Wu v. Atty Gen USA

Opinion

Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

4-14-2009

Wu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2700

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 08-2700

GUANG WU, Petitioner v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A98-593-601) Immigration Judge: Honorable Miriam K. Mills

Submitted Pursuant to Third Circuit LAR 34.1(a) April 8, 2009

Before: FUENTES, WEIS and GARTH, Circuit Judges

(Opinion filed: April 14, 2009)

OPINION

PER CURIAM.

Guang Wu petitions for review of a Board of Immigration Appeals (“BIA”)

decision dismissing his appeal of the Immigration Judge’s (“IJ”) decision denying his

1 applications for relief from removal. We will deny the petition for review.

Wu is a native and citizen of China who came to the United States in 2004.

Shortly after his arrival, the Immigration and Naturalization Service issued a notice to

appear charging that Wu is subject to removal because he is present in the United States

without having been admitted or paroled. Through counsel, Wu conceded that he is

removable as charged. Wu applied for asylum, withholding of removal, and relief under

the Convention Against Torture (“CAT”).

In support of his applications for relief from removal, Wu testified that he

began practicing Falun Gong in 2000. He stated that in August 2003 he went to Beijing

to pray for Falun Gong practitioners who had been arrested by the Chinese government.

Wu stated that during the gathering, which was attended by 20 to 30 people,

approximately ten police cars arrived. Wu testified that, along with other participants, the

police handcuffed him, placed him in a police car, and detained him. Wu further testified

that, after he was arrested, the police questioned him and forced him to take off his

clothes. Wu stated that the police hit him with sticks and deprived him of food. After

one week, the police released him.

Wu stated that an officer accompanied him en route to his hometown of

Fuzhou, but before they arrived, he ran away by climbing through a window in the train

restroom. Wu explained that he was afraid that the police would arrest him when he got

home. Wu hid at a friend’s house until he left China. Wu’s parents told Wu that the

police came to their house and told them that he must report to the police when he

2 returned home, and that the police watched their home. Wu further testified that in 2005

he learned that one of his friends with whom he was arrested in Beijing was arrested at

home and beaten up. He stated that his friend had to pay a lot of money to get out of jail.

Wu also testified about the principles of Falun Gong and how it is practiced.

He stated that he is afraid to return to China because the Chinese government still

persecutes Falun Gong practitioners. Wu further testified that he works at a Chinese

restaurant in New Jersey, and that he often stays at an apartment rented by his boss. Wu

stated that, when he is not at that apartment, he stays with friends in Philadelphia. On

cross-examination, Wu stated that he did not remember the address where he stays in

Philadelphia.

The Government pointed out on cross-examination that the immigration

officer at the border stated in a summary of his questioning of Wu that Wu came to the

United States to seek employment, and that Wu did not fear returning to China. Wu

denied that he made such statements, and stated that he had difficulty communicating

without an interpreter. The Government also noted that Wu stated that he was arrested on

August 8, 2003, but that a letter written by his friend stated that the date of arrest was

August 6, 2003. Wu stated that he believed that August 8, 2003, was the correct date, and

that the other statement was wrong. In addition, the Government noted that Wu stated in

his affidavit that he was arrested with the two friends that he had traveled with to Beijing,

but he testified that one of those friends was not arrested. Wu explained that, when he

filled out his asylum application, he believed that both friends were arrested, but he did

3 not call China to confirm the information. Wu stated that, after the application was

submitted, he learned that only one of his friends was arrested. Wu’s friend, Ling Yong

Feng, submitted a letter stating that he was not arrested.

The IJ denied Wu’s applications for relief from removal. The IJ found that

Wu provided no persuasive evidence that he ever practiced Falun Gong in China or in the

United States because he did not provide corroborative evidence that the court would

reasonably expect. The IJ noted that Wu did not reasonably explain why none of the

lawful permanent resident people with whom he lives in the United States, and whom he

testified had observed his Falun Gong practice, provided written or verbal testimony on

his behalf. The IJ stated that such corroboration was necessary because Wu was not

credible. The IJ found that Wu could not reasonably explain why the immigration officer

stated that he came here to seek employment. Although Wu faulted the use of a computer

interpreter, the IJ noted that the rest of the form accurately recorded his information. The

IJ did not believe Wu’s testimony that the immigration officer never asked him why he

came to the United States.

The IJ also stated that Wu failed to reasonably explain the inconsistencies

between his affidavit and letters corroborating his arrest regarding the date of the arrest

and whether his friend was arrested with him. The IJ found Wu’s explanation that he

wrote his affidavit before contacting his friends in China not convincing given the small

number of people at the demonstration and given that Wu specifically identified his two

friends as having been arrested with him. The IJ further noted that Wu established no

4 evidentiary foundation for letters from China purporting to corroborate that Wu was a

Falun Gong practitioner.

The IJ concluded that Wu failed to satisfy his burden of proof that he

suffered past persecution or that he is currently a Falun Gong practitioner based on the

adverse credibility determination and because he failed to submit expected corroborating

evidence. The IJ further concluded that, because Wu was not credible, he failed to

establish that he was eligible for withholding of removal or relief under the CAT. The IJ

noted that the same alleged facts supported these applications for relief.

