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


7-16-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3931




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                                                   NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                  NO. 02-3931




                              XING CHAN YANG,
                                            Petitioner

                                        v.

                  JOHN ASHCROFT, ATTORNEY GENERAL
                        OF THE UNITED STATES




                          Petition for Review of an Order
                       of the Board of Immigration Appeals
                                   (A70-899-611)


                   Submitted Under Third Circuit LAR 34.1(a)
                              December 1, 2003

          Before: SLOVITER, ALITO and FRIEDMAN *, Circuit Judges

                              (Filed July 16, 2004)




                           OPINION OF THE COURT




*
    Hon. Daniel M. Friedman, United States Senior Circuit Judge for the
    Federal Circuit, sitting by designation.
SLOVITER, Circuit Judge.

       Petitioner Xing Chan Yang has filed a Petition for Review of the decision of the

Board of Immigration Appeals (“BIA”) summarily affirming the decision of the

Immigration Judge (“IJ”) denying his request for asylum and withholding of removal.

Specifically, Yang challenges the IJ’s conclusion that it could not rely on documents

presented by Yang showing that he had entered into an uxorilocal marriage with his wife,

Xiu Lan Wang, resulting in their children bearing the last name of his father-in-law and

wife. Yang also challenges the IJ’s refusal to hold a subsequent hearing to allow Yang to

introduce expert witnesses that would testify to the practice of uxorilocal marriages in

China, the IJ’s rejection of Yang and Wang’s oral testimony regarding their uxorilocal

marriage, the IJ’s finding of Yang as an incredible witness, and the BIA’s decision to

summarily affirm the IJ’s decision in his case. For the following reasons, we will grant

Yang’s petition for review, vacate the BIA’s order, and remand.

                                    BACKGROUND

       Because we write solely for the parties before us, we will limit our discussion of

the background facts. According to Yang and Wang, they married in the People’s

Republic of China on November 15, 1980, but did not register their marriage with the

local authorities until April 26, 1990. The couple has two children: a son named Ci Feng

Wang, born April 9, 1983, and a daughter named Xiu Fang Wang, born February 24,

1986. Yang entered the United States without proper documentation on or about January



                                             2
2, 1990, and was subsequently placed in removal proceedings by the then-named

Immigration and Naturalization Service (“INS”). Yang then applied for asylum,

restriction of removal, withholding of removal, and voluntary departure.

       Yang states in his asylum application that less than a month after the birth of his

second child, his wife was taken by ten local government cadres to a hospital in Guantou

and forcibly sterilized. Yang then paid a fine of RMB 50 yuan “due to over birth” in

1987. A.R. at 612. Yang stated that in 1991 his family was further assessed a fine of

RMB15,000 yuan for violating China’s family planning policy, which his wife could not

afford to pay. A.R. at 612. He then “took an opportunity and left China in 1991,” and

was followed by Wang in 1994. A.R. at 612.

       During a hearing in the Immigration Court, the IJ questioned why Yang’s children

had his wife’s last name, Wang, rather than his own. Yang explained that in rural areas of

China, when a wife’s father has no male children as heir, it is customary for the son-in-

law to be adopted into his household so as to perpetuate the father-in-law’s family name.

Because he was adopted by his father-in-law in accordance with this tradition, his

children have taken Yang’s father-in-law’s surname.

       Yang also furnished certain documentary evidence to the IJ that purported to

establish that: (1) Yang and Wang were lawfully married, (2) they had two natural

children, (3) Yang’s wife was sterilized against her will for violating the family planning

policy, (4) they were fined for excess child birth, and (5) they fled to the United States to



                                              3
avoid further persecution. The documents included a marriage certificate, two birth

certificates, a family register, and a notice of a fine due to violation of the family planning

policy in the amount of RMB 15,000 yuan.

       The IJ, however, found the documents submitted by Yang to be incredible because

Yang “has not had the documentation certified by the American consulate pursuant to [8

C.F.R. §] 287.6.” A.R. at 150. The IJ stated:

       The State Department report advises the Court that I cannot rely on any
       documentation with regard to family registers or birth certificates coming
       out of Fujian unless they have been properly certified. . . . Therefore
       notwithstanding [Yang’s] explanation and the explanation of his wife, the
       Court still does not know why the last names of the children are different
       than the last name of [Yang]. Naturally if these were not his children,
       [Yang] would not have a bonafided [sic] claim to political asylum in so far
       as the basis of that claim, having had two children in China and being
       subject to the birth control policy, would no longer exist.

