Wang v. Holder

Decision Date02 June 2009
Docket NumberNo. 07-61008.,07-61008.
PartiesYanfen WANG, Petitioner, v. Eric HOLDER, Jr., U.S. Attorney General, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

A. Don Forester, The Forester Law Firm, Houston, TX, for Petitioner.

Edward C. Durant, Thomas Ward Hussey, Director, U.S. Dept. of Justice, OIL, Washington, DC, Sharon A. Hudson, U.S. Citizenship & Imm. Services, Houston, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Yanfen Wang1 appeals the decision of the Board of Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ) to deny Wang's request for asylum, withholding of removal and relief under the Convention Against Torture (CAT). For the reasons set forth below, we DENY the petition for review.

I. Factual Background

Wang is a native and citizen of the People's Republic of China. She was admitted to the United States in September 2004 as a non-immigrant, under a false identity, with authorization to remain in the United States for a temporary period not to exceed December 13, 2004. Wang stayed beyond the date authorized, and on August 22, 2005, the Department of Homeland Security served her with a Notice to Appear alleging removability under INA § 237(a)(1)(B), because, after her admission as a non-immigrant, she remained in the United States for a time longer than permitted.

Wang filed an application for asylum, withholding of removal, and CAT relief. She attached a declaration to the application claiming that she was persecuted in China for joining a secret family church of the Christian faith. On or about February 10, 2006, Wang updated her previously written statement with an amended statement and a declaration.

At her hearing, Wang admitted to the allegations contained in the Notice to Appear and conceded the charge of removability. Wang requested a Mandarin interpreter, and one was provided. The hearing proceeded with Wang as the only witness. She expressed no difficulty understanding the interpreter during her direct testimony when questioned by her own attorney.

Wang testified that her birth name was Yanfen Wang, and she was married to Tao Ming. They had one 20-year-old child who still resided in China with Ming. Wang became a Christian in May 2001, but her husband and daughter remained Buddhists. Wang testified that she was persecuted in China because of her Christian faith.

Wang came to the United States on September 14, 2004. Wang entered the United States under the identity of "Zhijun Duan," a name she had used since June 30, 2004, according to a Chinese passport bearing that name. Wang possessed two other documents bearing the name "Zhijun Duan," a visa issued by the U.S. State Department, and a Chinese Resident Identification Card. These documents were found to be genuine after a DHS forensics examination. As proof of her true identity, Wang submitted a notarized birth certificate, another Chinese Resident Identification Card bearing the name of "Yan Fen Wang," and a copy of a household registry from China. The identification card bearing the name of "Yan Fen Wang" was also deemed to be genuine by a forensics examiner at the DHS. It did not contain a picture.

The IJ noticed that the household registry stated that she had a "second son" and that the "housemaster" was "Wang Yanfen." Wang explained that the second son was actually her husband and that the household registration contained a mistake.2

In May 2001, after she became a Christian, Wang began attending church meetings every week. She would usually attend meetings with approximately twelve other people. Her testimony was confusing about who these twelve people were and whether they were the same twelve people or varied; she claimed not to know the names of the others attending the meetings. She stated that she knew them only as "Christian brothers and sisters."

Wang hosted group meetings at her home, and she estimated that she did so between five and ten times. During cross-examination, government counsel pointed out that Wang's most recent written statement mentioned only two meetings, in October 2002 and June 13, 2004. The IJ stated that Wang's written statement and her testimony were inconsistent. Wang explained that she did not write down the dates of all the meetings but wrote those two times as examples. She explained that she remembered those two meetings "more dearly" because October 2002 was the first meeting at her house and the 2004 meeting was when she was arrested.

Wang testified that on June 13, 2004, she was holding a Bible study meeting at her home when she and five or six fellow Christians were arrested by the police. Wang testified that she was incarcerated from June 13 to 25, during which time she was interrogated and beaten daily. The police slapped her, pulled her hair, used knives to cut her arm, kicked her, and tied her wrists with wire. Wang testified that she eventually confessed to organizing illegal meetings, passing out illegal propaganda, and disturbing the peace because they kept hitting her and she could not take it anymore.

