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


6-5-2009

Liang-Yan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2410




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-2410
                                     ___________

                                  FEI LIANG-YAN,
                                                       Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A200-032-279 )
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 5, 2009
               Before: MCKEE, NYGAARD and ROTH, Circuit Judges

                             (Opinion filed June 5, 2009 )
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Fei Liang-Yan, a native and citizen of the People’s Republic of China, petitions for

review of an order of the Board of Immigration Appeals. We will deny the petition.

      Liang-Yan entered the United States without inspection on July 21, 2005. The
government served him with a Notice to Appear on July 25, 2005, charging him as being

present without inspection under INA § 212(a)(6)(A)(I). Liang-Yan conceded

removability and applied for political asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). He asserts that he will be harmed because of his

practice of Falun Gong and his support of individuals who practice Falun Gong.

       Liang-Yan testified that the Chinese government outlawed Falun Gong in 1999,

and that he opposed the government’s treatment of Falun Gong practitioners. On May 9,

2001, he was talking to a school friend at the park, and he expressed his disdain for the

government’s ban on the practice of Falun Gong. Unnamed people reported his remarks

to the police, and later that day, two police officers came to Liang-Yan’s house to arrest

him. They took him to a police station and pressured him to admit wrongdoing. Liang-

Yan refused. The police officers beat him with their fists and kicked him. They tied his

hands and legs together and detained him for four hours. He told the police that he

supported Falun Gong, and the police warned him that if he continued to do so, they

would jail him for at least six months. Liang-Yan was released and went home. He could

not rise out of bed for days.

       Liang-Yan also testified that a different friend stayed with him at his home for

about 20 days in 2004 in order to hide from the government. During his stay, his friend

taught Liang-Yan a few basic Falun Gong exercises. They would practice in Liang-Yan’s

second floor apartment, by a glass window. In December 2004, the government came to



                                             2
Liang-Yan’s house, looking for his friend. Government agents broke down the door and

arrested his friend while Liang-Yan was at work. When Liang-Yan returned from work

that evening, his neighbor told him that the police also wanted to arrest him. Liang-Yan

fled to his aunt’s house. During his stay, the police visited his parents’ home every two or

three days, asking them to give him up. After more than six months, Liang-Yan left

China because he “couldn’t take it anymore.” (IJ op., 5.) Liang-Yan asserted that he has

started practicing Falun-Gong twice a week since arriving in the United States.

       The IJ denied relief because he did not believe Liang-Yan’s testimony. The IJ

based his adverse credibility determination on petitioner’s vague testimony and his lack of

detail, as well as petitioner’s “evasive” demeanor and his discomfort in testifying. (IJ

op., 11.) The BIA reviewed the IJ’s adverse credibility finding for clear error and found

none. The BIA noted petitioner’s vague and contradictory testimony regarding whether

he practiced Falun Gong, and the implausibility of his claim that his friend taught him

basic Falun Gong exercises during a 20-day visit and his assertion that they practiced in a

room with a window from which they could be seen. (Id.)

       We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.

§ 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]e review the

IJ’s opinion to the extent the BIA relied upon it.” Lin v. Att’y Gen., 543 F.3d 114, 119

(3d Cir. 2008). We will uphold an adverse credibility determination under the substantial

evidence standard “‘unless any reasonable adjudicator would be compelled to conclude to



                                             3
the contrary.’” Id. (internal citation omitted).

       In his petition for review, Liang-Yan argues that the IJ’s adverse credibility lacks a

basis in substantial evidence because the IJ did not adequately describe Liang-Yan’s

demeanor or discuss factors such as the position in which he sat and his facial expressions

during the hearing.

       We disagree. The IJ based his adverse credibility determination not only on Liang-

Yan’s demeanor, but on his lack of specificity and ambiguities in his testimony regarding

whether he merely supported Falun Gong practitioners or whether he practiced Falun

Gong. The IJ and the BIA also found it implausible that petitioner would practice an

“outlawed type of yoga” in front of a window, in plain view of his neighbors. (IJ op., 12;

see BIA op.)

       Liang-Yan testified that he practiced Falun Gong with his friend every night after

dinner in front of a window. (A.R. 120.) He argues in his petition for review that he had

a “reasonable expectation of privacy” in his home, such that he did not expect others to

see him, despite his engaging in outlawed activity in plain view. (Pet.’s Br. at 18.) In

light of Liang-Yan’s prior testimony regarding his fear of arrest or detention on account

of his support of Falun Gong, we do not believe that the IJ unreasonably doubted the

plausibility of this testimony. A reasonable factfinder would not be compelled to

conclude that Liang-Yan was credible. See Zheng v. Gonzales, 417 F.3d 379, 382 (3d

Cir. 2005). Accordingly, Liang-Yan has not met his burden of proof for asylum,



                                               4
withholding of removal or CAT relief. For the foregoing reasons, we will deny the

petition for review.




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