A.R. at 150. The IJ further ruled that because Yang was not a credible witness “based on

the discrepancies in his testimony, [and] based on the discrepancies in the application for

asylum,” he

       would thus require that the documentation that has been submitted to the
       Court be certified, which is has not [sic]. The Court cannot find that I have
       [sic] any evidence at all which is reliable in the form of documentary
       evidence, which would reflect that [Yang] is married nor that he has two
       children who have a different surname than [his] and that this is due to the
       fact that he was adopted into the household of his wife.

A.R. at 155-56. The IJ therefore rejected Yang’s application for asylum because Yang

had “not established a well-founded fear of persecution as defined if he were returned to

the People’s Republic of China.” A.R. at 156. The IJ also denied Yang’s application for

                                              4
restriction of removal, withholding of removal, and voluntary departure. The BIA then

summarily affirmed the IJ’s decision under 8 C.F.R. § 3.1(a)(7) (2002).

                                      DISCUSSION

       We have jurisdiction to review decisions of the BIA under 8 U.S.C. § 1252. When

the BIA summarily affirms the IJ’s decision without opinion, we review the IJ’s decision.

See Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003).

       A well-founded fear of persecution is a factual determination reviewed under the

deferential substantial evidence standard. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.

2001) (citing INS v. Elias-Zacarias, 502 U.S. 478 (1992)). “Substantial evidence is more

than a mere scintilla and is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (quoting Senathirajah v. INS, 157 F.3d 210, 216

(3d Cir. 1998)).

       Yang, as an initial matter, challenges the BIA’s decision to apply the streamlining

regulations, 8 C.F.R. § 1003.1(a)(7) (formerly 8 C.F.R. § 3.1(a)(7)), and summarily affirm

the IJ’s decision in this case. Yang contends that his case is not an appropriate one for

summary affirmance because existing BIA precedents favor Yang’s arguments in his

appeal to the BIA, and because the IJ’s adverse credibility determination is not supported

by substantial evidence. The Government argues that we lack jurisdiction to review the

BIA’s decision to apply the streamlining regulations in a particular case.

       The BIA's decision to apply the streamlining regulations to a particular case is a



                                             5
matter committed to its discretion and is unreviewable. But as we explained above, we

have jurisdiction to review the IJ’s decision as the final agency determination.

Abdulrahman v. Ashcroft, 330 F.3d 587, 591 (3d Cir. 2003).

       The IJ denied Yang’s application for asylum on the ground that he “cannot find

that [Yang] has been a credible witness nor that he has presented a credible case for

asylum,” and that Yang “has not established a well-founded fear of persecution.” A.R. at

156. He based this finding of adverse credibility largely on the facts that the documentary

evidence that Yang presented to establish his uxorilocal marriage and his paternal

relationship with his children were not properly certified by the local United States

Consulate in China pursuant to 8 C.F.R. § 287.6, that various differences exist between

Yang’s oral testimony in court and the information presented in his asylum application,

and internal inconsistencies within his oral testimony itself.

       In Liu v. Ashcroft, No. 02-4334, slip. op. (3d Cir. June 24, 2004), we dealt with

the issue of whether an IJ may exclude documentary evidence from review solely because

the evidence was not certified pursuant to 8 C.F.R. § 287.6. Responding to our request

for further agency guidance on the scope of section 287.6, the Government, citing with

approval Khan v. INS, 237 F.3d 1143 (9th Cir. 2001), and Georgis v. Ashcroft, 328 F.3d

962 (7th Cir. 2003), explained in Liu that “8 C.F.R. § 287.6 is not an absolute rule of

exclusion, and is not the exclusive means of authenticating records before an immigration

judge.” Id. at 5 (internal quotation marks and citation omitted). We then accepted the



                                              6
Government’s interpretation of section 287.6 and ruled that the Lius should have been

allowed the opportunity to prove the authenticity of the documentary evidence they

presented through other means. Id. We also ruled that because the documentary

evidence, if found genuine, would corroborate the Lius’ oral testimony, the exclusion of

the documentary evidence affected the IJ’s adverse credibility determination in that case.

Id. at 6. We therefore remanded the case so that the BIA could reconsider and reweigh

the facts and evidence in light of our opinion. Id. at 8.

