                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-4-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4549




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                                                  NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 03-4549


                  XINWANG YANG,

                                Petitioner

                           v.

               *ATTORNEY GENERAL
              OF THE UNITED STATES,

                                 Respondent

                            (*Amended Pursuant to F.R.A.P. 43(c) )



         On Appeal from an Order entered before
           The Board of Immigration Appeals
                 (No. A 72-993-689)


       Submitted Under Third Circuit LAR 34.1(a)
                  February 15, 2005


Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges

                 (Filed March 4, 2005)




                      OPINION
AMBRO, Circuit Judge

       Xinwang Yang, a native and citizen of China, seeks review of a final order of

removal issued by the Board of Immigration Appeals (“BIA”). The BIA’s decision

affirmed an immigration judge’s (“IJ”) denial of Yang’s application for asylum and

withholding of removal.1 Because Yang was placed in deportation proceedings before

April 1, 1997,2 and the BIA issued the final order of deportation after October 30, 1996,

our jurisdiction arises under 8 U.S.C. § 1105a, as amended by the transitional rules for

judicial review in § 309(c)(4) of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 (Sept.

30, 1996).

       Yang raises two issues for review: (1) whether substantial evidence supports the

BIA’s affirmance of the IJ’s adverse credibility finding against him; and (2) whether he

may present a claim of ineffective assistance of counsel without complying with the

requirements of In re Lozada, 19 I. & N. Dec. 637 (BIA 1988). Because we write

exclusively for the benefit of the parties who are well acquainted with the facts and



       1
        Yang also applied for relief under the Convention Against Torture (United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United States by the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231)). However, he has not raised before us the
denial of relief under the Convention Against Torture.
       2
      Yang was placed in deportation proceedings on April 25, 1995, when an Order to
Show Cause was issued against him charging his deportability.

                                             2
procedural posture of this case, we recount only those matters relevant to the issues

before us.

       Section 208(b) of the INA, 8 U.S.C. § 1158(b), confers on the Attorney General

the discretion to grant asylum to an alien who is a “refugee.” An individual qualifies as a

refugee if he or she is “unable or unwilling” to return to his or her country “because of

persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” INA § 101(a)(42)(A), 8

U.S.C. § 1101(a)(42)(A).

       An applicant bears the burden of proving eligibility for asylum based on specific

facts and credible testimony. 8 C.F.R. § 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482

(3d Cir. 2001). In order to demonstrate a well-founded fear of persecution, an applicant

must satisfy three requirements: (1) he or she has a fear of persecution in his or her native

country; (2) there is a reasonable possibility that he or she will be persecuted upon return

to that country; and (3) the applicant is unwilling to return to that country as a result of his

or her fear. 8 C.F.R. § 208.13(b)(2)(i). An alien who establishes past persecution is

presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1).

       The eligibility threshold for withholding of removal is higher than for asylum. The

Attorney General must determine that repatriation would jeopardize the alien’s life or

freedom on account of one of the protected grounds. INA § 241(b)(3), 8 U.S.C.

§ 1231(b)(3). The applicant must therefore demonstrate a clear probability of



                                               3
persecution. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). Given this higher

standard, an applicant who does not qualify for asylum also will not qualify for

withholding of removal.

       We uphold factual findings in an immigration matter if they are “‘supported by

reasonable, substantial, and probative evidence on the record considered as a whole.’”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We

reverse a determination of the BIA/IJ if “the evidence not only supports [a contrary]

conclusion, but compels it.” Id. at 481 n.1 (emphasis omitted). Adverse credibility

determinations are reviewed as well for substantial evidence, Balasubramanrim v. INS,

143 F.3d 157, 161 (3d Cir. 1998), and we will uphold those findings unless “any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B).

       Yang’s first claim is that there was not substantial evidence to support the BIA’s

affirmance of the IJ’s finding of adverse credibility. Yang was denied asylum and

withholding of removal based on the IJ’s conclusion that he did not present credible

evidence to establish a well-founded fear of persecution. The IJ based his adverse

credibility finding on several factors: factual inconsistencies among the asylum

applications, differences between Yang’s testimony and the applications, Yang’s

admission of lying in court, and his admission of obtaining fraudulent documents.

       Yang submitted four asylum applications over the course of six years. The first



                                             4
three applications differed substantially from the fourth in that they said his wife was

sterilized in March of 1995 and that she and Yang did not have a second child. In his

fourth application, Yang stated that his second child was born in October of 1995 and his

wife was sterilized one month later. The dates of his marriage 3 and his daughter’s

birthday also varied among the applications. Yang’s explanation of these inconsistencies

is that the mistakes were made during his brief initial phone call with his lawyer and that,

when he discovered them, his lawyer told him the mistakes could not be changed.

       In an affidavit accompanying Yang’s fourth application, he said that he saw family

planning officials when they visited his house. Initially in his testimony, he claimed that

he did not see the officials. When presented with the affidavit, Yang maintained that he

did not see the officials. However, at the end of his testimony, Yang admitted that he did

see the officials on one of the several occasions they visited his house.

       During a hearing in April 2000, Yang testified that he read the applications before

he signed them and that all of the information was true, when in fact he knew it was not.

Before the IJ, Yang admitted that he lied during his testimony but claimed that his lawyer

coached him to lie and stick to the false application.

       Yang also admitted to the IJ that he obtained fraudulent documents to support his

application but never used them. He explained this by saying he needed dates changed on




       3
      The IJ noted that Yang’s applications and testimony also contradict a statement
Yang made to an immigration officer when apprehended in 1995 that he was single.

                                              5
his documents to reflect the incorrect dates in the applications.

       The IJ was not persuaded by Yang’s explanations of the inconsistencies among his

asylum applications. The implausibility of Yang’s testimony and his admission of lying

and obtaining fraudulent documents weighed heavily in the IJ’s decision that Yang was

not credible. The IJ also found that the documents Yang submitted were likely not

genuine for the same reasons that led him to find that Yang was not credible (and, in

addition, the documents were not certified). Put simply, substantial evidence supports the

adverse credibility finding against Yang.

       Yang’s second claim is that he should have been allowed to present a claim of

ineffective assistance of counsel without complying with the requirements of In re

Lozada, 19 I. & N. Dec. 637 (BIA 1988). Under Lozada, an alien must provide the

following three items before s/he may bring a claim for ineffective assistance of counsel:

(1) an affidavit by the alien setting forth the relevant facts, including the agreement with

counsel on the actions that would be taken and the representations to the alien with regard

to those actions; (2) evidence that counsel was informed of the allegations of ineffective

assistance and allowed an opportunity to respond; and (3) if a violation of “ethical or

legal responsibilities” is claimed, an indication that a complaint has been lodged with the

appropriate disciplinary authorities, or an explanation for why a complaint has not been

filed. Lozada, 19 I. & N. Dec. at 639. In Lu v. Ashcroft, we found these three

requirements to be a reasonable exercise of the Board’s discretion. 259 F.3d 127, 132 (3d



                                              6
Cir. 2001).

       Yang concedes that he has not complied with any of Lozada’s three requirements.

Furthermore, he cites no precedent to support excusing him from complying. In this

context, the only plausible action we can take is to reject Yang’s argument.

                                      * * * * *

       Because substantial evidence supports the Board’s affirmance of the IJ’s finding of

adverse credibility and because Yang did not comply with Lozada, we deny his petition

for review.




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