Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

2-13-2009

Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1902

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 08-1902 ___________

CHUI JIAN LIU; LI MEI PAN, Petitioners vs.

ATTORNEY GENERAL OF THE UNITED STATES ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A73-611-330 and A73-660-891) Immigration Judge: Honorable Rosalind K. Malloy ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 5, 2009 Before: FUENTES, WEIS and GARTH, Circuit Judges Opinion filed February 13, 2009 ___________

OPINION ___________

PER CURIAM.

The petitioners, who are citizens of the People’s Republic of China, seek

review of a final order of the Board of Immigration Appeals (“BIA”). For the following

reasons, we will deny the petition.

1 I.

The lead petitioner, Chui Jian Liu, entered the United States in January

1992, at which time he was detained and placed in exclusion proceedings. Soon

thereafter, he filed an application for asylum claiming that he would be persecuted if he

was returned to China because he participated in the 1989 Tiananmen Square

demonstrations. However, he then submitted a second asylum application based on

China’s coercive family planning policies. On June 8, 1992, after an exclusion hearing,

his applications were denied and Liu returned to China.

Liu claims that he married the secondary petitioner, Lei Mei Pan, in China

on January 8, 1993. They both came to the United States on or about February 15, 1994.

On August 26, 1994, Liu submitted a third asylum application under the name Fu Bao Lin

claiming that his wife had died due to a forced late-term abortion in China. After being

interviewed in 2000 regarding the application, Liu was served with a Notice to Appear on

June 19, 2000. Pan, who was alleged to have died, received a notice to appear on the

same day. Liu and Pan conceded removability, but on June 22, 2005, filed additional

applications for asylum, withholding of removal, voluntary departure, and relief under the

Convention Against Torture (“CAT”), claiming that Pan was forced to have a mid-term

abortion in September 1993, and that they would be sterilized if they returned to China

because they have three children who were born in the United States.

2 On August 22, 2006, the Immigration Judge (“IJ”) denied all requested

relief and found Liu to be not credible. In making the credibility determination, the IJ

considered Liu’s previously-filed and admittedly false asylum applications, and his

admittedly false testimony at his 1992 removal proceeding. See

(b)(1)(B)(iii). The IJ also found that Pan’s medical records from the University of

Pennsylvania, which stated that she had never had an abortion, justified an adverse

credibility finding. The IJ then determined that the petitioners did not meet their burden

of proof for establishing past persecution or a well-founded fear of future persecution. As

to the fear of future persecution, the petitioners did not submit any materials refuting the

2004 and 2005 U.S. State Department Country reports, which the IJ determined do not

support the claim that the petitioners would be sterilized upon their return to China.1

Moreover, the IJ concluded that the possible penalties for returning to China with three

U.S.-born children—denial of social benefits for the children and an administrative

fine—do not amount to persecution.

On February 3, 2008, the BIA denied the petitioners’ appeal. The BIA

found that there was no clear error in the IJ’s adverse credibility finding and agreed with

the bases for the IJ’s decision. The BIA then determined that, even if the petitioners were

1 Although the government apparently submitted only the 2004 country report, the IJ took administrative notice of the 2005 report. As we have stated, these reports are substantially the same regarding the threat of forced sterilization for Chinese citizens who return to China with foreign-born children. Yu v. Att’y Gen.,

, 348 n.1 (3d Cir. 2008).

3 credible, they failed to meet their burden of proof. In particular, the BIA concluded that

Pan’s medical records negated the claim of past persecution, and that the submission of

vague and incomplete “extra birth penalty” documents was insufficient to demonstrate

that Pan had suffered a forced abortion, or that the “extra birth fine” constituted

persecution. Citing to Matter of J-W-S-,

(BIA 2007) and Matter of J-

H-S-,

(BIA 2007), the BIA also determined that the petitioners did

not establish an objective fear of future persecution based on the potential of forced

sterilization because they failed to present any evidence refuting the 2004 and 2005

country reports.

The petitioners seek review in this Court of the BIA’s denial of their appeal;

the government opposes the petition for review.

II.

We have jurisdiction under

(a)(1). Because the BIA

substantially relied upon the IJ’s adverse credibility determination, we review both the

BIA’s and the IJ’s decisions with regard to the credibility determination. See Xie v.

Ashcroft,

(3d Cir. 2004). In addition, because the BIA issued a

decision on the merits as to whether the petitioners proved past persecution and a well-

founded fear of future persecution, we review the BIA’s opinion as to those findings. See

Abdulai v. Ashcroft,

, 548-49 n.2 (3d Cir. 2001). We review findings of

fact—including adverse credibility findings—under the substantial evidence standard and

4 will uphold the BIA’s determinations “unless the evidence not only supports a contrary

conclusion, but compels it.” Zubeda v. Ashcroft,

(3d Cir. 2003)

(internal citation omitted).

The IJ delineated specific, cogent reasons that bear a legitimate nexus to the

adverse credibility determination, and the finding is thus supported by substantial

evidence. See Dia v. Ashcroft,

(3d Cir. 2003); Balasubramanrim v.

INS,

(3d Cir. 1998). Despite the petitioners’ argument to the contrary,

the IJ appropriately based her decision on Liu’s fraudulent prior applications, his false

testimony at the 1992 exclusion hearing, and the medical records showing that Pan never

had an abortion.

Substantial evidence also supports the BIA’s finding that the petitioners did

not meet their burden of establishing past persecution or a well-founded fear of future

persecution. See

(a)(42)(B). First, as the BIA recognized, the medical

records directly contradict the petitioners’ claim that Pan was forced to have an abortion

in 1993, and the “extra birth penalty” documents that the petitioners submitted do not

refute the medical records. Nor does an extra-birth fine itself constitute persecution in the

form of a “deliberate imposition of severe economic disadvantage.” Li v. Att’y Gen.,

(3d Cir. 2005). Second, although forced sterilization constitutes

persecution under

(a)(42), substantial evidence supports the BIA’s

finding that the petitioners did not meet their burden of proof to support a claim on this

5 ground. The 2004 country report rejects the notion that returning Chinese citizens face

forced sterilization if they have had multiple children outside the country, and “[t]his

Court has repeatedly recognized that State Department reports may constitute substantial

evidence.” Yu v. Att’y Gen.,

(3d Cir. 2008). Given that the petitioners

did not submit any evidence disputing the country reports, there is no compelling reason

to reverse the BIA’s decision. Additionally, to the extent that the petitioners did not

waive review of their applications for withholding of removal or CAT relief, the BIA

properly rejected those claims. See

Accordingly, after a careful review of the record, we conclude that the BIA

did not abuse its discretion in denying Liu’s and Pan’s appeal, and we will deny their

petition for review.