Yang Jin Wei v. Gonzales
Opinion of the Court
SUMMARY ORDER
Petitioner Yang Jin Wei, a native and citizen of China, seeks review of a June 17, 2004, Board of Immigration Appeals (“BIA”) order affirming the April 25, 2003, decision of Immigration Judge (“IJ”) John Opaciuch denying Wei’s application for withholding of removal pursuant to the Convention Against Torture (“CAT”).
Where, as here, the BIA has adopted the reasoning of the IJ, we may review the IJ opinion directly. E.g., Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). We review the IJ’s factual findings, including an adverse credibility finding, under a standard of “substantial evidence.” See Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004).
To qualify for relief pursuant to the CAT, a petitioner must show that it is more likely than not that he will be tortured upon his return to the country of removal. 8 C.F.R. § 208.16(c)(2); e.g., Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir. 2004). In Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005), we held that in the absence of “particularized evidence,” a petitioner is not “entitled to CAT protection based solely on the fact that [he] is part of the large class of persons who have illegally departed China. Were such a showing sufficient to secure relief under the CAT, any asylum-seeker arriving in the United States illegally from China would equally be entitled to such relief.” Wei has not introduced evidence that someone in his particular situation is more likely than not to be tortured upon his return to China.
To the extent Wei attempted to make that showing through evidence about the experiences of his brother and a friend, the IJ’s adverse credibility finding was supported by substantial evidence. Although the IJ erred in making certain findings regarding the functioning of Chinese law that are premised on speculation rather than record evidence, we may affirm an adverse credibility finding when the IJ’s reasoning is deficient in certain respects, provided that the IJ’s reasoning is supported by the record as a whole. See Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158 (2d Cir. 2006). The IJ noted that Wei’s testimony and a letter purportedly written by Wei’s friend both indicate that this friend was arrested in 1999. The criminal papers submitted regarding this same friend, however, indicate
For the reasons set forth above, the petition for review is DENIED.
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.
Reference
- Full Case Name
- YANG JIN WEI v. Alberto R. GONZALES, United States Attorney General
- Status
- Published