of the [CAT] bears the burden of establishing ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002) (quoting 8 C.F.R. § 208.16(c)(2)).

Adverse credibility determinations, like other factual findings in immigration proceedings, are reviewed under the substantial evidence standard. Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir.2003). An IJ’s adverse credibility finding is afforded substantial deference if it is supported by “specific cogent reasons.” Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir. 2004). Wang’s hearing and request for asylum occurred prior to the effective date of the Real ID Act, and therefore is not subject to a new provision that allows IJs to rely on inconsistencies “without regard” to whether they go to the heart of the asylum claim. Real ID Act of 2005, § 101(a)(3), Pub.L. No. 109-13, 119 Stat. 231, 303, codified at 8 U.S.C. § 1158(b)(l)(B)(iii). Thus, the IJ’s adverse credibility determination must involve the “heart of the asylum claim.” Gao, 299 F.3d at 272.

The IJ found that upon Wang’s initial entry into the United States, she lied to immigration officers about never having been arrested in China but admitted at the hearing that she had been arrested.

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172 F. App'x 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fei-xia-wang-v-attorney-general-of-the-united-states-ca3-2006.