Wu appealed the IJ’s decision to the BIA.1 The BIA adopted and affirmed

the IJ’s decision. The BIA stated that the IJ’s adverse credibility finding was sufficiently

supported by the record, and that Wu had not shown that the finding was clearly

erroneous. The BIA explained that there were several bases for the adverse credibility

finding, including Wu’s statements to the border control agent that he came to the United

States to work and that he had no fear of returning to China, and the discrepancies

between Wu’s asylum application and his documentary evidence regarding his date of

arrest and whether he and his friend were arrested together. The BIA noted that Wu did

not adequately explain these inconsistencies, and that he did not contest the admission or

1 The record reflects that the attorney who represented Wu before the IJ filed Wu’s notice of appeal. After the Pennsylvania Supreme Court temporarily suspended Wu’s attorney from the practice of law, the BIA granted the Government’s petition to suspend Wu’s attorney from practicing before the BIA. Wu retained new counsel, who filed a brief on his behalf.

5 reliability of his statements to the border control agent. The BIA further noted that Wu

had not shown that the IJ erred in determining that he failed to produce readily available

corroborative evidence regarding his practice of Falun Gong. The BIA agreed with the IJ

that Wu did not meet his burden of proof. Wu filed a petition for review.2

We review the IJ’s adverse credibility determination for substantial

evidence. Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). Under this standard of

review, the adverse credibility determination will be upheld unless a reasonable factfinder

would be compelled to conclude to the contrary. Id.

Wu argues that the discrepancy in the record regarding his date of arrest is

insufficient to support the adverse credibility finding. We agree. However, the

inconsistencies between Wu’s description of his arrest in his affidavit and his testimony

and the description given by his friend, Ling Yong Feng, constitute substantial evidence

supporting the adverse credibility finding. Wu stated in his affidavit that he went to

Beijing with Ling Yong Feng and Zheng Yan. In describing his arrest, Wu stated that

“before we could do anything the police had surrounded everybody including us. Some

Falun Gong practitioners, including Lin Yongfeng[sic], Zheng Yan and me, were

2 We previously granted the Government’s unopposed motion to remand the matter to the BIA to address the burden of proof provisions of the Real ID Act of 2005. On remand, the BIA concluded that, under the standards set out in the Real ID Act, the IJ’s findings that Wu failed to testify credibly, failed to submit reasonably available corroborating evidence, and failed to meet his burden of proof were supported by the record. The BIA referred to its prior decision for examples of the inconsistences in the record supporting the adverse credibility finding.

6 apprehended and put in police cars and trucks. That same day we were sent to a detention

center.” A.R. at 286-87. Wu, however, submitted a letter from Ling Yong Feng in which

Feng stated that he ran away when the police arrived, and that he escaped. Wu also

testified that Ling Yong Feng ran away. A reasonable factfinder would not be compelled

to find Wu credible in light of these blatant inconsistencies relating to the event that is the

basis of his asylum claim.

Although Wu argues that the IJ did not give him an opportunity to explain

the inconsistencies, the record reflects that Wu had several opportunities to explain them

in response to questions by the IJ and the Government. Wu explained that he wrote his

affidavit before speaking to his friends. The IJ, however, found this explanation

unconvincing given the small number of people at the demonstration and Wu’s specific

statement that he was arrested with Ling Yong Feng. Wu further argues that the IJ

impermissibly speculated that he would know that his friend was arrested given the

relatively small number of people at the gathering. Even if this were true, the fact

remains that Wu stated that Ling Yong Feng was arrested, which is simply not true.3

We also find no error in the conclusion of the IJ and BIA that Wu failed to

provide reasonably available corroborating evidence of his practice of Falun Gong from

3 We agree with the Government that this inconsistency is sufficient to support the adverse credibility finding. We thus need not address Wu’s arguments that the BIA erred in relying on his statements to the border control agent, and that the IJ erred in finding that he failed to provide a foundation for letters he received from China. As recognized by the BIA, we note that Wu did not challenge the reliability of his statements to the border control agent in his appeal to the BIA.

7 the people with whom he lives in the United States. When given the opportunity to

explain the absence of such evidence, Wu first stated that these individuals did not have

time to provide a letter on his behalf. He also stated that his lawyer did not ask him to get

a letter. Although Wu told the IJ that he could get letters from people who have seen him

practice Falun Gong, his lawyer did not request to supplement the record. Under the Real

ID Act, no court shall reverse a determination with respect to the availability of

corroborating evidence unless the court finds that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable. Toure v. Attorney General, 443

F.3d 310, 325 (3d Cir. 2006). In light of Wu’s explanation, a reasonable trier of fact is

not compelled to conclude that corroborating evidence of his practice of Falun Gong in

the United States is unavailable.

As Wu failed to meet his burden of showing that he is eligible for asylum

and withholding of removal, we will deny the petition for review.4

4 Wu did not challenge in his appeal to the BIA the IJ’s finding that he failed to provide corroborating evidence of his practice of Falun Gong. Because the BIA sua sponte addressed this finding, we have jurisdiction to consider Wu’s argument. See Lin v. Attorney General, 543 F.3d 114, 123 (3d Cir. 2008). We agree with the Government, however, that Wu did not exhaust his administrative remedies with respect to his CAT claim. See id. at 120-21.