Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-24-2004

Liu v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 02-4334

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Recommended Citation "Liu v. Atty Gen USA" (2004). 2004 Decisions. Paper 539. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/539

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UNITED STATES COURT OF JOSEPH C. HOHENSTEIN (Argued) APPEALS Nationalities Service Center FOR THE THIRD CIRCUIT 1300 Spruce St. Philadelphia, PA 19107 ____________ Counsel for Petitioner No. 02-4334 ____________ ROBERT D. McCALLUM, JR. TERRI J. SCADRON GUI CUN LIU; XIU DING LIU, ANTHONY W. NORWOOD (Argued) Office of Immigration Litigation Petitioners Civil Division U.S. Department of Justice v. P.O. Box 878, Ben Franklin Station Washington, DC 20044 John Ashcroft, ATTORNEY GENERAL OF UNITED STATES OF AMERICA, Counsel for Respondent Respondent ____________________ ____________________ OPINION OF THE COURT ON PETITION FOR REVIEW OF AN ____________________ ORDER OF THE BOARD OF IMMIGRATION APPEALS ALITO, Circuit Judge: (No. A73 168 631) Mr. Gui Cun Liu and M rs. Xiu ____________________ Ding Liu (“the Lius”) petition for review of an order of the Board of Immigration Argued: December 4, 2003 Appeals (BIA) affirming the denial of their application for asylum and withholding of Before: SLOVITER and ALITO, Circuit deportation. Specifically, the Lius allege Judges, and OBERDORFER, District that the BIA erred in (1) affirming the Judge* opinion of the Immigration Judge (IJ) without opinion, in violation of their Due Process rights, (2) improperly finding that the Lius’ testimony was not credible, (3) * The Honorable Louis F. Oberdorfer, rejecting documentary evidence for failure Senior District Judge for the District of to comply with the authentication Columbia, sitting by designation. procedures detailed in

, and (4) ignoring favorable new evidence faith. suggesting increased likelihood of The Lius presented to the IJ persecution in their home country. documentary evidence supporting their We agree that the IJ’s improper claims, including a pair of certificates application of § 287.6 caused him to purportedly confirming that the two disregard evidence that, if duly considered abortions had in fact been performed in in the first instance, might have resulted in China on the dates specified. See A.R. a favorable determination regarding 272-73, 445-46. The Lius’ counsel credibility for the Lius. Because the explained, upon submission of this adverse credibility finding was the crux of evidence, that it had proved impossible to the order denying relief, we will grant the comply with the regulatory authentication petition for review, vacate the order of the procedure set forth in § 287.6; he had BIA, and remand. “attempted to comply with this procedure, but [was] told by the Chinese officials at I. the provincial level that no such The Lius, both citizens of the authentication was performed at that People’s Republic of China, seek asylum level.” A.R. 268; see also A.R. 289 (letter on the ground that they are unable to return from U.S. Consulate in China to Lius’ to their native country “because of counsel, explaining that no authentication persecution or a well-founded fear of can be performed until documents have persecution on account of race, religion, been signed and notarized by a local nationality, membership in a particular Chinese foreign affairs official). The IJ social group, or political opinion.” 8 nevertheless refused to accept this U.S.C. § 1101(a)(42). In particular, the explanation: Lius claim that Mrs. Liu was twice forced The regulations are specific, by the Chinese government to undergo an Mr. Hohenstein. It says they abortion,1 and that both face government shall be certified. There’s persecution on account of their Christian little or no weight that I can give a document that’s in 1 violation of the regulations, 8 U.S.C. 1101(a)(42) provides: “[A] whether it be your client’s person who has been forced to abort a inability to obtain proper pregnancy . . . shall be deemed to have certification of a document been persecuted on account of political or wh atev er. The opinion . . . .” See also In Re Matter of regulations say the C-Y-Z,

(BIA documents shall be. There 1997) (holding that past persecution of one is no wiggle room there. spouse can be established by coerced So, what you’ll have to do abortion or sterilization of the other is, I’ll allow it to remain in spouse).

