Third Circuit disposition — 083038np-pdf

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3038
___________
XIU JU WANG,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A99-023-674)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 28, 2009
Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges
(Opinion filed: September 29, 2009)
___________
OPINION
___________
PER CURIAM.
Petitioner, Xiu Ju Wang, seeks review of the Board of Immigration
Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her

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petition.
I.
Wang is twenty-two years old and is a citizen of China. Wang entered the
United States unlawfully in October 2005 and was placed in removal proceedings. Wang
applied for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”) on the ground that she would face persecution in China on account of
her opposition to the government’s policies toward Falun Gong.
At her removal hearing, Wang testified that, before coming to the United
States, she had worked as a proofreader in a printing shop in China. Wang lived in a
dormitory at the shop. According to Wang, on April 30, 2005, her boss asked her to
proofread a piece of Falun Gong propaganda. Wang testified that she agreed to proofread
the article as instructed even though she does not practice Falun Gong.
Wang further testified that, later that night, after she had completed her
work and had retired to her room, Chinese authorities raided the shop. Wang explained
that she was able to escape through a back door, but left behind all of her belongings,
including a personal diary in which she had voiced her opposition to the government’s
treatment of Falun Gong practitioners. After fleeing the print shop, Wang was afraid to
go home, so she went to stay with a relative. Wang later learned that five of her
colleagues from the print shop had been arrested and that the shop had been sealed off by
the police. Wang testified that, two days after the raid, police appeared at her parents’

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home with a warrant for her arrest. According to Wang, authorities later returned on
several occasions looking for her. In support of her application, Wang submitted several
affidavits, including an affidavit from her cousin who also worked at the printing press.
Wang claimed that if she were forced to return to China, she would be arrested for the
opinions she expressed in her diary.
At the end of the hearing, the IJ asked Wang’s attorney to clarify the
grounds on which Wang was seeking asylum. Counsel explained that Wang feared
persecution on account of her political opinion, that is, her opposition to the government’s
policies toward Falun Gong. Counsel further explained that the government learned of
Wang’s political opinion through the diary that they confiscated during the raid. The IJ
then pointed out that Wang failed to mention the diary—the very item that put her in
danger—in her initial application, and asked Wang to explain why she would omit such a
crucial piece of the story. Wang stated that she did not realize that it was important to
mention the diary in the application.
Following the hearing, the IJ found that Wang’s testimony was not credible,
primarily because of her failure to mention the diary in her initial application. The IJ also
doubted Wang’s theory that the police might have been searching for Wang due to her
employment at the printing press alone—regardless of the existence of the
diary—because her cousin, who also worked at the press, was never contacted by the
police. For these reasons, the IJ concluded that Wang failed to establish a well-founded

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We have jurisdiction to review the BIA’s final order of removal pursuant1
to 8 U.S.C. § 1252(a).
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fear of future persecution and denied her application for asylum. The IJ also denied her
applications for withholding of removal and relief under the CAT. The BIA affirmed.
Wang now petitions for review of the BIA’s order.1
II.
The primary issue presented by this appeal is whether the BIA erred in
upholding the IJ’s adverse credibility determination. When, as in this case, the BIA
substantially relies on an IJ’s adverse credibility determination, this Court “must look to
both decisions in order to satisfy [its] obligation under 8 U.S.C. § 1252(b) to review the
administrative decision meaningfully.” He Chun Chen v. Ashcroft, 376 F.3d 215, 222
(3d Cir. 2004). An adverse credibility finding is reviewed for substantial evidence and
must be upheld unless “any reasonable adjudicator would be compelled to conclude to the
contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir. 2004) (quoting 8 U.S.C. §
1252(b)(4)(B)). Thus, we must afford the IJ’s adverse credibility finding “substantial
deference so long as the findings are supported by sufficient cogent reasons.” Butt v.
Gonzales, 429 F.3d 430, 434 (3d Cir. 2005).
Because Wang filed her application for relief after the enactment of the
REAL ID Act of 2005, the IJ’s credibility determination is governed by the Act. See
Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). Under the REAL ID Act, an IJ

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Although the BIA stated that the IJ also found that Wang’s story was2
implausible, we read the IJ’s opinion as reserving decision on that basis. (Oral Decision,
March 29, 2007, 15-16.)
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may base her credibility determination on observations of the applicant’s demeanor, the
plausibility of the petitioner’s story, and on the consistency of the petitioner’s statements.
See INA § 208(b)(1)(B)(iii); Gabuniya v. Attorney General, 463 F.3d 316, 322 n.7 (3d
Cir. 2006).
As noted above, in this case, the IJ found that Wang’s failure to mention the
diary in her application significantly undermined the credibility of her story because, in
the IJ’s view, it was the lynchpin of her claim; without the diary, the police would have
no reason to believe that Wang was opposed to the government’s Falun Gong policies.
Upon review, the BIA determined that there was no clear error in the IJ’s adverse
credibility finding. Based on our review of the record, we cannot say that a reasonable2
adjudicator would be compelled to conclude to the contrary. See Berishaj v. Ashcroft,
378 F.3d at 322. Wang’s failure to mention the diary in her application created a
sufficiently significant inconsistency to support the IJ’s adverse credibility finding. See
Butt, 429 F.3d at 434. Although Wang argues on appeal that “the Immigration Judge
should not make an adverse inference on Wang’s credibility merely because she supplied
additional information during her hearing to supplement information on her I-589,”
(Petitioner’s Brief 17-18), we agree with the BIA and IJ that this omission was rather
significant in light of the relative weakness of Wang’s case.

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Given that the BIA’s and IJ’s adverse credibility determinations are
supported by sufficient, cogent reasons, we will defer to their findings. See Butt, 429
F.3d at 434. We therefore agree that Wang failed to establish eligibility for asylum.
Furthermore, because Wang’s claims for withholding of removal and relief under the
CAT are based on the same evidence as her asylum claim, we conclude that substantial
evidence supports the denial of these claims as well.
We will deny the petition for review.
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