Yu Fei Weng v. Gonzales
Opinion of the Court
SUMMARY ORDER
Petitioner Yu Fei Weng, a native and citizen of the People’s Republic of China, seeks review of a November 1, 2004 order of the BIA affirming the July 21, 2003 decision of Immigration Judge (“IJ”) Alan Vomacka denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yu Fei Weng, No. A 78 433 052 (B.I.A. Nov. 1, 2004), aff'g No. A 78 433 052 (Immig. Ct. N.Y. City July 21, 2003). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
As an initial matter, we lack jurisdiction to consider Weng’s arguments regarding his eligibility for asylum. Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B) or its finding that neither changed nor extraordinary circumstances excuse the untimeli
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005).
The BIA’s order is unclear with respect to whether it affirmed the IJ’s adverse credibility finding. Nevertheless, even assuming Weng’s testimony was credible with respect to his withholding of removal claim based on the alleged forced abortion of his girlfriend, substantial evidence supports the BIA’s determination that the abortion suffered by Weng’s girlfriend was insufficient to establish his eligibility for withholding of removal. Accordingly, any error in the IJ’s adverse credibility determination is deemed harmless. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-41 (2d Cir. 2006) (avoiding remand where, in spite of deficiencies in an adverse credibility determination, the Court could confidently predict that the IJ would adhere to the decision were the case remanded).
Weng argues that, under In re S-L-L-, 24 I. & N. Dec. 1, 10 (B.I.A. 2006), an unmarried partner of an individual forced to have an abortion or to undergo sterilization may demonstrate persecution if he shows that he has suffered harm amounting to persecution on account of “other resistance to a coercive population control program.” However, this argument is unavailing in Weng’s case. While Weng may have been “extremely sad” regarding his girlfriend’s alleged forced abortion, he failed to allege facts indicating that he had ever engaged in “other resistance” to the family planning policy. Therefore, he did not carry his burden of demonstrating that he had suffered past persecution under a coercive population control program.
As to any claim of future persecution, Weng has waived any challenge to the agency’s denial of his application for withholding of removal with respect to his illegal departure claim by failing to present any such argument to this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005). We therefore deny the petition for review as to Weng’s withholding of removal claim.
Finally, the record supports the IJ’s determination that Weng failed to establish eligibility for relief under the CAT with respect to his illegal departure claim. The IJ found that Weng’s background material indicated that torture occurs frequently in China. This material, namely, the Amnesty International report (“AI Report”), indicates that the police and other government agencies in China retain “wide
For the foregoing reasons, the petition for review is DENIED, in part, and DISMISSED, in part. Having completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.
Reference
- Full Case Name
- YU FEI WENG v. Alberto R. GONZALES, United States Attorney General
- Status
- Published