NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 14-4779
__________
TIAN HUA YANG
Petitioner
v.
ATTORNEY GENERAL UNITED STATES
OF AMERICA,
Respondent
__________
On Petition from the Final Order of the
Board of Immigration Appeals
(No. A087-980-865)
Immigration Judge: Miriam K. Mills
Submitted Under Third Circuit LAR 34.1(a)
December 10, 2015
Before: FUENTES, CHAGARES, and GREENBERG, Circuit Judges
(Filed: March 11, 2016)
________________
OPINION*
________________
* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Fuentes, Circuit Judge:
Tian Hua Yang, a native and citizen of China, applied for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”) on account of his
Christian faith. The Immigration Judge (“IJ”) denied all forms of relief, and the Board of
Immigration Appeals (“BIA”) dismissed Yang’s appeal. The BIA upheld the IJ’s adverse
credibility finding and, in particular, the IJ’s determination that Yang’s asylum claim was
time-barred because his testimony was not credible as to when he entered the United
States. The BIA also agreed with the IJ’s alternative determination that, even if Yang
had been found credible, he did not satisfy his burden of proof for withholding of
removal or his CAT claim. Specifically, the BIA noted that Yang failed to show that it
was more likely than not that he would be subject to persecution or torture if removed to
China. Yang filed the present petition for review.1
For the reasons that follow, we will deny the petition.
I. BACKGROUND
Yang entered the United States by crossing the United States-Mexico border
illegally in December 2009. In April 2010, the Department of Homeland Security
(“DHS”) served Yang with a notice of removal as an alien present in the United States
unlawfully. On July 30, 2010, Yang conceded the charge of removability before the IJ,
as he had entered the country illegally through the Mexican border. That same day, he
1
The BIA had jurisdiction over Yang’s appeal under 8 C.F.R. §§ 1003.1(b) and 1240.15.
To the extent that we exercise jurisdiction over this petition, we do so under INA §
242(a)(1).
2
submitted an application for asylum, withholding of removal, and CAT relief.2 Yang’s
application was based on his Christian faith and purported arrest and detention by his
village’s chief of police in China based on an accusation that he was spreading cult
activities.
The IJ held a merits hearing on Yang’s application. At the hearing, Yang testified
that he left China for the United States because he was persecuted for his Christian
beliefs. He stated that in December of 2007, the “village leader” and six staff members
came to his home, accused him of “spreading the agenda of being a cult,” and ordered
him to stop.3 He further stated that he had been preaching Christianity and said that what
he was preaching was considered to be “orthodox,” but the officers did not believe him.4
He said that the officers then searched the store owned by Yang’s mother and burned his
flyers that contained a Christian message.5
Yang also testified that, after the officers searched the store, they arrested him and
his father and held them overnight in the village center.6 He further claimed that the
2
It appears that this was, as a matter of form, a resubmission, as Yang had previously
submitted the same application with the USCIS Vermont Service Center in March of
2010.
3
(A.R. at 125.)
4
Id.
5
(A.R. at 126.)
6
Id.
3
officers wanted him to cease any preaching in support of his religion and pay a fine.7
Yang stated that, on another occasion, he was taken into custody by certain public safety
officers based upon allegations that his employer was advocating for Taiwanese
independence and “preaching cult.” 8 Yang claimed that he was then interrogated, and
that he was beaten in the head and back with a stick after he refused to answer questions.9
He also claimed that he was thereafter detained for two weeks and ordered to report to the
police station once a week.10
Overall, Yang’s testimony was controverted and inconsistent. For example, the
date he provided as to when he reportedly began attending a congregation in Brooklyn,
New York was contradicted by at least two letters from the church that contained
different dates.11 Yang also claimed that he flew to the United States on a “private
helicopter,” but that he did not know where the helicopter took off or landed. 12 He later
contradicted this testimony, claiming that he came to the United States by airplane.13
When asked if he sought medical treatment after he was released by the authorities in
7
(A.R. at 128.)
8
(A.R. at 130.)
9
Id.
10
(A.R. at 132.)
11
(A.R. at 135, 144, 302, 319.)
12
(A.R. at 154.)
13
(A.R. at 154-155.)
4
China, Yang stated that he “went to get checked out” but that he did not bring the medical
records from his visit with him to the United States.14 Yang also presented contradictory
testimony regarding the dates of his arrest in China, claiming at one point that he was
arrested in December 2009, and at another point stating that his arrest took place on
October 1, 2009 or at the end of September, 2009.15 Yang claimed that the reason he did
not report anything to the Chinese authorities as directed was because he thought doing
so would cause trouble for his fellow parishioners. Yet, Yang later said that he was not
aware of anything otherwise happening to his fellow parishioners, nor did he believe that
reporting would have ultimately affected them.16
Yang’s father also submitted an affidavit in support of his application for relief.
His father’s account, however, varied and contradicted Yang’s testimony about the raid
of his mother’s store. Specifically, his father claimed that the authorities raided his house
and burned leaflets and Bibles, not that the authorities raided his mother’s store.17
The IJ denied Yang’s application for relief, concluding that Yang had failed to
demonstrate his statutory eligibility for withholding of removal under INA § 101
(a)(42)(A). On appeal, the BIA agreed with the IJ’s conclusion, namely that Yang’s
14
(A.R. at 158.)
15
(A.R. at 159-162.)
16
(A.R. at 81, 165, 201.)
17
(A.R. at 434.)
5
corroborative evidence did not satisfy his burden of proof and affirmed the IJ’s ruling.
This petition for review followed.
II. DISCUSSION
Under INA § 208(a)(2), an alien seeking asylum must demonstrate by clear and
convincing evidence that he filed his application within one year of the date of arrival in
the United States. The agency found that Yang did not meet this requirement, and we do
not have jurisdiction to review this finding.18 We therefore cannot review Yang’s asylum
claim.
With respect to Yang’s withholding of removal and CAT claims, generally we
review adverse credibility determinations under the substantial evidence standard,
keeping in mind that the IJ is in the best position to ascertain an applicant’s credibility. 19
Here, there is evidence in the record that Yang provided inconsistent testimony not only
with respect to how and when he entered the United States, but also regarding the alleged
incidents that occurred in China that caused him to flee. Yang’s testimony and written
statements are also controverted by the written statements of his father, including the
account of the village chief’s raid of his mother’s store. We therefore conclude that the
record does not compel reversal of the agency’s adverse credibility determination.
The agency also found that, even if Yang were credible, he did not establish harm
rising to the level of persecution or torture. Yang gives little attention to this alternative
18
(A.R. at 5); INA § 208(a)(3) (“No court shall have jurisdiction to review any
determination of the Attorney General under [INA § 208(a)(2)].”).
19
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998).
6
finding in his brief and has arguably waived it.20 Nevertheless, we conclude that the
agency’s finding was accurate. Yang testified that he was arrested and held overnight,
and then detained a second time for a week, during which he was interrogated for two
hours and struck on the back of his head and his back with a stick. He testified that he
sought medical treatment, but could not offer any medical records to corroborate his
claim. Under our case law, these isolated incidents do not rise to the level of past
persecution to create a presumption of future persecution.21
III. CONCLUSION
For all of these reasons, we will deny the petition for review.
20
Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d
Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and for those
purposes a passing reference to an issue . . . will not suffice to bring the issue before this
court”) (internal quotation marks omitted).
21
See Kibinda v. Att’y Gen., 477 F.3d 113 (3d Cir. 2007); Jarbough v. Att’y Gen., 483
F.3d 184 (3d Cir. 2007).
7