Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-14-2009
Wu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2700
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2700
GUANG WU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A98-593-601)
Immigration Judge: Honorable Miriam K. Mills
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 8, 2009
Before: FUENTES, WEIS and GARTH, Circuit Judges
(Opinion filed: April 14, 2009)
OPINION
PER CURIAM.
Guang Wu petitions for review of a Board of Immigration Appeals (“BIA”)
decision dismissing his appeal of the Immigration Judge’s (“IJ”) decision denying his
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applications for relief from removal. We will deny the petition for review.
Wu is a native and citizen of China who came to the United States in 2004.
Shortly after his arrival, the Immigration and Naturalization Service issued a notice to
appear charging that Wu is subject to removal because he is present in the United States
without having been admitted or paroled. Through counsel, Wu conceded that he is
removable as charged. Wu applied for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”).
In support of his applications for relief from removal, Wu testified that he
began practicing Falun Gong in 2000. He stated that in August 2003 he went to Beijing
to pray for Falun Gong practitioners who had been arrested by the Chinese government.
Wu stated that during the gathering, which was attended by 20 to 30 people,
approximately ten police cars arrived. Wu testified that, along with other participants, the
police handcuffed him, placed him in a police car, and detained him. Wu further testified
that, after he was arrested, the police questioned him and forced him to take off his
clothes. Wu stated that the police hit him with sticks and deprived him of food. After
one week, the police released him.
Wu stated that an officer accompanied him en route to his hometown of
Fuzhou, but before they arrived, he ran away by climbing through a window in the train
restroom. Wu explained that he was afraid that the police would arrest him when he got
home. Wu hid at a friend’s house until he left China. Wu’s parents told Wu that the
police came to their house and told them that he must report to the police when he
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returned home, and that the police watched their home. Wu further testified that in 2005
he learned that one of his friends with whom he was arrested in Beijing was arrested at
home and beaten up. He stated that his friend had to pay a lot of money to get out of jail.
Wu also testified about the principles of Falun Gong and how it is practiced.
He stated that he is afraid to return to China because the Chinese government still
persecutes Falun Gong practitioners. Wu further testified that he works at a Chinese
restaurant in New Jersey, and that he often stays at an apartment rented by his boss. Wu
stated that, when he is not at that apartment, he stays with friends in Philadelphia. On
cross-examination, Wu stated that he did not remember the address where he stays in
Philadelphia.
The Government pointed out on cross-examination that the immigration
officer at the border stated in a summary of his questioning of Wu that Wu came to the
United States to seek employment, and that Wu did not fear returning to China. Wu
denied that he made such statements, and stated that he had difficulty communicating
without an interpreter. The Government also noted that Wu stated that he was arrested on
August 8, 2003, but that a letter written by his friend stated that the date of arrest was
August 6, 2003. Wu stated that he believed that August 8, 2003, was the correct date, and
that the other statement was wrong. In addition, the Government noted that Wu stated in
his affidavit that he was arrested with the two friends that he had traveled with to Beijing,
but he testified that one of those friends was not arrested. Wu explained that, when he
filled out his asylum application, he believed that both friends were arrested, but he did
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not call China to confirm the information. Wu stated that, after the application was
submitted, he learned that only one of his friends was arrested. Wu’s friend, Ling Yong
Feng, submitted a letter stating that he was not arrested.
The IJ denied Wu’s applications for relief from removal. The IJ found that
Wu provided no persuasive evidence that he ever practiced Falun Gong in China or in the
United States because he did not provide corroborative evidence that the court would
reasonably expect. The IJ noted that Wu did not reasonably explain why none of the
lawful permanent resident people with whom he lives in the United States, and whom he
testified had observed his Falun Gong practice, provided written or verbal testimony on
his behalf. The IJ stated that such corroboration was necessary because Wu was not
credible. The IJ found that Wu could not reasonably explain why the immigration officer
stated that he came here to seek employment. Although Wu faulted the use of a computer
interpreter, the IJ noted that the rest of the form accurately recorded his information. The
IJ did not believe Wu’s testimony that the immigration officer never asked him why he
came to the United States.
The IJ also stated that Wu failed to reasonably explain the inconsistencies
between his affidavit and letters corroborating his arrest regarding the date of the arrest
and whether his friend was arrested with him. The IJ found Wu’s explanation that he
wrote his affidavit before contacting his friends in China not convincing given the small
number of people at the demonstration and given that Wu specifically identified his two
friends as having been arrested with him. The IJ further noted that Wu established no
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evidentiary foundation for letters from China purporting to corroborate that Wu was a
Falun Gong practitioner.
The IJ concluded that Wu failed to satisfy his burden of proof that he
suffered past persecution or that he is currently a Falun Gong practitioner based on the
adverse credibility determination and because he failed to submit expected corroborating
evidence. The IJ further concluded that, because Wu was not credible, he failed to
establish that he was eligible for withholding of removal or relief under the CAT. The IJ
noted that the same alleged facts supported these applications for relief.
