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


5-16-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1682




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Yang v. Atty Gen USA" (2005). 2005 Decisions. Paper 1190.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1190


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 04-1682


                  DING MING YANG

                                 Petitioner

                            v.

               ALBERTO GONZALES,
     Attorney General of the United States of America

                                 Respondent



             Petition for Review of an Order
           of the Board of Immigration Appeals
                    (No. A77-659-337)



       Submitted Under Third Circuit LAR 34.1(a)
                  Date: May 13, 2005

Before: SLOVITER, FISHER and ALDISERT, Circuit Judges

                  (Filed: May 16, 2005)



               OPINION OF THE COURT



                            1
ALDISERT, Circuit Judge.

       Petitioner Ding Ming Yang, a native and citizen of China, seeks review of a final

order of removal issued by the Board of Immigration Appeals (“BIA”) on February 27,

2004. The order affirmed the Immigration Judge’s (“IJ’s”) adverse credibility finding and

its decision to deny Yang’s request for asylum, withholding of removal and protection

under the Convention Against Torture (“CAT”). We have jurisdiction to review the

BIA’s order pursuant to 8 U.S.C. § 1252. We will deny the petition.

                                             I.

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.

                                             II.

       To establish that he or she is a refugee eligible for asylum, a petitioner must

demonstrate an inability or unwillingness to return to his or her country of origin

“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.” 8

U.S.C. § 1101(a)(42)(A)(2000). A petitioner for asylum bears the burden of supporting

the claim through credible testimony. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

“The testimony of the applicant, if credible, may be sufficient to sustain the burden of

proof without corroboration.” 8 C.F.R. § 1208.13(a) (2004).


                                              2
       An adverse credibility finding should be supported by specific, cogent reasons for

the disbelief in petitioner’s testimony. Balasubramanrim v. INS, 143 F.3d 157, 161-162

(3d Cir. 1998). When the BIA discusses some of the IJ’s adverse credibility findings and

leaves others untouched, “the scope of the Court’s review [] includes both the BIA’s

decision and the portion of the IJ’s decision that was left unchallenged in front of the

BIA.” Douglas v. Ashcroft, 374 F.3d 230, 234 (3d Cir. 2004). We review an adverse

credibility finding under the substantial evidence standard, meaning that we will uphold

findings “to the extent that they are ‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” Balasubramanrim, 143 F.3d at 161

(quoting INS v. Elias-Zacarias, 502 U.S. 478 (1992)). The BIA will not be reversed

merely because the Court disagrees with the BIA’s evaluation of the facts, but will be

affirmed if the BIA’s conclusion is substantially reasonable. Dia v. Ashcroft, 353 F.3d

228, 249 (3d Cir. 2003) (citing El Moraghy v. Ashcroft, 331 F.3d 195, 202 (3d Cir.

2003)). Deference to an adverse credibility finding, however, “is not due where findings

and conclusions are based on inferences or presumptions that are not reasonably

grounded in the record.” Id.

       Here, we must determine whether the IJ, as affirmed by the BIA, erred in

determining that the testimony of Yang was not credible. We will deny the petition for

review.

       The IJ’s adverse credibility findings were based on a number of factors. The IJ


                                              3
noted many contradictions between Yang’s testimony and the affidavit submitted to the

court. For example, Yang testified that his wife only saw the doctor who was involved

with the IUD insertion once, while his statement says that she saw him twice. Yang

testified that he was out farming when the birth control officials came to take his wife to

have an abortion, while his statement claims that he was at home. In addition, although

Yang stated that there was compulsory insertion of an IUD in his wife, there was no

documentary evidence that an IUD was even inserted. The alleged abortion certificate

did not mention an IUD.

       The remaining points of contradiction concern the Falun Gong claim. Yang began

practicing Falun Gong, which was illegal in China, to improve his physical condition.

Yang testified that his neighbor reported his participation in the movement to the

authorities. There was testimonial conflict over whether it was Yang, or his wife, who

had a problem with the neighbor. At the hearing, Yang failed to adequately explain how

his group of Falun Gong could publicly and confidently exercise weekly for two years in

the village square, in full sight of everyone passing by, and evade notice of the local

police. The IJ found Yang’s explanation that the police did not patrol early in the

morning when they exercised incredible. The BIA summarized:

              The respondent also claimed eligibility based on alleged
              practice of Falun Gong. The respondent’s testimony, even if
              credible, does not reflect the experience of past persecution as
              a result of his practice of Falun Gong. Furthermore, the
              Immigration Judge considered the respondent’s testimony
              that, since arriving in the United States, he has ‘never again’

                                             4
              practiced Falun Gong whether with others or alone.

(Dec. of BIA at 2.)

       Yang contends that the adverse credibility findings were based on inferences,

presumptions not reasonably grounded in the record, speculation and conjecture. Yang

attempts to explain all of the inconsistencies by pointing to more evidence in the record

and reasonable explanations as to why Yang contradicted himself in certain instances.

Because most of the IJ’s findings were based on actual inconsistencies and

implausibilities in the record supported by specific, cogent reasons, we conclude that

there is substantial evidence to support the BIA’s and IJ’s adverse credibility findings.

                                         *****

       We have considered all arguments raised by the parties and conclude that no

further discussion is necessary. We hold that substantial evidence supported the IJ’s

adverse credibility findings and the BIA’s order.

       The petition for review will be denied.




                                             5
