                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3427




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 06-3427


                                     XIU CAI LI,
                                                   Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A95-673-377
                     Immigration Judge: Charles M. Honeyman


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 28, 2007


                Before: McKEE, BARRY, and FISHER, Circuit Judges

                         (Opinion Filed: November 13, 2007)


                                       OPINION



BARRY, Circuit Judge

                                           I.

      Petitioner Xiu Cai Li seeks review of a final order of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order denying her application
for asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the BIA affirms

and adopts the IJ’s decision without opinion, we review the decision of the IJ. Xia Yue

Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005). We will deny the petition for

review.

                                             II.

       The procedural history and facts of this case are well known to the parties, and

need not be reprised in any detail. Simply stated, Li, a citizen of the People’s Republic of

China, entered the United States without documentation on August 11, 2004. She was

served with a Notice to Appear charging that she was inadmissible as an immigrant not in

possession of valid entry documents in violation of section 212(a)(7)(A)(i)(I) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Li conceded

the charge.

       On February 2, 2005, Li filed an application for asylum and withholding of

removal based on political opinion and membership in a particular social group, and for

protection under the CAT. At a February 14, 2005 hearing before the IJ, she testified that

shortly after her grandfather became ill, she called her aunt, who told her about Xiang

Gong, a meditative Chinese practice known to have healing effects, and sent her materials

concerning its teachings. Li and her family began to practice Xiang Gong, and her

grandfather’s health improved. In February and March of 2004, she and her family began

to tell friends and neighbors about the “good news” of Xiang Gong. In April 2004, while

                                             2
Li was away from home, the police arrested her parents, siblings, and her cousin’s wife,

who was pregnant with her third child. Li’s parents were beaten and interrogated and

forced to renounce Xiang Gong. Her cousin’s wife was fined 15,000 RMB and a forced

abortion was performed. Upon learning of these events, Li hid at her uncle’s house.

Believing she would be safer, Li’s family sent her out of the country.

       On February 14, 2005, the IJ, in an oral decision, denied Li’s application and

ordered her removed, concluding that, aside from separate burden of proof issues, a

“plethora of credibility problems” warranted an adverse credibility finding. (A.R. 75-76.)

The IJ found that Li’s application contained omissions and inconsistencies and that there

were discrepancies between the application and her testimony, with her explanations

“implausible.” By order dated June 19, 2006, the BIA adopted and affirmed the IJ’s

decision, found that the adverse credibility determination was not clearly erroneous, and

dismissed the appeal. Li now petitions for review, arguing that the adverse credibility

determination was not supported by substantial evidence and that she not only has a well-

founded fear of persecution were she to be returned to China, but that it is more likely

than not that her life or freedom would be threatened, including by torture, because of her

participation in the practice of Xiang Gong.1




1
 Li understandably does not renew the claim she made to the IJ that she was approaching
“marriage age” and might get married at some point in the future, thus facing – after she
had one child – an IUD insertion or sterilization.
                                             3
                                            III.

       An alien may qualify for asylum if he or she can demonstrate “past persecution or

a well-founded fear of persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.” INA § 208(b)(1), 8 U.S.C.

1101(a)(42)(A). To be eligible for withholding of removal, the applicant must establish a

“clear probability” that his or her life or freedom would be threatened in the proposed

country of removal. He Chun Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). To

obtain relief under the CAT, an applicant must demonstrate that it is more likely than not

that he or she will be tortured in that country. 8 C.F.R. § 208.16.

       We review the decisions of immigration judges, including adverse credibility

determinations, under the substantial evidence standard, which requires us to ascertain

“whether the determination is supported by evidence that a reasonable mind would find

adequate.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). It is a high

standard. Only “if no reasonable fact finder could make that finding on the administrative

record” will the finding not be supported by substantial evidence. Id. An IJ’s adverse

credibility determination must be based on “specific, cogent reason[s],” and “not on

speculation, conjecture, or otherwise unsupported personal opinion[s].” Id. at 250.

“Minor discrepancies that do not go to the ‘heart of the . . . claim’ do not merit an adverse




                                              4
credibility finding,” Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir. 2006) (ellipses

in original). 2

                                             IV.

        The IJ found that Li had failed to meet her burden of proof, primarily resting that

conclusion on an adverse credibility determination. Although it seems, at least to us, that

certain of the problems the IJ identified in support of the adverse credibility determination

were minor in the extreme, substantial evidence nonetheless supported that determination.

        We begin with what we believe to be the more minor problems. For one, Li’s

application states:

        The police threatened my parents . . . . They demanded my parents to sign
        letters stating they would renounce the heretical beliefs and not disturb the
        people around with superstition. They also demanded a fine of 15,000
        RMB due to my cousin’s wife being discovered.