Wu appealed the IJ’s decision to the BIA.1 The BIA adopted and affirmed
the IJ’s decision. The BIA stated that the IJ’s adverse credibility finding was sufficiently
supported by the record, and that Wu had not shown that the finding was clearly
erroneous. The BIA explained that there were several bases for the adverse credibility
finding, including Wu’s statements to the border control agent that he came to the United
States to work and that he had no fear of returning to China, and the discrepancies
between Wu’s asylum application and his documentary evidence regarding his date of
arrest and whether he and his friend were arrested together. The BIA noted that Wu did
not adequately explain these inconsistencies, and that he did not contest the admission or
1
The record reflects that the attorney who represented Wu before the IJ filed Wu’s
notice of appeal. After the Pennsylvania Supreme Court temporarily suspended Wu’s
attorney from the practice of law, the BIA granted the Government’s petition to suspend
Wu’s attorney from practicing before the BIA. Wu retained new counsel, who filed a
brief on his behalf.
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reliability of his statements to the border control agent. The BIA further noted that Wu
had not shown that the IJ erred in determining that he failed to produce readily available
corroborative evidence regarding his practice of Falun Gong. The BIA agreed with the IJ
that Wu did not meet his burden of proof. Wu filed a petition for review.2
We review the IJ’s adverse credibility determination for substantial
evidence. Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). Under this standard of
review, the adverse credibility determination will be upheld unless a reasonable factfinder
would be compelled to conclude to the contrary. Id.
Wu argues that the discrepancy in the record regarding his date of arrest is
insufficient to support the adverse credibility finding. We agree. However, the
inconsistencies between Wu’s description of his arrest in his affidavit and his testimony
and the description given by his friend, Ling Yong Feng, constitute substantial evidence
supporting the adverse credibility finding. Wu stated in his affidavit that he went to
Beijing with Ling Yong Feng and Zheng Yan. In describing his arrest, Wu stated that
“before we could do anything the police had surrounded everybody including us. Some
Falun Gong practitioners, including Lin Yongfeng[sic], Zheng Yan and me, were
2
We previously granted the Government’s unopposed motion to remand the matter to
the BIA to address the burden of proof provisions of the Real ID Act of 2005. On
remand, the BIA concluded that, under the standards set out in the Real ID Act, the IJ’s
findings that Wu failed to testify credibly, failed to submit reasonably available
corroborating evidence, and failed to meet his burden of proof were supported by the
record. The BIA referred to its prior decision for examples of the inconsistences in the
record supporting the adverse credibility finding.
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apprehended and put in police cars and trucks. That same day we were sent to a detention
center.” A.R. at 286-87. Wu, however, submitted a letter from Ling Yong Feng in which
Feng stated that he ran away when the police arrived, and that he escaped. Wu also
testified that Ling Yong Feng ran away. A reasonable factfinder would not be compelled
to find Wu credible in light of these blatant inconsistencies relating to the event that is the
basis of his asylum claim.
Although Wu argues that the IJ did not give him an opportunity to explain
the inconsistencies, the record reflects that Wu had several opportunities to explain them
in response to questions by the IJ and the Government. Wu explained that he wrote his
affidavit before speaking to his friends. The IJ, however, found this explanation
unconvincing given the small number of people at the demonstration and Wu’s specific
statement that he was arrested with Ling Yong Feng. Wu further argues that the IJ
impermissibly speculated that he would know that his friend was arrested given the
relatively small number of people at the gathering. Even if this were true, the fact
remains that Wu stated that Ling Yong Feng was arrested, which is simply not true.3
We also find no error in the conclusion of the IJ and BIA that Wu failed to
provide reasonably available corroborating evidence of his practice of Falun Gong from
3
We agree with the Government that this inconsistency is sufficient to support the
adverse credibility finding. We thus need not address Wu’s arguments that the BIA erred
in relying on his statements to the border control agent, and that the IJ erred in finding
that he failed to provide a foundation for letters he received from China. As recognized
by the BIA, we note that Wu did not challenge the reliability of his statements to the
border control agent in his appeal to the BIA.
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the people with whom he lives in the United States. When given the opportunity to
explain the absence of such evidence, Wu first stated that these individuals did not have
time to provide a letter on his behalf. He also stated that his lawyer did not ask him to get
a letter. Although Wu told the IJ that he could get letters from people who have seen him
practice Falun Gong, his lawyer did not request to supplement the record. Under the Real
ID Act, no court shall reverse a determination with respect to the availability of
corroborating evidence unless the court finds that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable. Toure v. Attorney General, 443
F.3d 310, 325 (3d Cir. 2006). In light of Wu’s explanation, a reasonable trier of fact is
not compelled to conclude that corroborating evidence of his practice of Falun Gong in
the United States is unavailable.
As Wu failed to meet his burden of showing that he is eligible for asylum
and withholding of removal, we will deny the petition for review.4
4
Wu did not challenge in his appeal to the BIA the IJ’s finding that he failed to
provide corroborating evidence of his practice of Falun Gong. Because the BIA sua
sponte addressed this finding, we have jurisdiction to consider Wu’s argument. See Lin
v. Attorney General, 543 F.3d 114, 123 (3d Cir. 2008). We agree with the Government,
however, that Wu did not exhaust his administrative remedies with respect to his CAT
claim. See id. at 120-21.
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