                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-11-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4177




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4177


                                     ZHI FANG OU,

                                                        Petitioner
                                            v.

                           ATTORNEY GENERAL OF THE
                                UNITED STATES,

                                                        Respondent
                                      __________

                          Petition for Review of an Order of the
                           United States Department of Justice
                              Board of Immigration Appeals
                                  BIA No. A96 395 375
                           Immigration Judge: Miriam K. Mills
                                        __________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 11, 2007

                   Before: RENDELL, STAPLETON, Circuit Judges,
                          and IRENAS,* Senior District Judge.

                                (Filed: January 11, 2008)




  *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
                                       __________

                               OPINION OF THE COURT
                                     __________


IRENAS, Senior United States District Judge.

       Petitioner, Zhi Fang Ou, seeks review of the decision of the Board of Immigration

Appeals (“BIA”) affirming, without opinion, the Immigration Judge’s (“IJ”) decision that

Petitioner was ineligible for asylum, withholding of removal, and relief under the

Convention Against Torture.1 For the following reasons, the Petition will be denied.

                                             I.

       Petitioner is a 20-year-old female citizen of the People’s Republic of China. She

asserts that she left China on or about April 2, 2004, because she was detained for two

weeks due to her parents’ violation of China’s family planning policy. Petitioner also

asserts a fear of returning to China because she will not be free to have her own children

under the policy. Petitioner is not currently married and does not have any children. She

applied for political asylum and for withholding of removal in September of 2004.

       At the removal proceedings before the IJ, Petitioner testified that family planning

officials came to her family’s home in December of 2003, and ordered her parents to pay




  1
     Petitioner did not challenge the denial of her application for relief under the
Convention Against Torture before this Court. Accordingly, we deem the issue waived.
Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).

                                             2
a fine for violating China’s birth control policy.2 Petitioner stated that when her mother

told officials that the family could not afford to pay the fine, the officials took Petitioner

and her two younger siblings to a labor camp. She claimed that they were forced to work

in a garden and that they remained in the labor camp for two weeks. 3 According to

Petitioner, she and her siblings were released after her father borrowed money to bail

them out.

       Petitioner testified that her parents never paid the original fine and that, as a result,

officials bothered her family periodically. She claimed that officials sometimes damaged

the family’s furniture and that occasionally her parents paid the officials a limited amount

of money. Petitioner stated that her family had no further contact with family planning

officials beyond December 2003. Nonetheless, Petitioner stated that her parents, fearing

that their children would be detained again, sent her two younger siblings to live with

their aunt. She testified that her parents moved to another location as well. When asked

on cross-examination what fears Petitioner would have if she returned to China, she

testified that in the future she would get married and China’s birth control policy would

not provide her with the freedom to have children.



  2
     At the time that the officials sought to enforce the violation, Petitioner was 16-years-
old, her sister was 15-years-old, and her brother was 14-years-old.
  3
     At the conclusion of Petitioner’s removal proceedings, counsel for both sides
stipulated to the IJ taking administrative notice that there was no mention in the State
Department’s 2004 Asylum Profile and Country Condition Reports that China enforced
its population control laws by detaining the children of alleged violators.

                                               3
       When Petitioner arrived in the United States on or about April 2, 2004, she was

interviewed by immigration officials.4 During the interview Petitioner was asked about

the purpose of her trip to the U.S. She responded that she came to make money for her

parents. Immigration officials also asked her about any fears she had about returning to

China. She stated that she did not want to return to China and that her mother told her to

travel to the U.S. At the removal proceedings one year later, Petitioner testified that she

did not mention any of her family’s problems with Chinese officials or her detention in a

labor camp during the interview because “the snakehead” 5 told her not to discuss family

planning issues once she arrived in the U.S.

       Petitioner also testified that while she was awaiting her hearing before the IJ she

worked for her uncle at his restaurant. She stated that her uncle was a U.S. citizen. At

the removal proceedings, Petitioner did not provide any corroborating evidence, in the

form of an affidavit, direct testimony or otherwise, from her uncle about his knowledge of

her family’s circumstances. In addition, Petitioner did not provide corroborating evidence

from her mother regarding their family’s problems with Chinese family planning officials.




  4
    Petitioner testified that she previously attempted to come to the U.S. in February
2004, but was stopped in an unspecified part of Korea before being returned to China.
Upon her return to China, Petitioner’s relatives allegedly picked her up at the airport
without interference by Chinese government officials.
  5
   In immigration law jargon, a “snakehead” is a human smuggler who assists illegal
immigrants across the U.S. border.

                                               4
       The IJ issued an oral decision and order on April 19, 2005, denying Petitioner’s

request for asylum, withholding of removal, and relief under the Convention Against

Torture, and ordering Petitioner’s removal to China. The BIA affirmed the IJ’s decision,

without opinion, on August 23, 2006. This Petition followed.

                                             II.