(A.R. 317.) When the IJ asked who was fined the 15,000 RMB, Li responded, “My

cousin’s wife.” (A.R. 121.) The IJ then asked why the application seemed to suggest that

Li’s parents were fined. Li responded: “Application? It should be that my cousin’s wife

is the one being fined for 15,000.” (A.R. 121-122.) Li repeated that it was her cousin’s

wife that was fined, but that she did not know the exact details because she had heard




2
  Applications for asylum, withholding, or other relief from removal made after May 11,
2005 are subject to new standards regarding credibility determinations which allow the
factfinder to consider inconsistencies, inaccuracies, and falsehoods in an applicant's
statements without regard to whether they “go[ ] to the heart of the applicant's claim.”
REAL ID Act of 2005, 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C).
Li filed her application on February 2, 2005 and is subject to the INA prior to the
amendments.
                                              5
about this from her father. The IJ concluded that this testimony was inconsistent with the

application and was a “significant credibility factor.” (A.R. 76.)

       To be sure, the testimony appears inconsistent with the application but we do not

understand what was so “significant” about it in terms of Li’s credibility even if the

application was, as the IJ said, prepared by current counsel rather than a non-attorney

community preparer. Whether her cousin’s wife or her parents were fined for the wife’s

violation of the one-child policy had no bearing on whether Li has a well-founded fear of

persecution or would be tortured if returned to China because she practiced Xiang Gong

before she fled.

       Another problem identified by the IJ which, again, was minor at best, was the

omission of Li’s siblings’ arrest from her application. Li testified, however, that her

siblings were detained for only an hour or two for the purpose of “education” and were

then released to school. Again, this minor omission did not go to the heart of her claim

and, in our view, provides little, if any, support for the adverse credibility determination.

       But the decision of the IJ went well beyond these minor difficulties. First, the IJ

identified an inconsistency between the application and the supporting affidavit. In the

application, Li stated that her aunt sent tapes and books to her family so that they could

learn the practice of Xiang Gong, but Li’s affidavit stated that she brought the materials to

her family. In her testimony, Li tried to explain the inconsistency, unsuccessfully in our

view, by stating that because she called her aunt and asked for the materials, she

“brought” the materials to her family. It appears to us, as it did to the IJ, that Li was

                                               6
attempting to portray herself as the instigator of the family’s involvement with Xiang

Gong, presumably to make it appear more likely that she would be persecuted if she were

to return to China. In this connection, Li also testified that her father told people in the

community that she was the one responsible for acquiring the materials. The IJ

concluded that, given the Chinese government’s view of Xiang Gong, it was “highly

suspicious” and “somewhat incredulous” that the family would attempt to pin the blame

on Li for acquiring the materials. (A.R. 77.)

       The IJ also found an omission from the application that he believed to be

significant because it went to the heart of Li’s claim. We agree. Li testified that she

spoke to her father two months before the hearing. It was during this phone call that her

father supposedly told her that the police continued to come to their home and asked the

family about her whereabouts. When the IJ asked Li why she failed to include this

information in her application (information which even she concedes would “certainly

have bolstered the application,” Pet. Br. at 17), Li responded only that she failed to do so

because the application form was not very detailed. The IJ also noted, importantly, that

there is “no evidence,” aside from being asked about Li’s whereabouts, that after the one

incident in April 2004, the family has had any problems whatsoever. This, too, was a

“significant credibility factor.” (A.R. 77.) It was “implausible,” in his view, and even if

the rest of her story were true, that the police would focus on Li rather than the heads of

the household. At minimum, he believed, she was “embellishing” her claim to make it




                                                7
appear that she was viewed by the police as the ringleader in spreading Xiang Gong.

(A.R. 79.)

       The adverse credibility determination aside, the IJ also found it “striking” that at

the hearing Li did not produce the aunt with whom she was then living or even her

affidavit to corroborate Li’s testimony as to a conversation the aunt had with Li’s father,

in which her father purportedly described the reasons why Li came to the United States.

(A.R. 77-78.) The IJ found such corroboration to be both reasonable and expected, and

Li’s explanation that her aunt would have been nervous and, in any event, the information

not needed, was “implausible.” (A.R. 78.) And the IJ reasonably expected that there

would have been some written communication from Li’s parents who, after all, could

presumably have corroborated her testimony in critical respects.3 There was nothing.

                                             IV.

       Because substantial evidence supports the BIA’s conclusion adopting and

affirming the IJ’s determination that Li did not present a credible claim for asylum,

withholding of removal, or relief under the CAT, the petition for review will be denied.




3
  We reject Li’s argument that the IJ did not identify the facts for which it would have
been reasonable to require corroboration or discuss whether Li had adequately explained
her failure to do so. See Abdulai, 239 F.3d at 551-54 (citing In re S-M-J-(Interim
Decision), 21 I. & N. Dec. 722 (B.I.A. 1997)). And, while we agree with Li that
credibility and sufficiency of the evidence are analyzed differently, the more evidence
corroborating one’s story, the easier the credibility call. That, we believe, is all the IJ
meant to suggest when he said, at A.R. 79, that Li had not produced any corroborating
evidence that would rehabilitate her credibility.
                                              8
