IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 29, 2008
No. 08-60232
Summary Calendar Charles R. Fulbruge III
Clerk
CHUN LIN YANG; XIN AI YANG
Petitioners
v.
MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97 645 703
BIA No. A97 645 704
Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Chun Lin Yang and her husband, Xin Ai Yang (the Yangs), both Chinese
citizens, petition for review of the decisions of the Board of Immigration Appeals
(BIA) denying them asylum and denying their motion to remand the
immigration proceedings. Although the petitioners also contest the denial of
withholding of removal and the denial of relief under the Convention Against
Torture, the Yangs failed to adequately brief those arguments and therefore are
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-60232
deemed to have abandoned them. See Soadjede v. Ashcroft, 324 F.3d 830, 833
(5th Cir. 2003).
The Yangs seek asylum based on their claim that Mrs. Yang was forced to
have an abortion by Chinese officials, which they support with documents
allegedly issued by the local family planning authority. However, an
investigation conducted by the United States State Department revealed several
inconsistencies that undermine the authenticity of those documents.
Unconvinced by the Yangs’ explanations for those discrepancies, the
immigration judge (IJ) determined that the documents were fraudulent. The IJ
also relied on the State Department’s report of country conditions in China
indicating that, although forced abortions and sterilizations still occur in some
regions of China today, they are extremely rare.1 Based on these facts, the IJ
determined that the Yangs’ testimony was not credible and denied their claims
for asylum.
The BIA dismissed the Yangs’ appeal, upholding the IJ’s finding that the
Yangs were not credible because they had testified untruthfully and submitted
fraudulent documentation. We review the BIA’s determination that an alien is
not eligible for asylum under the substantial evidence test. Chun v. INS, 40
F.3d 76, 78 (5th Cir. 1994). Under that standard of review, we will reverse the
BIA’s factual determinations only if the record compels a contrary conclusion,
meaning that no reasonable factfinder could reach any other result. Id.
Normally, we are only authorized to review the orders of the BIA, not the IJ. Id.
However, where, as here, the BIA specifically adopts the IJ’s credibility findings,
we may review those findings, but we may not substitute our judgment for that
of the factfinder in determining the credibility of witnesses. Id.
1
The IJ also relied on the failure of Mrs. Yang to call as witnesses her
uncle and aunt who lived some 25 miles from the site of the hearing.
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We find that the IJ’s credibility determination was based on a reasonable
interpretation of the record and is therefore supported by substantial evidence.
See id. at 79. To the extent that the Yangs contend that the IJ erred in relying
on reports submitted by the State Department because they are speculative and
contain hearsay, that argument is without merit. See 8 C.F.R. § 1208.12.
Because the adverse credibility determination is supported by substantial
evidence, we affirm the BIA’s denial of the Yangs’ asylum claim. See Chun, 40
F. 3d at 79.
The Yangs also argue that the BIA erred in denying their motion to
remand. An alien who has been adjudicated to be removable may challenge the
ruling based on new facts or a change in circumstances by filing either a motion
to reopen or a motion to remand. Wang v. Ashcroft, 260 F.3d 448, 451 (5th Cir.
2001). When, as here, an alien files a motion seeking consideration of new
evidence during the pendency of an appeal to the BIA, it is considered a motion
to remand in the nature of a motion to reopen. Ramchandani v. Gonzales, 434
F.3d 337, 340 n.6 (5th Cir. 2005); In re Coelho, 20 I. & N. Dec. 464, 471 (BIA
1992). A motion to remand in the nature of a motion to reopen is subject to the
same standards and regulations governing motions to reopen. Ramchandani,
434 F.3d at 340 n.6 (citing Coelho). The BIA has discretion to deny a motion to
reopen if, inter alia, it is not satisfied that the new evidence relied on “would
likely change the result in the case.” Coelho, 20 I. & N. Dec. at 473 (1992).
The denial of a motion to reopen immigration proceedings is reviewed for
an abuse of discretion. Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993). The
BIA’s discretion will not be disturbed “so long as it is not capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so
aberrational that it is arbitrary rather than the result of any perceptible rational
approach.” Id. (internal quotation marks and citation omitted).
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No. 08-60232
The Yangs have not come close to meeting this “heavy burden.” See INS
v. Abudu, 108 S.Ct. 904, 914-15 (1988). The Yangs supported their motion to
remand with new documents purporting to explain the inconsistencies present
in the original documents filed with the Yangs’ asylum application. The BIA
reasonably found that these documents were also of questionable authenticity
and indeed raised more questions than they answered. Based on these findings
and the IJ’s prior adverse credibility determination, the BIA denied the motion
to remand. Although the BIA briefly mentioned in passing a failure to
demonstrate changed circumstances in China, it is clear from the order as a
whole that the BIA also, and primarily, concluded that the new evidence
presented by the Yangs did not warrant relief. We find that the BIA did not
abuse its discretion by denying the motion to remand.
PETITION DENIED.
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