Haiying Wang v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 2018
• Docket: 15-73901
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HAIYING WANG, No. 15-73901

Petitioner, Agency No. A094-990-705

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted June 12, 2018** San Francisco, California

Before: SCHROEDER, GOULD, and DIAZ,*** Circuit Judges.

Haiying Wang (“Wang”), a native and citizen of China, petitions for review

of a decision by the Board of Immigration Appeals (“BIA”) affirming an

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Albert Diaz, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation. Immigration Judge’s (“IJ”) denial of her applications for withholding of removal

and protection under the Convention Against Torture (“CAT”), and the IJ’s

determination that she filed a frivolous asylum application.

The BIA affirmed the IJ’s determination that Wang failed to timely file her

asylum application—a conclusion Wang does not challenge on appeal. The BIA

also found no error in the IJ’s finding that Wang didn’t present credible testimony

and therefore couldn’t establish her eligibility for asylum and withholding of

removal. Wang’s lack of credibility, coupled with evidence consisting solely of

general reports about torture in China, led the BIA to conclude that Wang failed to

show she was entitled to CAT protection. Finally, the BIA agreed with the IJ that

Wang had submitted a frivolous asylum application. It concluded—based on close

similarities between Wang’s declaration and three others previously filed by

different applicants—that Wang’s declaration was canned and thus she had

knowingly and deliberately fabricated material elements of her application.

We review administrative findings of fact for substantial evidence. Farah v.

Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). The agency’s determination that an

applicant knowingly made a frivolous application for asylum is reviewed de novo

for compliance with the procedural framework set forth by the BIA. See Ahir v.

Mukasey, 527 F.3d 912, 916–17 (9th Cir. 2008) (adopting framework from In re Y-

L-, 24 I. & N. Dec. 151, 151–52 (BIA 2007)).

2 Substantial evidence supports the agency’s adverse credibility determination

here. The IJ found that Wang lacked credibility because there were inconsistencies

between her testimony and her asylum declaration as to the timing and occurrence

of certain events involved in her narrative of undergoing a forced abortion in

China. The IJ also noted Wang’s hesitant demeanor when questioned beyond the

narrative contained in her declaration. “IJs are in the best position to assess

demeanor and other credibility cues that we cannot readily access on review,” and

thus, “only the most extraordinary circumstances will justify overturning an

adverse credibility determination.” Shrestha v. Holder, 590 F.3d 1034, 1041 (9th

Cir. 2010) (internal quotation marks omitted).

Wang contends she should have been granted withholding of removal. “To

qualify for withholding of removal, a petitioner must establish a clear probability

that his life or freedom would be threatened if he returned to his homeland on

account of race, religion, nationality, membership in a particular social group, or

political opinion.” Shrestha, 590 F.3d at 1039 (internal quotation marks omitted);

see also 8 U.S.C. § 1231(b)(3)(A). Yet without credible testimony, Wang can’t

establish a “clear probability” that upon return to China she would be subject to

persecution based on a protected ground that would entitle her to withholding of

removal. See Shrestha, 590 F.3d at 1048. Her claim therefore fails.

Wang’s CAT claim also fails because it’s based on the same testimony the

3 agency found not credible, and Wang doesn’t point to any other evidence in the

record that compels the conclusion that she more likely than not would be tortured

by or with the consent or acquiescence of the Chinese government. See Almaghzar

v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006) (where petitioner offers

discredited testimony and general reports about torture in the country of removal,

those reports alone do not compel the conclusion that the petitioner would be

tortured if returned).

We uphold the agency’s finding that Wang filed a frivolous asylum

application because the agency complied with the procedural requirements of In re

Y-L-. See In re Y-L-, 24 I. & N. Dec. at 155–60 (requiring that: (1) an asylum

applicant must have notice of the consequences of filing a frivolous application, (2)

the IJ or BIA must make specific findings that the applicant knowingly filed a

frivolous application, (3) those findings must be supported by a preponderance of

the evidence, and (4) the applicant must be given sufficient opportunity to account

for any discrepancies or implausibilities in his application).

Wang concedes that she was given notice of the consequences of filing a

frivolous application and that the agency made specific findings that she

knowingly submitted one. Contrary to Wang’s assertions, a preponderance of the

evidence supports the IJ’s finding that Wang deliberately fabricated a material

element of her application. See 8 C.F.R. § 1208.20 (“[A]n asylum application is

4 frivolous if any of its material elements is deliberately fabricated.”). The IJ found

that Wang’s declaration mirrored three previously submitted declarations from

other applicants in chronology, content, language, structure, and circumstance to

an extent that indicated her declaration wasn’t authentic. We agree. Further,

Wang was given ample opportunity to address and account for the striking

similarities between her declaration and the others, but failed to do so. See Ahir,

527 F.3d at 919.

PETITION DENIED.