During cross-examination, government counsel observed that Wang had testified that her wrists had been bound, but her declaration stated that her thumbs had been bound. Wang stated that she meant to testify that her thumbs, not her wrists, had been bound. The interpreter explained that Wang did not use the word wrist or thumb and that the interpreter may have used the word wrist based on hand motions by Wang.

Wang testified that she was released from custody so she could obtain medical treatment, but she was required to report back to the police every two weeks. Wang provided two pages of brief medical records to document her medical treatment, one showing a date of June 25, 2004, the other undated.3 She testified that she was unable to return to work because of her physical injuries, and she was eventually fired from her job because of her prior activities with her church. Wang provided a notice, dated June 20, 2004, terminating her position due to her engagement in an "evil religion organization" in violation of the law.

Wang testified that she first began using the name "Zhijun Duan" in June 2004 after she was released from prison, so she could escape from China. She explained that her pastor, Jun Chen, managed to obtain a genuine Chinese Resident Identification Card for her and a passport bearing the name "Zhijun Duan." Wang later used the passport to get a visa to the United States.

On August 22, 2004, Wang went to Singapore using the Duan passport seeking asylum, but once there, she learned that she could not get asylum in Singapore. However, she was not deported from Singapore. Wang's reasons for returning to China were the subject of inconsistent testimony. She said that she returned so that she could report to the police as required by her conditions of release. She also said it was so she could join a group that was coming to the U.S. When the IJ challenged her on the inconsistency, Wang explained that she did not hear the IJ's question clearly. She then repeated her original answer that her pastor told her to hurry back to China because she had to report to the police. The IJ continued to question her, her counsel objected once to the allegedly confusing nature of the questioning, and the IJ played back the tape of her testimony. Wang then agreed that her pastor did tell her about the group when she spoke to him on the phone while in Singapore.

Wang's counsel asked Wang more questions about when she was in custody. He asked her to show him how the wire was used on her hands, and she put her hands together with her thumbs sticking out. He asked her where the police put the wire, and she said around "the thumbs." Wang testified that they never put wires around her wrists. Her counsel asked if she had mentioned the word wrists earlier in her testimony, and she denied mentioning wrists, but she also said, "It was mentioned but I misunderstood, I heard it wrong." Wang's counsel twice requested a new trial, claiming that the interpreter was not competently interpreting the questions and testimony. The IJ overruled the motions and asked Wang whether she was having any particular problems with the interpreter. Wang indicated that she was not.4

Wang knew one person in the Houston area, Shusen Sun, who had met her in China in 2001 through the Hexi Family Church in Tianjin, China. Wang submitted his affidavit, but he did not testify live "because he was working."

II. The IJ and BIA Decisions

The IJ found Wang removable as charged and denied her applications for asylum, withholding and protection under the CAT. The IJ found that Wang's testimony was not plausible, believable or consistent enough to warrant a positive credibility finding. The IJ characterized Wang's testimony as vague, hesitant and evasive. The IJ stated that Wang did not handle confrontation by the Government on cross-examination in a reasonable manner. The IJ found that there were contradictions and discrepancies in her testimony, some minor, some significant. She also found Wang's testimony about her incarceration and beatings incredible due to Wang's lack of emotion that seemed to the IJ more consistent with one who has rehearsed a story, rather than one who lived the events.

As an example, the IJ found that the circumstances surrounding Wang's return to China from Singapore were material, but that she did not provide a reasonable explanation for the contradiction in her testimony, and the explanation given was not plausible and not supported by the entirety of her testimony. The IJ found inconsistencies surrounding Wang's testimony concerning her return to China from Singapore in August 2004. Wang originally testified that she returned to China in order to report to the police, as she had been ordered to do after...

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