Hua Yang v. Attorney General of the United States

356 F. App'x 575
CourtCourt of Appeals for the Third Circuit
DecidedOctober 26, 2009
DocketNo. 08-2842
StatusPublished

This text of 356 F. App'x 575 (Hua Yang 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
Hua Yang v. Attorney General of the United States, 356 F. App'x 575 (3d Cir. 2009).

Opinion

[577]*577OPINION

PER CURIAM.

Hua Yang, a native and citizen of the People’s Republic of China, entered the United States without inspection in 2005. The Government later charged him with removability, which he conceded before an Immigration Judge (“IJ”). Through counsel, Yang applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), asserting that he feared returning to China where he faced religious persecution for organizing and participating in an underground Roman Catholic church in his hometown.

The IJ made an adverse credibility determination on the basis that Yang’s testimony was in conflict with his documentary evidence, which the IJ described as “not authenticated.” Because of this “lack of credibility” and “implausibility,” the IJ denied Yang’s asylum application. The IJ also noted, that “even in the alternative, [she] would have to find” that Yang had not shown past persecution. She subsequently concluded that he had not shown that he would be subject to future persecution. On the same reasoning, the IJ denied the withholding claim. She also held that Yang had set forth no facts or circumstances to show that he would be tortured on return to China and denied the CAT claim.

Yang appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed Yang’s appeal. The BIA stated that Yang did not challenge the IJ’s factual findings and held that the IJ’s legal conclusions were correct for the reasons given by the IJ. In particular, the BIA held that Yang did not establish a fear of persecution “given discrepancies concerning his relationship with a government sanctioned church.” The BIA also especially noted that Yang did not “submit documentation to corroborate his claim that fellow underground church members are being persecuted by the Chinese government.”

Yang petitions for review of the BIA’s decision.1 We have jurisdiction over Yang’s petition under 8 U.S.C. § 1252(a). In reviewing the BIA’s and IJ’s decisions, see Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004), we consider questions of law de novo,2 See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, like an adverse credibility determination, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility finding must be afforded substantial deference, so long as the finding is supported by sufficient, cogent reasons. See id. at 434. We evaluate whether the credibility determination was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence of country conditions.” Chen, 376 F.3d at 223.

We note that before the enactment of the REAL ID Act of 2005, an adverse credibility determination could be based on inconsistencies only if the inconsistencies went to the heart of the claim. See Chuk-[578]*578wu v. Attorney Gen. of the United States, 484 F.3d 185, 189 (3d Cir.2007). However, a new REAL ID Act standard, which provides that “credibility determinations may be made ‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,’ ” applies to Yang’s case because he filed his application for relief from removal after May 11, 2005. See id. (quoting the REAL ID Act); see also Kaita v. Attorney Gen. of the United States, 522 F.3d 288, 296 (3d Cir.2008). Although we have not yet spoken on what the change in the law means, we conclude that the credibility finding in this case is suspect under the pre-REAL ID Act standard and any stricter standard of review that follows from the REAL ID Act. See, e.g., Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).

First, we are perplexed by the BIA’s statement that Yang did not challenge the IJ’s factual findings. That statement is simply not correct because, among other things, Yang’s appeal brief to the BIA plainly challenges the IJ’s core adverse credibility findings. See R. 16-17.

Second, in dismissing the appeal, the BIA specifically relied on the IJ’s reasoning that Yang’s testimony about his underground church activities was contradicted by the letter that he submitted from the Bishop of the Catholic Church in the Mawei district. However, the IJ’s conclusion that the evidence in the letter “is completely and totally different from the testimony” is clearly erroneous. At the immigration hearing, Yang was asked whether he attended the government-approved Catholic Church in the Mawei district. He stated that he was baptized there, but that he regularly attended the underground churches in his hometown. The IJ disbelieved that testimony, pointing to the Bishop’s letter which, the IJ insisted, indicated that Yang “frequently attended mass there [in the Catholic Church in the Mawei district].” However, the letter indicates only that Yang was a good member of the Catholic church in his hometown and not that he was a good member of the Bishop’s church in the Mawei district, which Yang testified was far away from his village. Throughout the hearing, Yang consistently testified that he regularly attended underground masses that he organized in his hometown.

In regard to the letter, the IJ also questioned Yang about why the Bishop indicated “that the government of the People’s Republic of China does not provide religious freedom to individuals in China.” The IJ found Yang’s response inadequate. First, the IJ mischaracterized the Bishop’s statement a bit. In context, it was that “[a]lthough China is not a free country for religious belief, [Yang] was enthusiastic in the Gongjiao activities.” The statement was not inconsistent with Yang’s account nor is it in conflict with the 2006 International Religious Freedom Report that the IJ considered. As Yang conceded, the Bishop may have been taking a chance in including such a statement in a letter. And the IJ, in determining whether a letter from the Bishop would include a comment on religious freedom in China, could “draw inferences based on common sense and logic as well as on personal experience and background knowledge gained from exposure to certain situations,” Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir.2003). However, the IJ did not do this so much as take Yang to task for not being able to articulate the Bishop’s reason for including the comment about religious freedom.

The IJ also faulted Yang’s testimony for its lack of details. It has been said that “details matter.” Mitondo v. Mukasey, 523 F.3d 784, 789 (7th Cir.2008).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
356 F. App'x 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hua-yang-v-attorney-general-of-the-united-states-ca3-2009.