2 evidence but there’s not changing your testimony. much weight or any weight You just told me the nurse that I can give a noncertified told you it was a baby girl document. and it was dead, then you say it was a baby boy and it A.R. 184-85. was dead. After hearing and considering A. No, I meant that the testimony from both Mr. and Mrs. Liu, the nurse was a girl. IJ rejected their claims for asylum and withholding of deportation. In so Q. Ma’am, just look this deciding, the IJ relied on findings of way. You see the word several internal inconsistencies in the stupid written across my testimonies which rendere d them forehead? “incredible.” See A.R. 79 (noting A. No. “contradictions between the respondents’ written applications and their testimony Q. You think I’m going to b e f o r e t h e C o u r t ” a s we ll as believe you when you “contradictions in the testimony given by change your testimony like the respondents themselves”). In that and give me such a half particular, the IJ noted one “dramatic” baked reason for changing inconsistency (see A.R. 76) in Mrs. Liu’s the testimony? testimony regarding her second abortion, A. No, I did not change. as reproduced in part here: A.R. 214-15; cf. A.R. 306 (affidavit of Q. Do you know if the baby Mrs. Liu, stating that second aborted fetus was born alive or if it was was male). The IJ did not make reference born dead? to the abortion certificates in analyzing this A. They, the nurse told me or any other perceived inconsistency cited that it was a baby girl but in the final decision, although he did state dead. at the opening of his opinion that he had considered “all of the documentation that Q. What did the nurse tell has been submitted thus far by both sides you again? in this matter.” A.R. 66. A. No, she told me it was a On appeal to the BIA, a single boy and it’s, it’s dead. member of the BIA elected to affirm the IJ’s decision without opinion, pursuant to

(e)(4). This appeal JUDGE TO MRS. LIU Q. Wait, why do you keep

3 followed.2 must be because the IJ took her confusion as evidence that the inconsistently- II. described fetus never actually existed.4 To We begin our analysis by evaluating the extent that there exists competent the IJ’s interpretation and application of documentary evidence to the contrary (that § 287.6 in effectively excluding the is, that the abortion was performed as abortion certificates.3 We focus first on described by Mrs. Liu), the credibility this evidentiary issue because we believe it determination of the IJ must accordingly follows from the IJ’s reliance on Mrs. be called into question. Liu’s testimony regarding the gender of The authentication regulation of 8 the fetus that the IJ was under the C.F.R. § 287.6 provides, in pertinent part: impression that the second abortion had, in fact, never occurred. In other words, if In any proceeding under this Mrs. Liu’s confusion on this point is to be chapter, an official record or understood as impugning her credibility, it entry therein, when admissible for any purpose, 2 shall be evidenced by an Because the BIA affirmed without official publication thereof, opinion, it is the reasoning and decision of or by a copy attested by an the IJ that we review on appeal. See Dia officer so authorized. . . . v. Ashcroft,

(3d Cir. The attested copy, with the 2003) (en banc). additional foreign 3 certificates if any, must be We speak of “exclusion” even though certified by an officer in the we recognize that the IJ technically Foreign Service of the admitted the certificates into evidence. United States, stationed in See A.R. 185. While the IJ’s evidentiary the foreign country where rulings are ambiguous as to whether he the record is kept. intended to give the certificates “little weight” or “no weight,” see

the fact

(emphasis added). As noted earlier, the that the IJ never referred to the certificates IJ focused on the word “shall” in applying in his final decision suggests that they the regulation, emphasizing that it left him were not given any weight in making the with “no wiggle room,” and that the ultimate decision. That the opinion abortion certificates could hence be contained boilerplate to the effect that “all of the documentation” had been 4 considered seems to us irrelevant. See For example, it makes little sense to A.R. 66. Of course, if a document is think that the IJ could have taken the admitted into evidence with the caveat that inconsistency regarding g ender as it will be given “no weight,” that is evidence that Mrs. Liu did indeed have the tantamount to an exclusion from evidence. abortion, but did so voluntarily.

