Yan v. Mukasey

04-4700-ag
Yan v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

_____________________

August Term, 2006
(Argued: August 8, 2007 Decided: December 4, 2007)
Docket No. 04-4700-ag

_____________________

WENSHENG YAN,
Petitioner,

-v.-

MICHAEL B. MUKASEY, United States Attorney General,*
Respondent.
_______________________

BEFORE: CALABRESI, RAGGI, HALL, Circuit Judges.

Petition for review of a final decision of the Board of Immigration Appeals affirming the

denial by an Immigration Judge of the petitioner’s application for asylum, withholding of

removal, and relief pursuant to the Convention Against Torture.

Petition for review denied.

STEWART ALTMAN, Mineola, NY (Liu Yu, Law Offices of Yu & Associates, New
York, NY, on the brief), for Petitioner.

MICHAEL J. EDNEY , U.S. Department of Justice, Office of Legal Counsel,
Washington, D.C. (Arnold B. Corsmeier, Judy K. Hunt, Assistant United States
Attorneys, for Paul I. Perez, United States Attorney, Middle District of Florida,
Jacksonville, Florida, on the brief), for Respondent.

*
Attorney General Michael B. Mukasey is substituted for former Attorney General John
Ashcroft pursuant to Fed. R. App. P. 43(c)(2).
PER CURIAM:

Petitioner Wensheng Yan, a native and citizen of China, seeks review of the August 4,

2004 order of the Board of Immigration Appeals (“BIA”) affirming the May 8, 2003 decision of

Immigration Judge (“IJ”) Michael W. Straus denying petitioner’s application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”). In re

Wensheng Yan, No. A79 431 371 (B.I.A. Aug. 4, 2004), aff’g No. A79 431 371 (Immig. Ct.

Hartford May 8, 2003). Yan argues that the IJ’s adverse credibility finding was not supported by

substantial evidence in the record. Specifically, Yan takes issue with the IJ’s finding that his

story was inherently implausible, asserting that the actions found to be implausible did not go to

the heart of his asylum claim. He also argues that the IJ failed to explain why those actions were

implausible, and that the IJ impermissibly interpreted those actions from his own point of view.

We conclude that the IJ’s finding of inherent implausibility is supported by substantial evidence

in the record.

I. Background

Yan entered the United States in December 2001 after fleeing from China. He was

served with a notice to appear in January 2002, and at an April 2002 hearing before an IJ he

conceded removability and filed an application for asylum, withholding of removal, and CAT

relief. Yan’s application for relief asserted that he feared that he would be persecuted if he

returned to China because he had violated China’s family planning policy and had been

threatened with forced sterilization. He explained that in October 1999, after the birth of his and

his wife’s first child, local government officials had forcibly inserted into his wife an intrauterine

device (“IUD”) which she later had removed by a private doctor. Thereafter, he claimed, his

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wife became pregnant again, and local authorities forcibly aborted the pregnancy. The local

officials then imposed a 10,000 yuan fine on Yan and his wife and ordered Yan to be sterilized.

He refused to submit to sterilization.1 Yan claimed that the local officials reported his refusal to

his employer, and his employer “strictly criticized [him]” and urged him to pay the fine and to

submit to sterilization. Add. to I-589. Faced with these threats, he asserted, he had no option but

to leave China.

At a May 2003 hearing before IJ Straus, Yan’s testimony on direct examination was

consistent with the events described in his application. He elaborated in his testimony that after

his wife’s abortion on July 17, 2001, she was very tired and bleeding, and he took ten days off of

work and stayed with her at their home. After direct and cross-examination, the government

attorney and the IJ questioned Yan about the Chinese passport he had submitted into evidence,

which was issued to Yan on June 15, 2001. Yan confirmed that he had gotten the passport before

his wife’s abortion because he planned to travel to Thailand. He also testified that he was

earning 800 yuan per month before he left China and that he had no other job. Yan stated that on

July 4, 2001, he applied for a visa to go to Thailand because he “[w]ant[ed] to go to Thailand for

traveling,” and that he was able to pay for the 2,900- yuan cost of the trip out of his father’s

retirement savings. 5/8/03 Tr. at 60. Yan repeated that the purpose of the Thailand trip, which

lasted four days—from July 28, 2001, to August 1, 2001—was “[j]ust travel for vacation with the

1
This Court’s decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
2007) (en banc) (holding that an applicant cannot secure asylum based on his or her spouse’s
persecution under China’s family planning policy absent some evidence of the applicant’s own
resistance to the policy), does not foreclose Yan’s application because he claims that he
personally refused to submit to sterilization. Nevertheless, because the alleged persecution of
Yan’s wife was the predicate for his alleged resistance to sterilization, the IJ’s implausibility
finding as to that spousal persecution reasonably extended to Yan’s personal resistance.

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tour group.” Id. at 61. When the IJ asked why he would go on a vacation after his wife had just

had an abortion, Yan explained: “We have to pay in advance to buy the ticket to pay for the trip.

