Yilan Jiang v. Attorney General of the United States

259 F. App'x 520
CourtCourt of Appeals for the Third Circuit
DecidedDecember 26, 2007
DocketNo. 05-5092
StatusPublished

This text of 259 F. App'x 520 (Yilan Jiang 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
Yilan Jiang v. Attorney General of the United States, 259 F. App'x 520 (3d Cir. 2007).

Opinion

OPINION OF THE COURT

SCIRICA, Chief Judge.

Yilan Jiang, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals affirming the Immigration Judge’s final order of removal. For the reasons set forth below, we will affirm.

I.

Jiang arrived in the United States on August 12, 2001 without valid travel documentation. INS detained her and she was later released. On August 20, 2001, INS Issued a Notice to Appear, charging Jiang with entering the United States without permission, Section 212(a)(7)(A)(i)(I) of the [521]*521Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(7)(A)(i)(I), and seeking admission to the United States by fraud or willful misrepresentation of material facts, Section 212(a)(6)(C)(i) of the INA, 8 U.S.C. § 1182(a)(6)(C)(i). Jiang applied for relief in the form of asylum, withholding of removal, voluntary departure and Convention Against Torture protection, on the grounds that she was mistreated and suffered past persecution while in China. She testified she was forced to undergo an abortion for becoming pregnant out of wedlock and suffered further harassment when family planning officials came to her house and removed household items after she refused to pay a fine.

Following several evidentiary hearings, the IJ denied Jiang’s applications for asylum, withholding of removal, relief under the CAT and voluntary departure, and ordered her removed. The IJ was not convinced Jiang had been pregnant and forced to have an abortion, pointing to inconsistencies in her testimony and her affidavit. The IJ also found Jiang’s failure to submit medical records of her gynecological history, which the IJ had requested, demonstrated Jiang was not credible. Because Jiang provided incredible testimony and showed no remorse for filing a fabricated application for asylum, the IJ also found Jiang knowingly filed a frivolous asylum application after proper notice. Jiang filed a timely appeal to the Board of Immigration Appeals, which affirmed without opinion on October 31, 2005. On November 18, 2005, Jiang filed a petition for review and a Motion for Stay of Removal with this court.

II.

The BIA had jurisdiction over Jiang’s appeal under 8 C.F.R. § 1000.3(b)(3). We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). We generally review the decision of the BIA, but where, as here, the BIA summarily affirms the IJ without opinion, we review the IJ’s decision directly. 8 C.F.R. § 3.1(e)(4); Partyka v. Attorney General, 417 F.3d 408, 411 (3d Cir.2005). We review factual determinations of the IJ, including credibility determinations, for substantial evidence. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We thus defer to the IJ’s credibility determinations unless the findings are not grounded on the record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003)

III.

The Government contends that we lack jurisdiction to consider several of Jiang’s claims because Jiang failed to raise them on appeal to the BIA.1 Statutory exhaustion requirements are jurisdictional. Xie v. Ashcroft, 359 F.3d 239, 246 n. 8 (3d Cir.2004). We review questions of our jurisdiction de novo. Valansi v. Ashcroft, 278 F.3d 203, 207-08 (3d Cir.2002). An alien must exhaust all administrative remedies available as of right before we may review a final order of removal. 8 U.S.C. § 1252(d)(1). A petitioner “need not do much to alert the Board that [she] is raising an issue,” Joseph v. Attorney General of U.S., 465 F.3d 123, 126 (3d Cir.2006), and has exhausted her administrative remedies before the BIA “so long as [she] makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005) (citing Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004)).

[522]*522The Government contends Jiang failed to exhaust her claim that the IJ erred in finding her application for asylum frivolous. The Government claims, because Jiang did not exhaust this claim, that she is “permanently ineligible” for asylum independent of any review that the IJ lacked substantial evidence to find she was ineligible for asylum. But on appeal to the BIA, Jiang challenged the IJ’s refusal to grant asylum, contesting the IJ’s credibility determination and the IJ’s findings regarding whether Jiang suffered persecution. These claims implicitly challenge the IJ’s finding that her asylum application was frivolous and gave the BIA “the opportunity to resolve [the] controversy or correct its own errors before judicial intervention.” Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.2004). If Jiang had prevailed on her claim before the BIA, it would not have been frivolous. Therefore, she sufficiently exhausted this claim.

Second, the Government contends Jiang failed to exhaust her claim that the IJ erroneously speculated about Chinese government practices. Jiang argued in her appeal to the BIA that the IJ erred in finding her incredible. The contention that the IJ engaged in speculation falls within this claim. Jiang’s argument provided sufficient notice to the BIA that “there was a claim of error hovering around the Immigration Judge’s findings.” Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005).

Third, the Government contends Jiang failed to exhaust her claim that the IJ improperly relied on the absence of corroborating evidence concerning Jiang’s abortion because the IJ did not follow our three-part inquiry for corroborating evidence. See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001).

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Related

S-M-J
21 I. & N. Dec. 722 (Board of Immigration Appeals, 1997)
Muhanna v. Gonzales
399 F.3d 582 (Third Circuit, 2005)

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Bluebook (online)
259 F. App'x 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yilan-jiang-v-attorney-general-of-the-united-states-ca3-2007.