       Here, although the IJ cited the State Department’s Country Report of China in

stating that “the Court must be on guard . . . with regard to any and all documentation

coming from China, especially Fujian province which apparently is replete with fraud”

and that “I cannot rely any documentation with regard to family registers or birth

certificates coming out of Fujian unless they have been properly certified,” A.R. at 150, it

is clear that the IJ excluded documents offered by Yang to establish his uxorilocal

marriage on the ground that the documents were not certified pursuant to 8 C.F.R. §

287.6. A.R. at 155 (“I would thus require that the documentation that has been submitted

to the Court be certified, which is [sic] has not.”(emphasis added)). The State

Department report, in fact, did not state that the only method for establishing that a

document from Fujian is bona fide is through certification by the local American

consulate, only that fabrication and fraud is prevalent throughout the region. See A.R. at

374-75. In light of our decision in Liu, where we accepted the Government’s



                                              7
interpretation of section 287.6 as a nonexclusive method for authenticating documentary

evidence, the IJ’s rejection of the documentary evidence on only section 287.6 grounds

constitutes legal error. See Liu, slip op. at 6.

       We also conclude that the IJ’s erroneous evidentiary ruling was not harmless. As

the Government itself noted, “This case . . . turns on the immigration judge’s finding that

Yang’s testimony was uncorroborated.” Respondent’s Br. at 36. The Government also

conceded that “the record appears to show that Wang’s testimony tracks with Yang’s

concerning their marriage and children, Yang’s adoption into Wang’s family, and the

alleged incidents that led to Yang seeking asylum in the United States.” Respondent’s

Br. at 35. In other words, had the IJ not summarily rejected the documentary evidence

offered by Yang and considered alternative methods for authentication, the documentary

evidence could have served to corroborate the largely consistent oral testimony offered

by Yang and his wife. The IJ, in fact, stated that Yang “has in the considered opinion of

the Court engaged in fraudulent testimony and the submission of fraudulent

documentation in order to support his case,” A.R. at 157, which the Government believes

was “premised, in part, on his determination that the documents Yang submitted from

China to support his asylum claim were not properly authenticated pursuant to 8 C.F.R. §

287.6.” Respondent’s Br. at 36. The IJ’s misapplication of section 287.6, therefore,

clearly affected his adverse credibility finding against Yang.

       We reject the Government’s argument that the authentication issue is not before us



                                               8
because Yang allegedly did not raise it before the BIA. Yang’s Notice of Appeal to the

BIA did state that he and his wife “ha[d] established by testimony and documentary

evidence that [Yang’s] wife was forcibly sterilized under the coercive family planning

policy of China,” and that “[t]he IJ’s credibility finding is not supported by substantial

evidence.” A.R. at 136. It is also clear from his appellate brief to the BIA that Yang had

subsumed the section 287.6 issue into his broader argument that the IJ’s adverse

credibility finding was not based on substantial evidence; the brief, for example,

challenges the IJ’s finding on the uxorilocal marriage issue, which is precisely the issue

for which Yang offered documentary evidence. A.R. at 12. As we stated in Bhiski v.

Ashcroft, No. 03-3291, slip. op. at 4-6 (3d Cir. July 2, 2004), so long as Yang made some

effort, however insufficient, to place the BIA on notice of the issue being raised before it,

Yang is deemed to have exhausted his administrative remedies. Because Yang’s Notice

of Appeal to the BIA sufficiently placed the BIA on notice that Yang is challenging the

IJ’s adverse credibility finding, including his rejection of documentary evidence under

section 287.6, Yang adequately exhausted his administrative remedies.

       Finally, we note that the IJ had also pointed out several inconsistencies within the

testimonies from Yang and his wife, as well as contradictions between the oral

testimonies and Yang’s asylum application, to support his overall adverse credibility

finding. Some of the inconsistencies, such as dates for the overbirth fines and Yang’s

entry into the United States, are not sufficiently consequential to amount to substantial



                                              9
evidence to support an adverse credibility finding. Other questions raised by the IJ in his

oral opinion, such as the existence of the uxorilocal marriage and the use of the maternal

family name for Yang’s two children, would have been corroborated by documentary

evidence presented by Yang if such evidence were found to be genuine through other

means of authentication.

       Because we find that the IJ’s refusal to accept the proffered documentary evidence

solely for the lack of authentication under 8 C.F.R. § 287.6 significantly contributed to his

adverse credibility finding against Yang, we will grant Yang’s petition for review, vacate

the BIA’s order, and remand to the BIA for further proceedings consistent with this

opinion.