       This Court has jurisdiction to review the BIA’s final removal order pursuant to 8

U.S.C. § 1252(a). Where the BIA affirms the IJ’s decision without opinion as the final

agency determination, “we review the IJ’s opinion and scrutinize its reasoning.” Dia v.

Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). Factual determinations about past

persecution or fear of future persecution, as well as credibility determinations, are

reviewed under the substantial evidence standard. Chen v. Gonzales, 434 F.3d 212, 216

(3d Cir. 2005). Thus, factual findings must be upheld “‘unless any reasonable adjudicator

would be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C.

§ 1252(b)(4)(B)). Adverse credibility determinations must be based on “inconsistencies

and improbabilities that go to the heart of the asylum claim.” Id. (internal quotation marks

omitted).6




  6
     The REAL ID Act of 2005 changed the standard for credibility determinations. See 8
U.S.C. § 1158(b)(1)(B)(iii). However, the change was prospective, taking effect on May
11, 2005. See 8 U.S.C.A. § 1158 note (West 2005) (Effective and Applicability
Provisions, 2005 Acts). Therefore, the change does not apply to Petitioner’s case because
her asylum application was initially filed on September 13, 2004, and amended on March
7, 2005.

                                              5
                                            III.

       In denying Petitioner’s requests for asylum 7 and withholding of removal,8 the IJ

found her testimony incredible. Specifically, the IJ noted the lack of consistency between

Petitioner’s statements to immigration officials when she arrived in the U.S. and the

statements provided in her applications for asylum and withholding of removal. The IJ

found that Petitioner’s explanation for the inconsistencies did not make sense because her

statement to immigration officials that she came to the U.S. to make money for her

parents was more likely to lead to her removal than if she had said she feared persecution

because of China’s family planning policy. The IJ went on to state that because of these

“significant inconsistencies,” the court would “necessarily require corroboration” of

Petitioner’s testimony.

       However, the IJ found that no corroboration was provided. First, the IJ noted the

lack of affidavits or testimony from Petitioner’s uncle and mother in support of her

  7
     To qualify for asylum, an applicant must demonstrate that she meets the statutory
definition of “refugee” under the Immigration and Nationality Act (“INA”). See 8 U.S.C.
§ 1158(b)(1)(A). The INA states generally that a refugee is “any person who is outside
any country of such person’s nationality . . . and who is unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of the protection of, that country
because of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion . . . .” 8 U.S.C.
§ 1101(a)(42).
  8
    Withholding of removal does not rely on the perspective of the applicant’s well-
founded fear, but is instead appropriate only if the applicant demonstrates that there is a
“clear probability” that the applicant’s life or freedom would be threatened upon her
removal to a particular country. See INS v. Stevic, 467 U.S. 407 (1984); see also 8 U.S.C.
§ 1231(b)(3)(A).

                                             6
claims. The IJ held that Petitioner provided no reasonable explanation for such

omissions. Second, the IJ found that there was no objective corroboration that China

enforced its population control policy by detaining the children of violators in labor

camps. Again, the IJ held that there was no reasonable explanation provided for why

objective evidence could not be found in articles or reports discussing the enforcement of

China’s population control policy.

       This case presents familiar issues of credibility and corroboration. As this Court

has observed before, “corroboration and credibility, although intuitively related, are

distinct concepts that should be analyzed independently.” Obale v. Attorney General, 453

F.3d 151, 163 (3d Cir. 2006) (internal quotation marks omitted). A separate analysis is

necessary because “even a credible asylum applicant may be required to supply

corroborating evidence in order to meet [her] burden of proof.” Chen, 434 F.3d at 221

(alteration in original) (internal quotation marks omitted); cf. id. at 221-22 (“If we assume

that the IJ did not make a valid [adverse] credibility determination, it does not affect the

result in this case. . . . [B]oth the Country Report’s conclusion that forced abortion is not

governmental policy in China, coupled with the almost total lack of corroboration of

[Petitioner’s] story, constitutes substantial evidence sufficient to deny the petition for

review.” (footnote omitted)).9


  9
    Although not applicable to this case, relatively recent changes to the immigration
laws emphasize the importance of corroboration. With respect to sustaining an
applicant’s burden of proof in asylum cases, the INA instructs that “[t]he testimony of the

                                               7
       Bearing in mind this need for separate analyses, we turn to the present Petition.

We find that the IJ’s determinations with respect to both corroboration and credibility are

supported by substantial evidence, and this Court is not compelled to conclude to the

contrary. Focusing first on corroboration, a three step analysis is required: (1) an

identification of facts for which it is reasonable to expect corroboration; (2) the presence

or absence of such corroboration in the record; and (3) the adequacy of applicant’s

explanation for its absence. Obale, 453 F.3d at 163; Chen, 434 F.3d at 220 (citing

Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)).

