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De Yi Wu vs U.S. Attorney General, 10-13735 (2011)

Court: Court of Appeals for the Eleventh Circuit Number: 10-13735 Visitors: 49
Filed: Jul. 20, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-13735 ELEVENTH CIRCUIT Non-Argument Calendar JULY 20, 2011 _ JOHN LEY CLERK Agency No. A088-402-639 DE YI WU, llllllllllllllllllllllllllllllllllllllll Petitioner, versus U.S. ATTORNEY GENERAL, lllllllllllllllllllllllllllllllllllllll lRespondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (July 20, 2011) Before BARKETT, MARCUS and BLACK, Circuit Judge
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                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                  FILED
                                                                     U.S. COURT OF APPEALS
                                            No. 10-13735               ELEVENTH CIRCUIT
                                        Non-Argument Calendar              JULY 20, 2011
                                      ________________________              JOHN LEY
                                                                             CLERK
                                           Agency No. A088-402-639


DE YI WU,

llllllllllllllllllllllllllllllllllllllll                                        Petitioner,

                                                   versus


U.S. ATTORNEY GENERAL,

lllllllllllllllllllllllllllllllllllllll                                      lRespondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                               (July 20, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
       De Yi Wu petitions for review of the Board of Immigration Appeals’ (BIA)

decision affirming the Immigration Judge’s (IJ) order denying his application for

asylum, withholding of removal, and relief under the United Nations Convention

Against Torture (CAT). On appeal, Wu argues (1) his due process rights were

violated because a malfunctioning tape recorder repeatedly interrupted his

testimony during the removal proceeding, (2) the adverse credibility determination

is not supported by substantial evidence, and (3) the BIA erred in finding he had

not suffered past persecution and did not have a well-founded fear of future

persecution.1 After review, we dismiss Wu’s petition in part and deny it in part.2

                                                I.

       We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v.

U.S. Att’y Gen., 
321 F.3d 1331
, 1332 (11th Cir. 2003). We lack jurisdiction to

review claims that a petitioner fails to exhaust before the BIA. 8 U.S.C.

§ 1252(d)(1). A petitioner’s “allegation of a due process violation—that he was



       1
           Wu also asks us to grant his motion to remand his case for a new hearing. Wu has not
filed such a motion with this Court. Although Wu filed a motion to remand with the BIA, he
does not argue in his appellate brief that the BIA erred in denying that motion, and has thus
abandoned any challenge to the denial of his motion to remand. See Sepulveda v. U.S. Att’y
Gen., 
401 F.3d 1226
, 1228 n.2 (11th Cir. 2005) (holding that a petitioner abandons an issue if he
fails to offer argument on it).
       2
          We review only the BIA’s decision, except to the extent that the BIA expressly adopts
the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 
257 F.3d 1262
, 1284 (11th Cir. 2001).

                                                2
denied a full and fair hearing before a neutral factfinder—is precisely the kind of

procedural error which requires exhaustion.” Amaya-Artunduaga v. U.S. Att’y

Gen., 
463 F.3d 1247
, 1251 (11th Cir. 2006).

      Wu failed to exhaust his claim that problems with the tape recorder deprived

him of due process. Although Wu stated in his brief to the BIA that he had to

answer certain questions repeatedly because of problems with the tape recorder, he

did not argue this deprived him of due process. The BIA did not have an

opportunity to address Wu’s due process argument, and we lack jurisdiction to

review the claim. See 
Amaya-Artunduaga, 463 F.3d at 1251
.

                                         II.

      We review credibility determinations under the substantial evidence test.

Chen v. U.S. Att’y Gen., 
463 F.3d 1228
, 1230-31 (11th Cir. 2006). Under the

substantial evidence test, we must affirm the BIA’s decision if it is “supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Al Najjar v. Ashcroft, 
257 F.3d 1262
, 1284 (11th Cir. 2001). The BIA’s

credibility determinations “can be reversed only if the evidence ‘compels’ a

reasonable fact finder to find otherwise.” 
Chen, 463 F.3d at 1230-31
.

      The BIA “must offer specific, cogent reasons for an adverse credibility

finding.” Forgue v. U.S. Att’y Gen., 
401 F.3d 1282
, 1287 (11th Cir. 2005). An

                                          3
adverse credibility determination may be based on “the inherent plausibility of the

applicant’s or witness’s account, the consistency between the applicant’s or

witness’s written and oral statements . . . , the internal consistency of each such

statement, [and] the consistency of such statements with other evidence of record.”

8 U.S.C. § 1158(b)(1)(B)(iii).

      The BIA set forth specific, cogent reasons for its adverse credibility

determination. 
Forgue, 401 F.3d at 1287
. Substantial evidence supports the

adverse credibility determination because the BIA (1) accurately identified

discrepancies between Wu’s written account of his jailhouse beating and his

testimony regarding the beating, and (2) found that Wu’s account of escaping from

the hospital was inherently implausible. 8 U.S.C. § 1158(b)(1)(B)(iii). The

record does not compel reversal of the BIA’s adverse credibility determination.

                                         III.

      An alien may establish eligibility for asylum if he shows he has suffered

either “past persecution” or has a “well-founded fear” of future persecution based

on a protected ground. Tang v. U.S. Att’y Gen., 
578 F.3d 1270
, 1277 (11th Cir.

2009). “To establish asylum based on past persecution, the applicant must prove

(1) that []he was persecuted, and (2) that the persecution was on account of a

protected ground.” Sanchez Jimenez v. U.S. Att’y Gen., 
492 F.3d 1223
, 1232 (11th

                                          4
Cir. 2007). A well-founded fear of future persecution may be established by

showing, inter alia, (1) past persecution that creates a presumption of a “well-

founded fear” of future persecution, or (2) a reasonable possibility of being

singled out for persecution that cannot be avoided by relocating within the subject

country. 8 C.F.R. § 208.13(b).3

       Wu submitted no credible evidence establishing how or why he was injured

and thus failed to show he suffered past persecution on account of a protected

ground. Because he did not establish past persecution, Wu is not entitled to a

presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b).

Wu also failed to show there was a reasonable possibility of him being singled out

for future persecution that cannot be avoided by relocation. Although Wu offers

some evidence that he belonged to a church in China, the only evidence that this

church was unauthorized was Wu’s own testimony and written statements. Thus,

the record does not compel the conclusion that Wu suffered past persecution or

had a well-founded fear of future persecution. Because Wu failed to establish his

eligibility for asylum, he necessarily failed to meet the higher burden of proof with




       3
          Wu does not offer any argument that the Chinese government’s harassment of
Christians is so systematic or pervasive as to amount to a pattern or practice of persecution, and
has thus abandoned the issue. See 
Sepulveda, 401 F.3d at 1228
n.2.

                                                 5
respect to his claims for withholding of removal and CAT relief. See Al 
Najjar, 257 F.3d at 1292-93
, 1303.

      PETITION DENIED IN PART AND DISMISSED IN PART.




                                        6

Source:  CourtListener

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