Circuit Judges. X JIAN HUA JIANG, Petitioner, v. EDWARD J. McELROY, District Director of the United States Immigration and Naturalization, (2nd Cir. 2004)
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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York, on the 12th day of March, two thousand and four.
PRESENT:
Hon. John M. Walker, Jr., Chief Judge, Hon. Richard J. Cardamone, Hon. Chester J. Straub, Circuit Judges.
JIAN HUA JIANG, Petitioner, v. No. 01-4060
EDWARD J. McELROY, District Director of the United States Immigration and Naturalization Service, KEVIN D. ROONEY, Director of the Executive Office for Immigration Review, PAUL W. SCHMIDT, Chairman of the Board of Immigration Appeals, Respondents.
APPEARING FOR PETITIONER: VLAD KUZMIN, Wilson, Joshi &
Kuzmin, LLP, New York, NY APPEARING FOR APPELLEE: DAVID J. KENNEDY, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Meredith E. Kotler, Assistant United States Attorney, on the brief), New York, NY Appeal from the Board of Immigration Appeals.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that order of the Board of Immigration Appeals be and it hereby is AFFIRMED and the petition for review is DISMISSED.
Petitioner Jian Hua Jiang appeals from the order of the Board of Immigration Appeals ("BIA") denying his applications for asylum and withholding of deportation under the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231, respectively. The BIA agreed with the Immigration Judge's ("IJ") determination that Jiang did not offer credible testimonial or persuasive documentary evidence in support of his claim. The petitioner, a native of the People's Republic of China, claims that he suffered past persecution and has a well-founded fear of future persecution because the Chinese Government destroyed his home after his wife failed to abort his child. Jiang alleges that the Chinese Government took this action to further its population control policies. Jiang's wife and child remain in China.
We note that Jiang's counsel failed to appear for oral argument on March 9, 2004.
The scope of our inquiry is "exceedingly narrow." Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (internal quotation marks omitted). We accept the IJ's factual determinations as long as they are supported by substantial evidence in the record. See Montero v. INS, 124 F.3d 381, 386
(2d Cir. 1997). Accordingly, we "reverse only if no reasonable fact-finder could have failed to find . . . past persecution or fear of future persecution necessary to sustain the petitioner's burden," Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000). The court "must find that the evidence not only supports th[e]
conclusion [that the applicant is eligible for asylum], but compels it." INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992)(emphasis in original); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003). As the record contains substantial evidence to support the BIA's ruling, we affirm and dismiss the petition for review.
The IJ provided strong reasons for rejecting Jiang's asylum application. He found, inter alia, that Jiang was unsure of the sex of his child; that Jiang testified in a contradictory fashion about whether he was present when authorities were alleged to have destroyed his home; and that Jiang's letter of dismissal from his employer four months after he escaped China, purporting to fire him for failing to get an abortion himself (four months after he stopped reporting for work), was not persuasive. We agree that there is substantial evidence in the record for the adverse credibility determination against Jiang on these bases.
We have carefully considered all of Jiang's arguments and find them to be without merit. We also reject summarily petitioner's appeal of the BIA's refusal to withhold deportation because such claims are subject to an even higher burden of proof than asylum claims. See Zhang v. Slattery, 55 F.3d 732, 738 (2d Cir. 1995).
For the reasons set forth above, the decision of the Board of Immigration Appeals is hereby AFFIRMED and the petition for review is DISMISSED.
FOR THE COURT:
Roseann B. MacKechnie, Clerk By:
Lucille Carr, Deputy Clerk
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This document cites
- U.S. Court of Appeals for the Second Circuit - Moussa Diallo, Petitioner, v. Immigration & Naturalization Service, Respondent., 232 F.3d 279 (2nd Cir. 2000)
- U.S. Court of Appeals for the Second Circuit - Wu Biao Chen, Petitioner, v. Immigration and Naturalization Service, Respondent., 344 F.3d 272 (2nd Cir. 2003)
- U.S. Code - Title 8: Aliens and Nationality - 8 USC 1158 - Sec. 1158. Asylum
- U.S. Court of Appeals for the Second Circuit - Xin-Chang Zhang, Petitioner-Appellee, v. William Slattery, as District Director of the New York District of the Immigration & Naturalization Service, and Roseanne C. Sonchik, as Acting Assistant District Director for Detention and Deportation of the New York District of the Immigration & Naturalization Service, Respondents-Appellants., 55 F.3d 732 (2nd Cir. 1995)
- U.S. Court of Appeals for the Second Circuit - Gloria Esperanza Montero, Petitioner, v. Immigration and Naturalization Service, Respondent., 124 F.3d 381 (2nd Cir. 1997)
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