Opinion
No. 03-40297-ag NAC.
February 27, 2007.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED, in part, DISMISSED, in part, and GRANTED, in part, the BIA's order is VACATED, in part, and the case is REMANDED for further proceedings.
FOR PETITIONER: Gary J. Yerman, New York, New York. FOR RESPONDENT: Kenneth L. Wainstein, United States Attorney for the District of Columbia, Madelyn E. Johnson, Keith V. Morgan, Assistant United States Attorneys, Washington, D.C.
PRESENT: HON. ROBERT D. SACK, HON. SONIA SOTOMAYOR, HON. ROBERT A. KATZMANN, Circuit Judges.
Petitioner Chuan Xiang Jiang, a citizen of the People's Republic of China, seeks review of a July 18, 2003 order of the BIA affirming the December 12, 2001 decision of Immigration Judge ("IJ") Paul A. DeFonzo denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Chuan Xiang Jiang, No. A76 506 616 (B.I.A. July 18, 2003), aff'g No. A76 506 616 (Immig. Ct. N.Y. City Dec. 12, 2001). We assume the parties' familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard. 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 retain authority to remand when the agency has failed to apply the law correctly or if its findings are not supported by record evidence. Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 337 (2d Cir. 2006).
Substantial evidence supports the IJ's adverse credibility finding underlying the denial of asylum and withholding. During his testimony, Jiang contradicted himself repeatedly with regard to matters material to his claim that his wife was forcibly sterilized. He was unable to provide a coherent, chronological account of when his wife was forced to wear an IUD, when she became pregnant a second time, when she was taken for sterilization, or where he and his wife were when she was taken. In addition, his testimony included several allegations that were not mentioned in his asylum application, and he was unable to exhibit any familiarity with the documents he submitted. Notwithstanding his arguments that his confusing testimony should have been excused due to his poor memory and lack of education, a reasonable fact-finder would not be compelled to credit his explanations or conclude that he presented a credible claim of persecution. See Jin Yu Lin v. U.S. Dep't of Justice, 413 F.3d 188, 190-91 (2d Cir. 2005); Zhou Yun Zhang, 386 F.3d at 77.
Although Jiang argues in his brief to this Court that he is eligible for CAT relief, it appears that he abandoned his CAT claim at the IJ level. As the IJ did not address a CAT claim in his decision, and Jiang did not make any arguments relevant to CAT relief in his brief to the BIA, we find that Jiang has failed to preserve the claim for judicial review. See Li Zu Guan v. INS, 453 F.3d 129, 132 n. 2 (2d Cir 2006). Accordingly, we "deny review of [Jiang's] CAT claim without further discussion." Id.; see also Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 320 n. 1 (2d Cir. 2006).
However, it is not clear that the same considerations warrant a finding that Jiang knowingly filed a frivolous application, when the IJ did not provide any additional reasoning to support that finding. See Yuanliang Liu v. U.S. Dep't of Justice, 455 F.3d 106, 114 (2d Cir. 2006). A finding of frivolousness has severe consequences: "If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the [prescribed] notice . . ., the alien shall be permanently ineligible for any benefits under this Act. . . ." 8 U.S.C. § 1158(d)(6); see also Yuanliang Liu, 455 F.3d at 112, 117 ("A finding of frivolousness is a potential `death sentence' for an alien's immigration prospects." (emphasis deleted)).
Because this case would benefit from the outcome of the remand in Yuanliang Liu, as the IJ relied only on his general finding that Jiang appeared unfamiliar with the details, a limited remand in this case is required, see id. at 117-18, for the BIA to clarify the standard it applies in determining whether this asylum application is frivolous, and determine whether the facts of Jiang's case meet that standard.
For the foregoing reasons, the petition for review is DENIED, in part, DISMISSED, in part, and GRANTED, in part, the BIA's order is VACATED, in part, and the case is REMANDED for further proceedings. The pending motion for a stay of removal in this petition is DISMISSED as moot.