Yuan Shan Wu v. Holder

501 F. App'x 786
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 14, 2012
Docket11-9550
StatusUnpublished

This text of 501 F. App'x 786 (Yuan Shan Wu v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yuan Shan Wu v. Holder, 501 F. App'x 786 (10th Cir. 2012).

Opinion

ORDER AND JUDGMENT *

TIMOTHY M. TYMKOVICH, Circuit Judge.

Yuan Shan Wu petitions for review of the final order of the Board of Immigra *787 tion Appeals’ decision affirming the Immigration Judge’s denial of his claim for asylum. 1 Exercising our jurisdiction under 8 U.S.C. § 1252(a), we affirm the decision of the BIA and deny the petition for review.

I. Background

Wu, a native and citizen of the People’s Republic of China, entered the United States illegally in June 2001 and was placed in removal proceedings in March 2002. Wu conceded removability but sought asylum, restriction on removal, and voluntary departure.

Wu asserted two bases of persecution by the government of China: (1) persecution on account of political opinion because he opposed China’s family planning policy after his wife was forcibly sterilized following the birth of the couple’s second child; and (2) persecution on account of religion because he was a practicing Christian and held church gatherings at his home. Because the lengthy procedural history of Wu’s claims for asylum relief, which included a change of venue and two separate appeals to the BIA, an overview of the proceedings will be helpful in understanding the claims in this petition.

A. Removal Proceedings

1. April 13, 2005 Hearing

Wu’s removal proceedings began in New York City where he resided at the time. At a hearing before an IJ in 2005, Wu testified that on August 15, 1998, approximately two weeks after his second child was born, family planning officials appeared at his home and instructed his wife to report for a sterilization procedure. Wu requested that his wife have a full month of recovery before reporting for the procedure, to which the family planning officials agreed.

Wu testified that he and his wife planned to go into hiding on the evening of August 29 to forestall the forced sterilization, but family planning officials appeared at his home that day, which was earlier than expected. He claimed that two of the six officials pushed him down to the wall and did not allow him to talk while the others dragged his wife and forcefully pushed her into a vehicle, taking her to be sterilized. Wu’s wife was sterilized later that day. Wu claimed that he did not leave China at that time because his children were so young.

Instead, Wu fled in 2001 due to the events underlying his religious persecution claim. Wu, the son of a preacher and himself a practicing Christian, testified that he was baptized in 1993 and that this was the “most important event in [his] life.” Admin. R. at 420. He began holding church gatherings, which grew to approximately thirty people, at his home in 1997. He claimed that in March 2001, public security officials came to his home and warned that the church gatherings were illegal and could not be held. Wu nevertheless continued to hold the church gatherings for three more weeks. But after learning through relatives that public security officials might come to his home to make an arrest, he and his wife fled to his in-laws’ home for one week. He testified that officials did in fact go to his home and, finding nobody there, broke into the door and destroyed objects in the home, including desks and chairs. Wu then left China on May 26, 2001.

Wu was questioned on cross-examination regarding an apparent discrepancy be *788 tween his written asylum application and his testimony about the alleged March 2001 events. In his application for asylum, Wu stated that police “tore down the place.” Id. at 802. He testified, though, that officials “broke into the door, and, then, they just destroyed objects there.” Id. at 409. He explained that he meant by his statement in his asylum application that the “door was destroyed” and when officials broke in, desks, chairs, and other objects were destroyed. Id. at 416.

Wu was further questioned about the lack of corroboration of his religious persecution claim in his supporting documentation, which included letters from his father and wife. The IJ noted that neither letter mentioned that Wu was a Christian, that Wu was baptized, or made any reference to public security officials coming to Wu’s home to make an arrest or destroying objects in his home. With respect to his father’s letter, which claimed alleged religious persecution experienced by Wu’s father at the hands of Chinese officials, Wu attempted to explain the absence of corroborating information by stating that perhaps his father just “neglected” to mention his baptism and did not mention officials coming to Wu’s house because Wu was now far away and his father did not want “this unusual thing [to] appear [before Wu] again.” Id. at 428. Additionally, although Wu testified that his wife knew he was baptized and a Christian and also knew about the church gatherings at their home and that public security officials had gone to their home in search of him, Wu explained that his wife’s letter did not address these matters because he requested information from her concerning her sterilization procedure only.

2. Immigration Judge’s April 13, 2005 Oral Decision

At the conclusion of the hearing, the IJ entered an oral decision denying Wu’s application for asylum, restriction on removal, and voluntary departure. Regarding Wu’s forced sterilization claim, the IJ found Wu’s inability to explain why he could not make arrangements for his wife to flee before family planning officials came to their home on August 29, 1998, indicated a lack of credibility. Further, neither Wu’s written application nor Wu’s wife’s letter referred to Wu being physically mistreated by family planning officials at the time his wife was taken for sterilization. Nor was it confirmed that the sterilization procedure was involuntary.

Regarding Wu’s religious persecution claim, the IJ found Wu’s written asylum application, stating that public security officials “tore down the place,” and his testimony, that officials “broke into the door,” inconsistent. The IJ found the inconsistency unresolved by Wu’s testimony and he was unable to resolve the inconsistency by looking to corroborating documentary evidence, because the evidence did not refer to the alleged break-in. Nor was Wu’s baptism corroborated by the supporting documentation. The IJ did not find Wu’s explanations for this lack of corroboration sufficient. The IJ concluded Wu’s religious persecution claim had been “most likely ... completely fabricated” to bolster the forced sterilization claim. Id. at 359. Given this, the IJ declined to give Wu the “benefit of the doubt” regarding the coerced nature of the sterilization procedure. Id. Further, in light of Wu’s credibility problems, the IJ found the letter from Wu’s wife, that was offered to authenticate the coerced nature of the sterilization, “inherently unreliable.” Id. Indeed, the IJ noted that there was a “strong likelihood that [Wu] and his wife acquiesced in the sterilization procedure.” Id. at 356.

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