4 accorded only little or no evidentiary Moreover, we fully agree, as the weight. A.R. 185. government states in its supplemental brief, that “asylum applicants can not Our precedent states that “[a]n always reasonably be expected to have an agency’s interpretation of its own authenticated document from an alleged regulation is ‘controlling . . . unless it is persecutor.” Letter Brief at 3; cf. plainly erroneous or inconsistent with the Senathirajah v. INS,

, 215-16 regulation.’” Abdulai v. Ashcroft, 239 (3d Cir. 1998) (“It is obvious that one who F.3d 542, 552 (3d Cir 2001), quoting escapes persecution in his or her own land Bowles v. Seminole Rock & Sand Co., will rarely be in a position to bring

, 414 (1945). At oral documentary evidence or other kinds of argument, we specifically requested corroboration to support a subsequent further guidance from the government as claim for asylum. . . . Common sense to its official interpretation of the establishes that it is escape and flight, not regulation. In its supplemental brief litigation and corroboration, that is submitted in response, the government foremost in the mind of an alien who contended that “8 C.F.R. § 287.6 is not an comes to these shores fleeing detention, absolute rule of exclusion, and is not the torture and persecution.”). We believe that exclusive means of authenticating records the Lius should have been allowed to before an immigration judge.” Letter Brief attempt to prove the authenticity of the at 4. In so doing, it cited with approval abortion certificates through other means, Khan v. INS,

(9th Cir. especially where (as here) attempts to 2001), and Georgis v. Ashcroft, 328 F.3d abide by the requirements of § 287.6 failed 962 (7th Cir. 2003), which held that “[i]t due to lack of cooperation from was error to exclude . . . official records government officials in the country of based solely on the lack of consular alleged persecution. certification.” Khan,

.5 The government contends that, in While the government’s reading of any event, the improper application of § 287.6 may not be the most obvious one, § 287.6 was not prejudicial here since we cannot say that it is plainly erroneous there was evidence in the record indicating or inconsistent with the regulation.6 that official documents from Fujian (such as the abortion certificates here) are 5 At least one additional court of appeals commonly forged and thus are “virtually has recently adopted the holding in Kahn. useless” as cred ible co rrobo rating See Yongo v. INS,

(1st evidence. Letter Brief at 4; see A.R. 379 Cir. 2004). (State Department Country Report for

6 Cf. Gutierrez de Martinez v. Lamagno,

(1995) (“Though ‘shall’ sometimes use, or misuse, ‘shall’ to mean generally means ‘must,’ legal writers ‘should,’ ‘will,’ or even ‘may.’”).

5 China). However, the government’s Specifically, we do not believe that suggestion that the IJ relied (at least, in the other inconsistencies cited by the IJ, part) on the Country Report in his rejection even when viewed together as a whole, of the abortion certificates is simply amount to substantial evidence that the inaccurate. It is perfectly clear that the IJ Lius were not credible. For example: based his decision on § 287.6 alone. See • The IJ found a “diametrical A.R. 184-85; cf. A.R. 95-96 (rejecting contradiction” in the fact other evidence under § 287.6). We may that Mr. Liu had listed only not affirm the exclusion of evidence on one child in his original I- grounds entirely different from those relied 589 application, but later upon by the agency. See SEC v. Chenery testified that he had two Corp.,

(1947) (“[A] children. A.R. 69. A reviewing court, in dealing with a cursory examination of the determination or judgment which an record reveals that, at the administrative agency alone is authorized time that the original I-589 to make, must judge the propriety of such was filled out (November action solely by the grounds invoked by 21, 1993), his second child the agency.”). had not even been born yet.7 We conclude that

is not an absolute rule of exclusion, and is • The IJ found a discrepancy not the exclusive means of authenticating in the fact that Mrs. Liu records before an immigration judge. testified that she was (1) Accordingly, it was legal error for the IJ to required to check in with the reject the abortion certificates on that authorities every three ground alone. months following her first III. abortion and (2) required to check in with the authorities Against the background of this every three m onth s erroneous evidentiary ruling, we now f o l l o wing her s e c o nd evaluate the IJ’s finding that the Lius were abortion. A.R. 78-79. Of not credible. Because the abortion course, as a logical matter, certificates, if found to be genuine, would there is simply no conflict or corroborate Mrs. Liu’s testimony that she had two abortions performed on her—whether or not she misspoke or got 7 confused (or lied) on the point of the In fact, the second child was added to second fetus’s gender—we believe that the form when it was later corrected by remand to the BIA to reconsider the Mr. Liu. Compare A.R. 398, 402 (original credibility issue is appropriate. I-589) with A.R. 393, 397 (amended I- 589).