       As to the first step of the analysis, the IJ’s opinion explained the need for

corroboration of Petitioner’s testimony regarding her detention in a labor camp for two

weeks as a result of her parents’ violation of China’s population control policy. From the

record it appears clear that Petitioner could have readily obtained corroboration from her

mother, who had firsthand knowledge of Petitioner’s alleged detention. We also note that

Petitioner did not mention her detainment in statements to immigration officials when she

first arrived in the U.S., and the State Department’s Country Condition Reports did not



applicant may be sufficient . . . without corroboration, but only if the applicant satisfies
the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to
specific facts . . . .” 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added). Thus, pursuant to the
statute, corroboration will normally be required, and its absence can only be remedied by
specific credible testimony. Further, the judicial review provisions of the INA provide
that “[n]o court shall reverse a determination made by a trier of fact with respect to the
availability of corroborating evidence, as described in section 1158(b)(1)(B) . . . unless
the court finds . . . that a reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).

                                              8
indicate that such an action was ordinarily taken to enforce the policy. Cf. Zubeda v.

Ashcroft, 333 F.3d 463, 477-78 (3d Cir. 2003) (citation omitted). Therefore, we find that

it was reasonable for the IJ to expect corroboration of Petitioner’s claim.

       Moving to the second step of the analysis, we agree with the IJ’s conclusion that

the record demonstrates an almost complete lack of such corroboration. Petitioner

testified that her uncle was a U.S. citizen and that she was working at his restaurant in

New York. She also stated that her uncle had personal knowledge of her family’s

violations of China’s population control policy. Yet Petitioner’s uncle did not testify on

her behalf during the removal proceedings, and Petitioner did not provide an affidavit

from her uncle in support of her claim. Furthermore, Petitioner failed to provide any

corroboration from her mother, the one individual who certainly had firsthand knowledge

of Petitioner’s claim, in the form of an affidavit or other supporting documentation.

Finally, no articles or reports were provided in the record to indicate that China enforced

its family planning policy by detaining the children of violators.

       This brings us to the final step of the analysis–the adequacy of Petitioner’s

explanation for the absence of corroboration. When the IJ asked Petitioner why she did

not provide an affidavit or direct testimony from her uncle, she responded simply, “Don’t

know.” No further explanation was provided. With regard to corroboration from her

mother, Petitioner claimed that she received a letter from her mother detailing the

family’s experience in December 2003. However, both Petitioner’s counsel and the



                                              9
Government’s counsel indicated that there was no letter in the record. Petitioner was

unable to produce the letter herself at the removal proceedings. Lastly, on the issue of

articles or reports detailing China’s enforcement of its population control policy,

Petitioner’s counsel implicitly conceded that none existed when she stated that she “had

not seen that [type of enforcement] before.” Petitioner’s counsel also stipulated to the IJ

taking administrative notice that the State Department’s reports did not mention children

being detained for their parents’ violations of the policy. Accordingly, because

Petitioner’s explanations for the absence of corroborative evidence were clearly

inadequate, we conclude that substantial evidence supports the IJ’s decision that

Petitioner’s testimony was not sufficiently corroborated.

       Likewise, substantial evidence supports the IJ’s adverse credibility finding. As

stated previously, adverse credibility determinations must be based on “inconsistencies

and improbabilities that go to the heart of the asylum claim.” Chen, 434 F.3d at 216

(citations omitted). The two primary inconsistencies found by the IJ certainly go to the

heart of Petitioner’s request for asylum, i.e., her claims of past persecution and a fear of

future persecution. See 8 U.S.C. § 1101(a)(42) (defining a “refugee” entitled to asylum as

“any person who is outside [their native country] . . . and who is unable or unwilling to

return to . . . that country because of persecution or a well-founded fear of persecution”).

       First, Petitioner’s statements about her reasons for leaving China to come to the

U.S. were inconsistent. When immigration officials first interviewed her in April 2004,



                                              10
she stated that she came to the U.S. to make money for her parents. She did not mention

anything about her family’s problems with Chinese family planning officials just four

months earlier, in December 2003. Yet five months later, in her application for asylum,

Petitioner claimed that she was persecuted because of her parents’ violation of China’s

population control policy. Petitioner also made inconsistent statements when she was

asked about any fears she had about returning to China. At the initial interview,

Petitioner stated that she did not want to return to China and that her mother told her she

had to come to the U.S. Again however, just five months later, Petitioner claimed that

she feared future persecution under China’s population control policy if she chose to have

children of her own. Petitioner made this claim despite the fact that she is not married

and does not have any children. We conclude that such inconsistencies going to the very

core of Petitioner’s asylum application constitute substantial evidence supporting the IJ’s

conclusions that her testimony was not credible.

       Because substantial evidence supports both the corroboration and credibility

findings, the Petition for Review with respect to asylum will be DENIED. Accordingly,

the Petition will also be DENIED with respect to withholding of removal. See Obale, 453

F.3d at 161 (“An applicant who does not qualify for asylum necessarily does not qualify

for withholding of removal.”).

_______________




                                             11
