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

2-24-2004

Xie v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 02-3615

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Recommended Citation "Xie v. Atty Gen USA" (2004). 2004 Decisions. Paper 943. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/943

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Assistant Director Anthony W. Norwood UNITED STATES COURT OF Ethan B. Kanter APPEALS FOR THE THIRD CIRCUIT John M . McAdams, Jr. Jennifer A. Parker (Argued) United States Department of Justice No. 02-3615 Office of Immigration Litigation Washington, D.C. 20044

XIN JIE XIE, Attorneys for Respondent Petitioner

v. OPINION OF THE COURT

JOHN ASHCROFT, Attorney General of the United States, SLOVITER, Circuit Judge. Respondent Petitioner Xin-Jie Xie (“Xie”) has filed the pending Petition for Review of the decision of the Bureau of Immigration Petition for Review of an Order of Appeals (“BIA”) dismissing Xie’s the Board of Immigration Appeals application for asylum and withholding of (A-70-907-033) deportation under

, 1231(b)(3). In so ruling, the BIA explicitly adopted the adverse credibility Argued October 16, 2003 finding of the Immigration Judge (“IJ”).

Before: SLOVITER, ROTH, and I. STAPLETON, Circuit Judges Xie arrived in the United States on (Filed: February 24, 2004) May 27, 1993 as a nonimmigrant visitor for business. He testified his company sent him to the United States “for a certain Marco Pignone, III (Argued) kind of product and merchandise research Wilson & Pignone team.” A.R. at 108.1 He was authorized to Philadelphia, PA 19103

1 Attorney for Petitioner There is both an Administrative Record, cited here as A.R., and an Robert D. McCallum, Jr. Appendix, a portion of which is attached Assistant Attorney General to the petitioner’s brief and the remainder Civil Division in a second volume, which we cite as Terri J. Scadron, App. The opinions of the IJ and the BIA stay in this country for thirty days. He did 1974, 1977, and 1979 respectively. In his not leave when his visa expired and on application for asylum, Xie alleged that he January 7, 1997, the Immigration and seeks asylum because he fathered three Naturalization Service (“INS”) charged children, which violated Chinese national him with deportability under 8 U.S.C. § policy of family planning. Xie alleged that 1251(a)(1)(B). He conceded deportability, he was detained in 1976 after the birth of but requested relief in the form of asylum his second child and was released after his and withholding of deportation or, in the wife had an IUD loop inserted. In his alternative, voluntary departure. Xie sworn statement supplementing his asylum claims that he “has a reasonable fear of application, Xie notes that when his wife future persecution if he is removed to became pregnant again in 1979 despite the [China].” Petitioner’s Br. at 8.2 The IJ IUD, she went into hiding at a relative’s found that Xie was not credible. The BIA home in another village and Xie went into considered Xie’s appeal, which it hiding in yet another village, leaving his dismissed with an opinion holding that the children in the care of his parents. Unable IJ’s adverse credibility finding was to locate either Xie or his wife in their supported by the record. home, the local authorities became angry, broke his door and took some of the Xie timely filed this Petition for furniture; he and his wife lost their jobs Review and we have jurisdiction under 8 and were asked to pay a fine of 5,

. When the BIA has RMB. 3 They did not have the money to rendered its own opinion, we review the pay the fine and “We decided to leave this decision of the BIA and not the IJ. Gao v. country. This is why I came to America to Ashcroft,

(3d Cir. seek a better life.” A.R. at 308. 2002). In this case, however, for reasons explained hereafter, we also have In his testimony at the hearing, Xie jurisdiction to review the IJ’s decision. stated that after his wife had given birth to their daughter in 1979, government birth II. control officials took her to the Province Hospital where she was forcibly sterilized. Xie was married in 1973, and he and his wife have three children, born in 3 Xie’s asylum petition states that he and his wife were fined 5,000 RMB at appear in both the Administrative Record the birth of their third child. Because and the Appendix. We have chosen to there is nothing in the record to indicate cite to them in the Appendix. that two separate fines were imposed and the alleged 5,000 RMB fine is never 2 The brief actually states, “if he is again referred to, we will assume he removed to Serbia” but we assume that referred to the 9,300 RMB fine discussed was a typographical error. infra.