Arrangement was made a long time ahead, so I had to go.” Id. The IJ commented, “if my wife

was sick in bed, I wouldn’t be going traveling to other countries.” Id. at 61-62. Yan countered

that the ticket was not refundable.

The IJ then questioned Yan about two trips to Cuba—one only eight days after his return

from Thailand and one in October 2001. Yan testified that the first trip cost 5,000 yuan and that

he left China on August 9, traveled through France, stayed in Cuba for three days, and returned to

China on August 15 at Guangzhou Airport. The IJ asked Yan why, if he was afraid the

government was going to sterilize him, he returned to China. Yan explained that he had to return

to China because he ran out of money. Yan also testified that he went to Cuba again in October

for a month so that he could try to apply for asylum in the United States, but he returned to China

through the Guangzhou Airport because his plan fell through. Yan later claimed that the purpose

for the first trip to Cuba was “travel reasons” and not to seek asylum.

In an oral decision after the hearing, the IJ found Yan’s testimony not credible for the

following reasons: (1) it was improbable that Yan would take the July vacation trip to Thailand

that cost him 2,900 yuan, which was the equivalent of over three months’ salary, and the August

vacation trip to Cuba that cost him 5,000 yuan, which was the equivalent of over six months’

salary; (2) Yan’s behavior—traveling to Thailand ten days after the abortion, when his wife was

weak and bleeding, simply because he had paid for the trip in advance—was “inconsistent with

the fact that his wife had a forced abortion”; (3) it was inconsistent with the circumstances (“out

of character”) that Yan’s first trip to Cuba in August, which Yan testified was for “travel

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reasons,” occurred after he had received a letter threatening sterilization and a 10,000-yuan fine;

(4) Yan’s asylum application stated that he had gone into hiding after he had received the

threatening letter, yet he spent a large amount of time outside the country on trips; (5) Yan’s

multiple return trips to China took him through Guangzhou Airport, where his identity would

likely be checked; (6) Yan testified that he had no problems with his employer, yet his

employer’s dismissal notice was predicated on Yan’s failure to undergo sterilization and pay a

fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many

individuals from Fujian Province were able to have extra children if they paid a fine. In re

Wensheng Yan, No. A79 431 371 (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s

decision without opinion. In re Wensheng Yan, No. A79 431 371 (B.I.A. Aug. 4, 2004).

Yan petitions for review of the BIA’s order.

II. Discussion

A. Standard of Review

Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R.

§ 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g.,

Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d

155, 159 (2d Cir. 2004). This Court reviews the agency’s factual findings under the substantial

evidence standard, treating them as “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v.

INS, 386 F.3d 66, 73 & n.7 (2d Cir. 2004), overruled in part on other grounds, Shi Liang Lin v.

U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en banc). However, we will vacate and

remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently

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flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005). In this case,

the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s

finding that the petitioner’s account of persecution was implausible. This Court generally will

not disturb adverse credibility determinations that are based on “specific examples in the record

of inconsistent statements . . . about matters material to [an applicant’s] claim of persecution, or

on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou

Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted).

B. Inherently Implausible Testimony

It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ

is entitled to consider whether the applicant’s story is inherently implausible. See Ming Xia Chen

v. BIA, 435 F.3d 141, 145 (2d Cir. 2006). While we have held that a finding of inherent

implausibility must be based on more than “bald speculation or caprice,” Zhou Yun Zhang, 386

F.3d at 74, we have also recognized that “the line between reasonable inference-drawing and

impermissible speculation is necessarily imprecise,” Guo-Le Huang v. Gonzales, 453 F.3d 142,

147 (2d Cir. 2006); accord Ming Xia Chen, 435 F.3d at 145 (acknowledging there is “no way to

apply precise calipers to all [implausibility] findings”). Such imprecision is, perhaps, to be

expected when testimony is reviewed by an appellate court without the benefit of witness

demeanor. See Zhou Yun Zhang, 386 F.3d at 73 (observing that a “fact-finder who assesses

testimony together with witness demeanor is in the best position to discern” credibility). We are

not, however, without any principled guidance in reviewing implausibility findings. In Ming Xia

Chen, this Court drew a useful analogy to the standard of review set forth in Fed. R. Civ. P.

52(a):

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 In the somewhat similar context of reviewing bench trial findings
of a district judge under the clearly erroneous standard, see Fed. R.
Civ. P. 52(a), we have been authoritatively instructed to uphold a
finding unless we are left with the definite and firm conviction that
a mistake has been committed.

435 F.3d at 145 (internal quotation marks omitted). Such a conviction cannot be formed in this

case. The IJ’s finding is tethered to record evidence, and there is nothing else in the record from

which a firm conviction of error could properly be derived. Cf. Siewe v. Gonzales, 480 F.3d 160,

169 (2d Cir. 2007) (deferring to the IJ’s adverse credibility determination based in part on the

“inferential leap” that an arrest warrant submitted in support of an asylum application was

inauthentic because of errors on the warrant, the physical state of the warrant and other

characteristics of the warrant, and reasoning that such an inference was “tethered to the

evidentiary record”).

