Yang v. U.S. Dept. of Justice

• Decision Date: 11 October 2005
• Docket Number: Docket No. 03-40774.
• Citation: 426 F.3d 520
• Parties: Xue Hong YANG, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE and Attorney General Gonzales,<SMALL><SUP>*</SUP></SMALL> Respondents.
• Court: U.S. Court of Appeals — Second Circuit

Page 520

426 F.3d 520

Xue Hong YANG, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE and Attorney General Gonzales,^* Respondents.

Docket No. 03-40774.

United States Court of Appeals, Second Circuit.

Argued: August 2, 2005.

Decided: October 11, 2005.

Bruno J. Bembi, Hempstead, N.Y., for petitioner.

Elizabeth L. Collins, Assistant United States Attorney for the Central District of Illinois, for David N. Kelley, United States Attorney for the Southern District of New York, New York, N.Y., for respondents.

Before: CALABRESI and RAGGI, Circuit Judges, and COTE, District Judge.^**

CALABRESI, Circuit Judge.

Petitioner Xue Hong Yang ("Yang") appeals from an order of the Board of Immigration Appeals ("BIA") which affirmed the decision of an Immigration Judge ("IJ") denying her requests for asylum and for withholding of removal under the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158(a), 1231(b)(3), and for withholding of removal under the United Nations Convention Against Torture ("CAT") Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 1208.16.

The key to Yang's asylum and withholding claims is that she was forcibly sterilized by Chinese authorities for violating China's "one child" policy. The IJ found Yang's assertion of forced sterilization not credible.

Ordinarily, we review the BIA's decision, but where the BIA summarily affirms the decision of the IJ, we review the IJ's decision directly. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Here, because one ground given by the IJ for denying Yang relief—that even if Yang had been, in fact, forcibly sterilized, the very fact of her sterilization would preclude her having a well-founded fear of future persecution—had been undermined by a previous BIA ruling, the BIA rejected this basis for the IJ's decision. In re Y-T-L-, 23 I. & N. Dec. 601, 605, 2003 WL 21206539 (BIA 2003). But the BIA's one-paragraph decision affirmed the IJ's holding in every other respect. Accordingly, we review the judgment of the IJ as modified by the BIA's decision—that is, minus the single argument for denying relief that was rejected by the BIA.

We uphold the factual findings of the BIA or IJ so long as they are supported by substantial evidence in the record, Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam), and, in applying the substantial evidence standard, we afford particular deference to credibility findings, Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997). In the case before us, it is clear that the IJ's determination that Yang was not credible with respect to her claim of forcible sterilization was supported by substantial evidence, and that the IJ could reasonably conclude that this lack of credibility fatally undermined her requests for asylum and withholding of removal under the INA.

As a result, Yang's petition for review could be denied summarily, were it not for Yang's contention that the BIA and IJ failed to give due consideration to her request for withholding of removal under the CAT. In this connection, Yang makes two arguments. The first is that, as an opponent of Chinese family planning and a person who left China illegally, she would face detention and torture if she were returned to China. This argument, however, is not supported by evidence sufficient to meet Yang's burden of showing that "it is more likely than not that [she] would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2); see also Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 133-34 (2d Cir.2003).

Yang's second argument—that credibility findings made for the purpose of determining an asylum claim must not be allowed to "bleed through" to taint a CAT claim, Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir.2004) (quoting Zubeda v. Ashcroft, 333 F.3d 463, 476 (3d Cir.2003))—requires more discussion. In essence, Yang contends that forcible sterilization constitutes a form of ongoing torture, and since the BIA has not adequately considered Yang's torture-by-forced-sterilization claim, the order denying Yang's CAT claim must be vacated and the case remanded to the BIA for further consideration.

The BIA has held that forced sterilization constitutes a form of permanent and continuing persecution that qualifies an alien for asylum under the INA. In re Y-T-L-, 23 I. & N. Dec. at 606-07. But neither the BIA nor this Court has to date determined whether forced sterilization amounts to torture that persists into the future, such that a victim of forced sterilization automatically qualifies for withholding under the CAT. And we need not decide that question today, as Yang's argument that the IJ's adverse credibility finding for the purpose of her asylum claim may not be allowed to taint her CAT claim rests on a misinterpretation of Ramsameachire. Here, unlike Ramsameachire, the IJ validly found, on the basis of inconsistent and implausible statements by Yang and her husband, that Yang had failed to establish a particular fact—Yang's forced sterilization—and that fact formed the only potentially valid basis for Yang's CAT claim. In such a...