                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4979




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4979


                                      FE YUANG,

                                             Petitioner,

                                                v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

                                            Respondent.




        On Petition for Review of an Order of the Board of Immigration Appeals
                               (BIA No. A71-824-239)
                       Immigration Judge: Charles M. Honeyman


                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 2, 2007

   Before: BARRY and ROTH, Circuit Judges, and IRENAS,* Senior District Judge.

                                  (Filed April 12, 2007)


                                       OPINION




   *
    Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.

                                            1
IRENAS, Senior United States District Judge.

       Petitioner Fe Yuang (“Yuang”) seeks review of a decision of the Board of

Immigration Appeals (the “Board”) affirming an Immigration Judge’s (“IJ”) decision

denying his application for asylum, withholding removal, and protection under the United

Nations Convention Against Torture (the “CAT”). This Court reviews the Board’s

decision denying Yuang’s application under the substantial evidence standard.1

                                             I.

       The Petitioner, Yuang, is a 42-year-old native and citizen of the People’s Republic

of China. Yuang illegally entered the United States on or about September 13, 1992, and

was charged with excludability pursuant to the Immigration and Nationality Act, 8 U.S.C.

§ 1182(a)(5)(A)(i) and (a)(7)(A)(i)(I). Yuang was subsequently detained and a hearing

was held, where an IJ sustained the excludability charges.

       Yuang filed a Request for Asylum on or about June 22, 1993, pursuant to 8 U.S.C.

§ 1158(a)(1). On November 22, 1994, IJ Ferris held a hearing and rendered an oral

decision holding that Yuang had not met his burden of establishing a well-founded fear of




   1
     This Court reviews a Board decision to deny an application for asylum, withholding
removal, and protection under the CAT under the substantial evidence standard. Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)(citing Abdille v. Ashcroft, 242 F.3d 477, 483
(3d Cir. 2001)). This Court must review the factual determination as to “[w]hether an
asylum applicant has demonstrated past persecution or a well-founded fear of future
persecution” under the substantial evidence standard. Id. “The Court will uphold the
agency's findings of fact to the extent that they are supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Id.

                                             2
persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion. Yuang testified that he feared persecution if he returned to

China because of his outspoken opposition to the country’s birth control policies and his

refusal to undergo sterilization. Yuang testified that he was detained for two months by

Chinese authorities before escaping from custody.

       The IJ noted that Yuang’s testimony was not fully credible given the conclusory

nature of his statements concerning his fear of persecution and the failure of the

authorities to sterilize him during his two month period of custody. The IJ also found

discrepancies between Yuang’s testimony and his Request for Asylum concerning his

employment, and whether he ever went into hiding after escaping from custody.

Additionally, Yuang stated in his sworn affidavit taken by an INS agent on September 13,

1992, that he decided to leave China and come to the United States not because of his fear

of persecution but because the “US is a capitalist well-developed country.” The affidavit

contained the question, “Are you wanted in your country or any other country by the

police or any other government agency?,” to which Yuang answered, “No.” (Supp. Joint

Appx. at 427).

       Yuang timely appealed the decision and, on November 30, 2000, the Board

affirmed the IJ’s decision.2 The Board adopted the IJ’s rationale in its opinion, noting




   2
     The reason, if any, for the six-year gap between the IJ’s decision and the Board’s
decision on appeal is not apparent from the record.

                                             3
that Yuang failed to satisfy his burdens of proof and persuasion to establish eligibility for

asylum and withholding of exclusion and deportation. Yuang did not file an appeal of the

Board’s decision, but instead filed a motion to reopen exclusion proceedings under the

CAT on February 20, 2001. On July 20, 2001, the Board reopened and remanded

Yuang’s case specifically for consideration of relief relative to the CAT claim. Yuang

did not appeal the Board’s November 30, 2000, decision and the Board specifically

remanded “for the sole purpose of determining whether it is ‘more likely than not’ that the

applicant faces torture if he is returned to China because he departed the country illegally

and with the aid of a smuggler.” (Appx. Vol. 1 at 294-95).

       On July 29, 2004, IJ Honeyman held that Yuang “has not proven that it is more

likely than not that he would be tortured by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity for the

government of the People’s Republic of China.” (Id. at 50). The IJ noted that Yuang

failed to satisfy the requirements for relief under the CAT.3 Yuang testified that he would

be assessed a large fine for violating China’s travel control policies by illegally fleeing

the country. Nevertheless, the IJ found no evidence to support the allegations that any

mistreatment Yuang may experience if deported to China would qualify as “torture”



   3
     To qualify for relief under the CAT, the petitioner has the burden of proving “that it
is more likely than not that [he or] she will be tortured by the government or with its
acquiescence upon removal to a particular country.” Chen v. Gonzales, 434 F.3d 212,
216 (3d Cir. 2005). The regulations define torture as “an extreme form of cruel and
inhuman treatment.” 8 C.F.R. § 208.18(a)(2).