2 Xie claimed that thirteen years later, In 1996, Congress amended the toward the end of 1992, birth control definition of refugee as follows: officials came to his home and ordered him to pay a penalty of 9,300 RMB. 4 Xie a person who has been testified that after he learned of the fine, he forced to abort a pregnancy argued with the birth control officials and or to undergo involuntary told them he had no more money; they sterilization, or who has beat him up, detained him for about a been persecuted for failure week, and released him because of his or refusal to undergo such a wife’s connections but told him he had to procedure or for other pay the balance of the penalty due within resistance to a coercive three weeks. Xie left China in February population control program, 1993. His wife and children remain in shall be deemed to have China. been persecuted on account of political opinion, and a III. person who has a well founded fear that he or she In his brief Xie states that he will be forced to undergo “established a well-founded fear of such a procedure or subject persecution on account of his political to persecution for such opinion as his wife was forcibly failure, refusal, or resistance sterilized.” Petitioner’s Br. at 6. He shall be deemed to have a argues that he is entitled to asylum as a we ll founded fea r of “refugee,” defined in the statute as: “any persecution on account of person . . . unable or unwilling to return to political opinion. . . . [his or her] country because of persecution or a well-founded fear of

(a)(42). The BIA persecution on account of race, religion, extended this provision to apply to spouses nationality, membership in a particular of persons who have undergone coercive social group, or political opinion . . . .” 8 birth control procedures. In re C-Y-Z,

(a)(42). I. & N. Dec. 915 (BIA 1997).

Neither the BIA nor the IJ reached the merits of Xie’s argument that he 4 We find nothing in the record to qualifies for asylum under the statutory support the statement in Xie’s brief that definition of refugee. As th e the penalty was $9,000. Petitioner’s Br. Government’s brief states, the IJ “denied at 5. Instead, the IJ stated that after Xie’s Xie’s claim on the basis of an adverse wife paid the officials 1,300 RMB the credibility determination and did not make balance of 8,000 RMB was equivalent to an alternative finding as to whether Xie’s approximately $1,000. evidence, if deemed credible, was

3 sufficient to meet his burden of proof.” The BIA failed to find past Govt’s Br. at 3 n.2. Xie apparently agrees, persecution because it found Xie to be as his counsel stated at the oral argument incredible. Our precedent is clear that before us that the “only issue here is when the BIA defers to an IJ, we must credibility.” review the IJ’s decision as the final agency decision. See Abdulai, 239 F.3d at 549 In its opinion dismissing Xie’s n.2. In this case, the BIA both adopted the appeal, the BIA held that the IJ’s adverse IJ’s adverse credibility determination and credibility finding is supported by the discussed some, but not all, of the record. It further stated, “[a] persecution underlying bases for the IJ’s adverse claim that lacks credibility cannot satisfy credibility determination. As to the the burdens of proof and persuasion remaining bases, the BIA also stated that necessary to establish eligibility for “the Immigration Judge found several asylum or withholding of deportation. See other inconsistencies and discrepancies Matter of M-S-,

(BIA between the respon dent’s asylum 1995); see generally Abdulai v. Ashcroft, application and his testimony.” App. at 6.

(3d Cir. 2001).” App. at 6-7. We will therefore limit ourselves to the In Senathirajah v. INS, 157 F.3d first issue as presented by the Government: 210 (3d Cir. 1998), which also involved an “Whether the Board’s finding that Xie adverse credibility finding based, in part, failed to meet his burden of proof is on an asylum application, we discussed supported by substantial evidence where both the IJ and the BIA’s decisions. W e Xie’s testimony and evidence contained did not consider the propriety of reviewing several material inconsistencies, crucial both decisions, but we noted that “the omissions, implausibilities, and was BIA’s ruling result[ed] in substantial part refuted by the State Department Report from the deference it gave the immigration and Comments?” Govt’s Br. at 3.5 judge’s decision,” and that the BIA “appear[ed] to have substantially relied upon the adverse credibility ruling of the 5 We therefore will not reach the immigration judge.” Id. at 216. Similarly, provocative issues of statutory interpretation touched upon at the oral argument. One of the issues was whether establish an irrebuttable presumption. the statutory language that a person who Another issue alluded to at the oral has undergone an involuntary argument which we do not reach is the sterilization and a person who has a fear effect of a time gap of more than 15 that she/he will be forced to undergo years between the spouse’s sterilization such a procedure “shall be deemed” to and the application for asylum. We have been persecuted on account of express no opinion on these issues and political opinion or “shall be deemed to the Government’s brief does not discuss have a well founded fear of persecution” them.