6 inconsistency between those accepted Christianity (by two statements. “kneel[ing] down an d accept[ing] [his] sin”), which occurred immediately • The IJ found that Mr. Liu before leaving China in contradicted himself with November 1991. A.R. 131, respect to the date and 134; cf. A.R. 396. Mr. Liu location of his baptism. expressly distinguished this A.R. 70. Mr. Liu repeatedly confession of faith from the testified that he had been actual baptism which was baptized in the United States performed later. A.R. 131. in 1996, see A.R. at 131, There is no basis for a 137, which is consistent finding of a discrepancy with the documentary here. evidence presented, see • Likewise, the finding of a A.R. at 313. It is true that discrepancy where Mrs. Liu Mr. Liu once responded alternately testified that she with the date November 25, was (1) four months and (2) 1991, when asked when he five months along with the had been baptized. A.R. pregnancy at the time of the 130. This confusion almost second abortion is trivial, certainly resulted from the and does little or nothing to apparent difficulty the contribute to substantial translator had in expressing evidence of falsehood on the the concept of baptism. See part of the Lius. A.R. 78; A.R. 131-32.8 Mr. Liu’s see Gao v. Ashcroft, 299 subsequent answers made F.3d 266, 272 (3d Cir. 2002) clear that what he had been (minor inconsistencies not a referring to in connection proper f oundation for with that date was the day adverse credib ility on which he form ally determination). • The IJ relied heavily upon 8 M r . L i u ’ s s ta t e m e n t It is evident that translation difficulties originally filed with his seriously plagued the entire hearing. See, signed I-589 form (and later e.g., A.R. 103-104 (inconsistent testimony retracted by him), in which due to confusion regarding translation of it was claimed that he had “Catholic” and “Baptist”); A.R. 67-69 been jailed and fined for (repeated questions yielding absurdly failure to comply with the nonresponsive answers).

7 one-child policy. A.R. 71- decision is based. We are obliged to 72. The IJ noted that, under remand to the agency to reconsider and

, Mr. Liu’s reweigh the facts, rather than attempting to signature on the form gave undertake that task ourselves. INS v. rise to a presumption that he Ventura,

(2002).9 was aware of the contents of IV. that application. But the IJ did not explain why this We grant the Lius’ petition for presumption had not been review, vacate the order of the BIA, and successfully rebutted by remand to the BIA for further proceedings o t h e r e v i d e n c e (m o s t consistent with this opinion.10 notably, the fact that the form is filled out in English, 9 which Mr. Liu does not Specifically, our decision should in no speak, without listing the way be read as requiring the BIA to find name of a third-party that the abortion certificates are genuine. preparer, as well as M r. Rather, the BIA may proceed on remand as Liu’s testimony regarding it does with respect to any evidentiary the explanation of the question, evaluating issues of materiality, statement before the asylum relevance, probity, and the general officer: “I said I didn’t requirements of due process. See 8 C.F.R. know what it is”). A.R. at § 1240.7(a); Bustos-Torres v. INS, 898 162. F.2d 1053, 1055 (5th Cir. 1990). For example, the BIA may (or may not) choose The other inconsistencies cited by to order forensic testing of the original the IJ as evidence of incredibility are certificates (as proposed by the Lius), take similarly ill-foun ded, tr ivial , o r additional testimony, seek guidance from nonexistent. Absent the one glaring State Department reports, or evaluate the inconsistency regarding the baby’s gender efforts the Lius took in attempting to avail (which may or may not be rendered less themselves of the regulatory certification relevant in light of the consideration of procedure. documentary evidence on remand), we do 10 not think that substantial evidence supports Our disposition of this case renders the finding that the Lius were not credible. unnecessary any inquiry into the other two arguments raised by the Lius on appeal. Finally, we note that remand is However, we note that the due process appropriate where, as here, we have made attack on the affirmance without opinion a legal determination (e.g., regarding procedures has essentially been foreclosed a d m i s s i b i l i t y o f e v i d e n ce ) t h at by our en banc decision in Dia v. Ashcroft, fundamentally upsets the balancing of

(3d Cir. 2003). We also facts and evidence upon which an agency’s note, with respect to the claim that the BIA

8 failed to consider new evidence regarding “changed circumstances” in China, that while generally the “only vehicle for introducing new evidence post-decision is a motion to reopen,” Walters v. Ashcroft,

(S.D.N.Y. November 3, 2003), the BIA may choose to consider this evidence on remand, if it deems such action appropriate.

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