                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-27-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4207




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 06-4207

                                FENG CHENG WANG,

                                            Petitioner,

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                            Respondent.

                        Petition for Review of An Order of the
                             Board of Immigration Appeals
                                   (No. A70-122-460)

                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                  March 27, 2008

             Before: McKEE, RENDELL and TASHIMA * , Circuit Judges

                                 (Filed: June 27, 2008 )

                                       OPINION

TASHIMA, Circuit Judge.

      Feng Cheng Wang, a native and citizen of China, petitions for review of a Board

of Immigrations Appeals (“BIA”) decision, upholding the adverse credibility finding of

the Immigration Judge (“IJ”) and ordering him removed. For the reasons that follow, we


      *
      Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
will deny the petition for review.2

                                             I.

       Because we write primarily for the benefit of the parties, we need not set forth the

factual or procedural history except as necessary to inform our discussion. Wang is a

fifty-year-old native of China. He entered the United States in 1993, but his wife and

four children remain in China. He claims to be a victim of his country’s coercive family

planning policy and to fear persecution due to his opposition to that policy. His sister

and brother-in-law were both forcibly sterilized. Wang alleges that his wife was

sterilized in 1997 and that she has gone into hiding to avoid fines related to violation of

the district’s two-child policy.

       In 1995, an IJ found Wang not credible and therefore denied his application for

asylum and withholding of deportation, but granted Wang voluntary departure. After an

unsuccessful appeal, Wang remained in the United States in violation of the IJ’s

voluntary departure order. In 2002, the BIA granted Wang’s motion to reopen his case,

due to a change in the law surrounding asylum claims based on population control

policies. In 2005, an IJ again found Wang not credible and ordered him deported. The

BIA dismissed Wang’s appeal, finding that the IJ’s adverse credibility determination was

not clearly erroneous. The BIA reasoned that Wang had failed to provide any



       2
        We have jurisdiction over orders of removal under 8 U.S.C. § 1252(a). Abdulai
v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001).

                                             2
explanation rebutting the finding by the American consulate general’s investigative

report that the sterilization certificate and illness certificate Wang submitted were

fraudulent. The BIA further concluded that, because Wang failed to meet the lower

burden of proof required for an asylum claim, he also fell short of meeting the

heightened standard required for withholding of removal and for relief under the

Convention Against Torture.

         “Where, as here, the BIA issues a decision on the merits and not simply a

summary affirmance, we review the BIA’s, and not the IJ’s, decision.” Chavarria v.

Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We must uphold the BIA’s determination if

it is “supported by reasonable, substantial, and probative evidence on the record

considered as a whole,” and we will reverse only if Wang’s evidence would compel a

reasonable factfinder to determine that Wang has a well-founded fear of persecution in

his home country. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation

marks omitted). “[A]liens have the burden to establish their eligibility for asylum

through credible testimony.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.

2003).

         The BIA found that, even if the arguments raised by Wang regarding the adverse

credibility determination were accepted, the adverse credibility determination was not

clearly erroneous because of the fraudulent documents submitted by Wang pertaining to




                                              3
events at the heart of his claim.3 “We look at an adverse credibility determination to

ensure that it was ‘appropriately based on inconsistent statements, contradictory

evidences, and inherently improbable testimony . . . in view of the background evidence

on country conditions.’” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (quoting In

re S-M-J- (Interim Decision), 21 I. & N. Dec. 722 (BIA 1997)) (ellipsis in original). The

BIA’s adverse credibility determination is supported by substantial evidence, including

the unrebutted finding that Wang submitted fraudulent documents in support of his claim

and the numerous inconsistencies between Wang’s testimony and his affidavits.

                                            II.

       For the reasons set forth above, we will deny Wang’s petition for review.




       3
       Because Wang’s application was filed before the REAL ID Act’s effective date of
May 11, 2005, the Act’s provisions regarding credibility determinations, codified at 8
U.S.C. § 1158(b)(1)(B), do not apply to this case.

                                             4