4 in Miah v. Ashcroft,

(3d Cir. discrepancies and omissions 2003), we examined the decisions of both provide specific and cogent the IJ and the BIA because the “BIA reasons for the Immigration adopted the IJ's analysis on corroboration Judge’s credibility while rejecting the IJ's conclusion determination; and (3) the regarding credibility, a conclusion which alien has not supplied a influenced the IJ's corroboration analysis.” convincing explanation for

. Likewise, the BIA in the such discrepancies and instant case did briefly discuss many of the omissions. Matter of A-S-, inconsistencies troubling the IJ and stated supra, at 1109. that “[it] believe[s] that the inconsistencies and omissions mentioned by the App. at 6. Immigration Judge actually exist in the record.” App. at 6. Although it gave only Adverse credibility determinations some examples of those inconsistencies, are reviewed under the substantial the BIA also appears to have substantially evidence standard. Gao,

relied upon the adverse credibility finding (citing Balasubramanrim v. INS, 143 F.3d of the IJ. Accordingly, we have 157, 161 (3d Cir. 1998)). Under this jurisdiction to review both the BIA’s and standard, the Board's adverse credibility IJ’s opinions. determination must be upheld on review unless “any reasonable adjudicator would In its decision, the BIA stated: be compelled to conclude to the contrary.”

(citing INA § 242(b)(4)(B), 8 U.S.C. § We give significant weight 1252(b )(4)(B)) (internal quotation to an Immigration Judge’s omitted). “[M]inor inconsistencies” do not adverse credibility finding. provide an adequate basis for an adverse See Matter of A-S-, 21 I&N credibility finding. Id. Because we Dec. 1106, 1109 (BIA conclude that there is no reason to compel 1998); Matter of Burbano, a contrary conclusion, we uphold the

(BIA BIA’s finding. 1994). Specifically, we have stated that we accord One of the principal inconsistencies deference to an adverse and omissions discussed by the BIA as credibility finding based supporting the IJ’s finding of lack of upon the inconsistencies and credibility was Xie’s failure to mention in omissions regarding events his written asylum application that his wife central to an alien’s asylum had been sterilized. App. at 6. The IJ claim where a review of the stated, “If indeed his wife had been record reveals that (1) such sterilized, this would be such a traumatic discrepancies and omissions event in both his and his wife’s life that I actually exist; (2) the find it implausible and incredible that this

5 would have been not mentioned to the application because he responded to Immigration officer and would not have question 22 that he was not detained but to been included in the I-589 application.” question 18 that he was detained after the App. at 17. We have reviewed Xie’s birth of his second child. Finally, both in asylum application and agree. In that Xie’s supplemental statement and his application, Xie mentioned that his wife testimony he states that he was detained in had an “IUD loop” inserted and that he 1992 following the fight he had with was asked to undergo sterilization (which officials regarding his payment of the fine, he apparently declined). A.R. at 308. which the IJ noted differed from the There was no reference to his wife’s response given in his asylum application. supposed forced sterilization. Given Xie’s App. at 18. Moreover, Xie’s asylum appreciation of the relevance of compelled application did not mention any fight with birth control, the BIA’s concern about officials. Inasmuch as Xie further testified Xie’s failure to mention his wife’s forced that he was only detained once, these sterilization in his original written asylum inconsistencies cannot be reconciled. application is well taken. This is indeed a significant event that one is not likely to We believe the inconsistency forget. regarding Xie’s detention is material. He purported to be able to tie the date of his The BIA also noted the detention to a particular event. The IJ inconsistency with respect to Xie’s found that this inconsistency “severely claimed detention. In his asylum weakened” Xie’s credibility. App. at 18. application, Xie stated that he was detained in 1976 after the birth of his The BIA also concluded that Xie’s second child 6 and was released only after testimony was not consistent with the his wife had an IUD loop inserted. The implementation of the one-child policy. BIA pointed out that the IJ noted that Xie App. at 6. Xie claims that his wife was testified that he was detained after the birth forcibly sterilized in October of 1979 but of his third child (which was in 1979). the BIA noted the date because “the ‘one- App. at 6. The IJ noted an inconsistency child’ policy was not promulgated until regarding Xie’s detention within the same 1979 or 1980,” (citing Bureau of Democracy, Human Rights & Labor, China–Country Conditions and Comments 6 We note parenthetically that it on Asylum Applications (Dec. 11, 1995)), appears that his second child was born and “the birth control policy was not July 13, 1977, A.R. at 88, 145, but this is implemented at the grass roots level until not the relevant inconsistency as failure the early 1980s.” App. at 6. Xie criticizes to remember the precise year of a the BIA’s interpretation of the China detention 15 years earlier may be Country Report as stating when grassroots explicable. A different inconsistency is implementation of birth control policies noted in the text. began. The Government retorts that the