Here, Yan asserts that the IJ failed to provide an adequate explanation for the

implausibility finding, impermissibly evaluated Yan’s testimony from the IJ’s own point of view,

and found Yan’s entire claim implausible based on actions not directly related to the claim of

persecution. We disagree.

First, the IJ’s explanation here was more than adequate. The IJ explained in detail which

of Yan’s actions (and explanations for his actions) caused the IJ to find the testimony as a whole

improbable. The IJ was not required to explain in precise detail what made each identified act

implausible. Cf. Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (explaining that this

Court requires only “a certain minimum level of analysis from the IJ and BIA opinions denying

asylum” in order for judicial review to be meaningful). Moreover, the IJ developed the record

such that the reasons for his incredulity are evident. For example, the IJ probed Yan about the

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reason why he traveled to Thailand so soon after his wife’s purportedly forced abortion. In

context, this trip casts doubt on the existence of a forced abortion. There was no reason to think

that Yan was simply insensitive to his wife’s alleged traumatic ordeal. To the contrary, Yan’s

testimony about the vacation came after he implied that he had been concerned about his sick and

bleeding wife—so concerned, in fact, that he stayed home with her for ten days after the abortion.

Second, this inconsistency refutes any indication that the IJ impermissibly imposed his

own mores on Yan’s behavior. We read the IJ’s isolated comment at the hearing that he would

not travel to other countries if his wife were sick in bed as no more than an expression of his

incredulity at the story Yan was telling him. Any reasonable person would understand why the IJ

here concluded that it is implausible that a man whose wife had just undergone the physical and

emotional trauma of a forced abortion would, only days later, travel alone to another country to

participate in a vacation with a tour group for no asserted purpose other than pleasure. See

Siewe, 480 F.3d at 168-69 (“The speculation that inheres in inference is not ‘bald’ if the

inference is made available to the fact-finder by record facts, or even a single fact, viewed in the

light of common sense and ordinary experience.”). Yan explained that he had paid for the ticket

before the abortion, and that the money was not refundable. But just a few days later, Yan took

an even more expensive vacation trip to Cuba. This trip took place right after authorities had

supposedly imposed a significant fine for the aborted pregnancy and threatened Yan with

sterilization. By traveling he necessarily would have subjected himself to detection when leaving

and entering Guangzhou Airport.2 The IJ permissibly relied on this testimony and other record

2
No specific evidence of coordination between Chinese customs and birth control
officials was required to allow the IJ to conclude that it was implausible that a person seeking to
flee from repression that could result in his sterilization would have repeatedly put himself in

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facts to draw the inference that Yan’s story was implausible. Cf. id. at 167. The fact that there

could conceivably be a scenario in which Yan’s behaviors would be deemed plausible will not

compel this Court to label unreasonable an IJ’s finding of implausibility with respect to that

alleged course of behavior. It is not this Court’s task to “explain away the improbabilities” in

petitioner’s testimony. Zhou Yun Zhang, 386 F.3d at 74.

Finally, the IJ’s finding of inherent implausibility does bear a legitimate nexus to the

conclusion that Yan’s claim of persecution as a whole was not credible. See Secaida-Rosales v.

INS, 331 F.3d 297, 307 (2d Cir. 2003) (holding that an IJ’s adverse credibility finding must be

based on “specific, cogent” reasons that bear a “legitimate nexus” to the credibility of the

applicant’s claim of persecution). The implausibility of Yan’s testimony that he took two

expensive vacations while (a) he earned only a modest salary and supported an extended family,

(b) his wife lay ill from the traumatic experience of a forced abortion, and (c) Yan himself was

wanted by the authorities for evading mandatory sterilization and thus risked identification and

capture during those travels, had everything to do with Yan’s claim that he was persecuted in the

past and that he fears future persecution. The accounts of these vacations, in the context of the

record as a whole, raise serious doubts as to whether Yan’s wife, and Yan himself, were ever

subjected to persecution. We thus defer to the IJ’s adverse credibility finding, which constitutes

substantial evidence to support denial of relief from removal. See Zhou Yun Zhang, 386 F.3d at

79.3

situations where he encountered legal authorities checking his identity and, possibly, his illegal
status.
3
In finding Yan’s testimony incredible, the IJ did identify two discrepancies that might
well have been reconciled upon further inquiry: (1) a purported inconsistency between Yan’s

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 III. Conclusion

For the foregoing reasons, the petition for review is denied. Petitioner’s pending motion

for a stay of removal is dismissed as moot.

testimony that he had no problems with his employer regarding family planning policies and an
employer letter referencing past criticism on this subject; and (2) a purported discrepancy
between a State Department Report and Yan’s testimony as to the possibility of individuals from
Fujian Province paying a fine in order to have two children. Because we are confident that the IJ
would have rejected Yan’s testimony as implausible even without these discrepancies, we can
confidently conclude that a remand on these points would not yield any different result. See Cao
He Lin, 428 F.3d at 395.

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