                                              4
under the CAT. On October 14, 2005, the Board affirmed the IJ’s decision without

writing a separate opinion.

                                              II.

         This Court has jurisdiction to review final orders of the Board of Immigration

Appeals. See 8 U.S.C. § 1252; Ponce-Levia v. Ashcroft, 331 F.3d 369, 371 (3d Cir.

2003).

                                              III.

         The issue before this Court is whether substantial evidence exists to support the

Board’s affirmance of the IJ’s denial of Yuang’s application for asylum, withholding

removal, and protection under the CAT.

         If the Board issues a separate opinion as it did on November 20, 2000, this Court

reviews the final decision of the Board. See Abdulai v. Ashcroft, 239 F.3d 542, 548-49 &

n.2 (3d Cir. 2001). If the Board affirms the IJ’s decision without a separate opinion, as it

did on October 14, 2005, this Court reviews the IJ’s decision as the final administrative

order. See Dia v. Ashcroft, 353 F.3d 228, 244-45 (3d Cir. 2003)(en banc).

“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary . . .” 8 U.S.C. § 1252(b)(4)(B). This Court may

not disturb the administrative findings of fact unless any reasonable factfinder would be

compelled to conclude to the contrary. See INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). “Adverse credibility determinations based on speculation or conjecture, rather



                                               5
than on evidence in the record, are reversible.” Gao, 299 F.3d at 272. This Court should

defer to the IJ’s credibility determination unless such findings “are not reasonably

grounded in the record.” Dia, 353 F.3d at 249.

       To be eligible for asylum, the Secretary of Homeland Security or the Attorney

General must determine that the alien qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1)(A).

“Refugee” is defined as “any person who is outside any country of such person’s

nationality . . . who is unable or unwilling to return to . . . that 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.” § 1101(a)(42)(A). The

alien has the burden of providing both subjective and objective evidence to support “a

well-founded fear of future persecution.” Gao, 299 F.3d at 272.

       Withholding of deportation is available under 8 U.S.C. § 1231(b)(3)(A) “if the

Attorney General decides that the alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nationality, membership in a particular social

group, or political opinion.” The alien must show that it is “more likely than not” that he

will be persecuted upon return to his home country. INS v. Cardoza-Fonseca, 480 U.S.

421, 423 (1987); see also 8 C.F.R. § 208.16(b)(2). The alien must satisfy a more

stringent standard to qualify for withholding of deportation than to demonstrate eligibility

for asylum; therefore, if the alien’s application for asylum is denied, he would not qualify

for withholding of deportation. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991).



                                               6
       Article 3 of the CAT, to which the United States became a signatory in 1999, states

that “[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State

where there are substantial grounds for believing that he would be in danger of being

subjected to torture.” The alien bears the burden of proving that “it is more likely than

not that [he or] she will be tortured by the government or with its acquiescence upon

removal to a particular country.” Chen, 434 F.3d at 216. The alien has the burden of

supporting his claim through credible testimony. Ghebrehiwot v. Attorney Gen., 467 F.3d

344, 352 (3d Cir. 2006).

       After reviewing the record, this Court is satisified that the IJ’s credibility

determination on which it based its decision to deny Yuang’s asylum application and

withholding of removal is supported by substantial evidence and is reasonably grounded

in the record.

       First, Yuang made no mention of a fear of persecution or torture in his sworn

affidavit taken by an INS agent on September 13, 1992. Rather, he stated that he came to

the United States because the “U.S. is a capitalist well-developed country.”

       In addition, Yuang argues that he fears that Chinese officials will force him to

undergo sterilization upon his return to China. However, this argument is undermined by

the fact that the government could have sterilized him during his alleged custody of two

months, but did not do so.

       Finally, Yuang’s testimony at the hearing on November 22, 1994, contained



                                               7
several inconsistencies related to the length of his alleged detention and the number of

children he has. His testimony concerning his escape from the alleged detention was also

inconsistent with his sworn affidavit.

       This Court is also satisfied that Yuang failed to prove that it was more likely than

not that he would be tortured upon return to China, a requirement for protection under the

CAT. Yuang testified at the July 29, 2004, hearing that he faced a fine and detention

upon return. Even assuming the testimony is fully credible,4 such punishment does not

rise to the level of torture as defined in the CAT. See Wang v. Ashcroft, 368 F.3d 347,

350-51 (3d Cir. 2004). Potential fines and imprisonment for violation of China’s travel

policies do not qualify as an extreme form of cruel and inhuman treatment that the CAT

was designed to prevent. See Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002).

                                           IV.

       For the reasons set forth above, the Petition for Review is denied.




                                              8



   4
     Yuang did not provide any notices or arrest warrants related to his claim of
persecution for violation of the Chinese travel policies, but stated that his fears were
based on speculation and rumors.