6 China Report Comments do indeed state 1980s in connection with the Chinese that the family planning policy was not government’s population control policies, promulgated until 1979. that Rep ort constitutes substantial evidence in support of the BIA’s We have previously stated, conclusion that Xie’s testimony was not “Country reports . . . are the most consistent with the date of the appropriate and perhaps the best resource implementation of the one-child policy. for information on political situations in foreign nations.” Zubeda v. Ashcroft, 333 The BIA also found Xie’s F.3d 463, 477-78 (3d Cir. 2003) (internal “testimony improbable that several months quotation and citation omitted). The after his fine was imposed for violations of relevant part of the China Report states the birth control policies, which he did not that “[b]y the mid-1970s, China had fully pay, he was issued an official stepped up efforts to limit population and passport for public affairs on with which had begun to popularize the two-child he was able to travel to the United States.” family. In 1979, the PRC promulgated a App. at 6. The IJ also found it not comprehensive and highly intrusive ‘one- plausible that “the Chinese Government child’ policy. . . .” A.R. at 285. It issued him a passport, even though he continues, “H ow family plan ning owed that Government a good portion of personnel at the grass roots implemented the fine that had been levied against him.” the policy in the early 1980s has been the App. at 15. At the oral argument before subject of particular attention, but us, the Government offered some criticisms of current methods continue.” elucidation of the significance of Xie’s A.R. at 285. having received the passport on which he traveled, as the passport for public affairs Even assuming the Report was is different from the ordinary tourist vague or ambiguous, so long as the BIA passport. We believe Xie’s attempt during could have used the Report to conclude his testimony to explain the receipt of the that Xie’s sterilization claim is untenable, passport “[b]ecause it was through a the BIA is entitled to do so. In INS v. friend’s connection they gave [him] a list,” Ventura,

(2002), the A.R. at 114, is sufficiently non-responsive Supreme Court reversed a decision of the and unconvincing to support the BIA’s Court of Appeals for the Ninth Circuit that conclusion. decided an asylum application instead of remanding to the BIA. The Court noted in Because the BIA referenced with dictum that the Ninth Circuit’s reliance on approval the IJ’s findings of “other the relevant State Department report was inconsistencies and discrepancies,” we in error because the report was sufficiently review those inconsistencies even though ambiguous to suppo rt the BIA ’s they were not specifically referred to in the conclusion. Because the Report relevant BIA’s decision. The IJ noted that Xie to this case expressly refers to the early stated on his asylum application that after

7 the birth of his third child he and his wife pay for a trip back to China. The IJ stated both lost their jobs, but in his testimony that Xie “could have paid this fine while Xie stated that he did not lose his job in working and living here in the United China. Moreover, there was nothing in the States. He opted not to do so.” App. at record to reflect that his wife had ever 21. It was the IJ’s opinion that Xie “is not worked in China. paying the fine as a excuse for not returning to his country.” App. at 21. The IJ noted Xie’s contradictory testimony regarding when his belongings Xie’s sole explanation for the were confiscated. Xie stated that in July inconsistencies is to attempt to lay the 1979, when he returned to his village to responsibility on the travel agent who see his children, his parents informed him filled out the asylum application. He that Chinese officials had broken down his testified he had no idea what it was. A.R. door and taken all of his belongings while at 125. The IJ stated: he was away. He also testified that his wife told him that since he has been here the Court will not buy into in the United States in 1993, the an individual trying to put government has taken all of his blame on either an attorney belongings. Although he testified to two or a travel agency or anyone insta n c e s w h e n t h e g o v e rn m e n t else in the completion of the confiscated his belongings, both his I-589 as a scapegoat to asylum application and sworn statement avoid being found incredible discuss only one such incident. 7 because of contradictions and a conflict between the It was also evident that the IJ testimony given and the disbelieved Xie’s testimony that he left his d o c u m e n t a r y e v i d en c e wife and children in China and is afraid to presented. On redirect return home because he would be required examination the respondent to pay the balance of the fine of about again stated for the record $1,000. Xie had been working in the that he does not know what United States for a number of years, and is contained in his affidavit. sent $300 a month back to China for the support of his family. App. at 21. He told App. at 19. The IJ viewed this explanation his attorney that he has enough money to as suspect.

In this connection, we note that Xie 7 Xie’s supplemental statement had a responsible position in China. He explicitly discusses the 1979 incident; was second in command at a factory that the reference in his asylum application is manufactured religious incense papers not dated but it also appears to reference with six or seven employees under him. the 1979 incident. The IJ stated that he did not believe Xie

8 would “just allow[ ] any travel agent to put not a convincing response to the numerous anything down on [his] application.” A.R. inconsistencies that the BIA and the IJ at 141. The differences in Xie’s accounts noted. of his detention are too specific and too dissimilar to be attributed to the In a number of opinions this court incompetency of the preparer. The has declined to give much significance to strength of these omissions is sufficiently discrepancies in statements made when the substantial to sustain the BIA’s adverse applicant has arrived at the point of entry. credibility finding. The BIA’s assessment See, e.g., Balasubramanrim, 143 F.3d at of Xie’s credibility on the various 162-63 (“[T]he hand written record of the inconsistencies that it had noted was just airport interview . . . may not be reliable . as damning, as the BIA stated “[w]e find . . . [T]he airport statement is not an the respondent’s explanations of his application for asylum. The questions inconsistencies to be unconvincing.” App. posed were not designed to elicit the at 6 (citing Matter of A-S, 21 I. & N. Dec. details of an asylum claim, and it appears 1106, 1109 (BIA 1998)). Xie argues, “It is the airport examiner . . . had no interest in unclear why the B oard and th e developing the details of a potential Immigration Judge assume that Petitioner asylum claim.”); Senathirajah v. INS, 157 controlled the content of his original F.3d at 218 (holding “the immigration application. It is apparent that while some judge and the BIA gave far too much information is correct, other information is weight to the affidavit taken during wrong.” 8 Petitioner’s Br. at 12. That is Senathirajah’s airport interview”). Those cases differ from this case. Xie arrived legally on an official visa on May 27, 8 The Petitioner also argues that the 1993. He did not complete his asylum IJ and BIA reliance on the asylum application until almost a month later. application when prepared by an Further, he was not questioned by unauthorized representative (a travel potentially intimidating immigration agent) is a violation of due process. officials, but by an agent of a travel Petitioner brings this argument for the agency. There was no reason for him to first time on appeal, and therefore there have been beset by the fear and confusion is no record to review on this issue. that immigrants may experience during an Section 1252(d)(1) of Title 8 provides airport interview. that a court of appeals may review final orders only if the alien has exhausted all We have also noted that available remedies, and because this “immaterial discrepancies between airport court has described statutory exhaustion interviews and subsequent testimony requirements as being jurisdictional, should not be used to make adverse Massieu v. Reno,

(3d credibility determinations.” Mulanga v. Cir. 1996), we are without jurisdiction to Ashcroft,

(3d Cir. decide this issue. 2003). However, as explained throughout

9 this opinion, the discrepancies in the IJ, provided the required “specific, cogent instant case go to the heart of the claim. reasons” for the adverse credibility finding.9 Senathirajah, 157 F.3d at 216. The IJ concluded that based on his Nothing in the record compels a adverse credibility determination, Xie has contrary conclusion, and accordingly, we not established a well-founded fear of will deny the petition for review. persecution if his application for asylum were denied and he was returned to China. Again, based on his view that Xie was not honest, forthright, and credible, the IJ concluded that Xie was not a person of good moral character, and denied voluntary departure. In its decision dismissing the appeal, the BIA did not consider the voluntary departure issue, but inasmuch as it found that the IJ’s findings of adverse credibility were supported by the record, there was no need for it to do so.

IV.

This court has held on more than one occasion that we must sustain the 9 The IJ also based his adverse BIA’s adverse credibility determination if credibility finding on Xie’s demeanor. there is substantial evidence in the record We are aware of the skepticism of one of to support it. See, e.g., Gao, 299 F.3d at our colleagues on the weight accorded to 272. We discussed the substantial demeanor, i.e. the “squirm” test, which evidence test in a recent en banc decision he expressed in his separate opinion in where we stated, “We look at an adverse Dia, 353 F.3d at 273-80 & n.8 (McKee, credibility determination to ensure that it J., concurring in part and dissenting in was appropriately based on inconsistent part). In this case, the IJ explained the statements, contradictory evidences, and basis for his opinion, i.e. that Xie kept inherently improbable testimony . . . in his hands “firmly placed in his lap” while view of the background evidence on testifying to rather easy questions but put country conditions.” Dia v. Ashcroft, 353 his hands in front of his face when asked F.3d 228, 249 (3d Cir. 2003) (en banc) questions that were difficult to answer. (internal quotations and citations omitted). App. at 19. The BIA opinion did not refer to Xie’s demeanor and we therefore After consideration of the record, do not rely on this aspect of the IJ’s we conclude that the BIA, and before it the opinion.

10