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


6-24-2004

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Precedential or Non-Precedential: Precedential

Docket No. 02-4334




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Liu v. Atty Gen USA" (2004). 2004 Decisions. Paper 539.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/539


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 Benjamin.Carlson@law.villanova.edu.
                         PRECEDENTIAL            (Opinion Filed: June 24, 2004)

       UNITED STATES COURT OF               JOSEPH C. HOHENSTEIN (Argued)
              APPEALS                       Nationalities Service Center
        FOR THE THIRD CIRCUIT               1300 Spruce St.
                                            Philadelphia, PA 19107
              ____________
                                            Counsel for Petitioner
               No. 02-4334
              ____________                  ROBERT D. McCALLUM, JR.
                                            TERRI J. SCADRON
       GUI CUN LIU; XIU DING LIU,           ANTHONY W. NORWOOD (Argued)
                                            Office of Immigration Litigation
                Petitioners                 Civil Division
                                            U.S. Department of Justice
                    v.                      P.O. Box 878, Ben Franklin Station
                                            Washington, DC 20044
John Ashcroft, ATTORNEY GENERAL
OF UNITED STATES OF AMERICA,
                                            Counsel for Respondent
                 Respondent
                                                    ____________________
          ____________________
                                                  OPINION OF THE COURT
 ON PETITION FOR REVIEW OF AN                      ____________________
    ORDER OF THE BOARD OF
     IMMIGRATION APPEALS
                                            ALITO, Circuit Judge:
            (No. A73 168 631)                      Mr. Gui Cun Liu and M rs. Xiu
          ____________________              Ding Liu (“the Lius”) petition for review
                                            of an order of the Board of Immigration
         Argued: December 4, 2003           Appeals (BIA) affirming the denial of their
                                            application for asylum and withholding of
Before: SLOVITER and ALITO, Circuit         deportation. Specifically, the Lius allege
Judges, and OBERDORFER, District            that the BIA erred in (1) affirming the
Judge*                                      opinion of the Immigration Judge (IJ)
                                            without opinion, in violation of their Due
                                            Process rights, (2) improperly finding that
                                            the Lius’ testimony was not credible, (3)
   *
    The Honorable Louis F. Oberdorfer,      rejecting documentary evidence for failure
Senior District Judge for the District of   to comply with the authentication
Columbia, sitting by designation.           procedures detailed in 8 C.F.R. § 287.6,
and (4) ignoring favorable new evidence             faith.
suggesting increased likelihood of
                                                           The Lius presented to the IJ
persecution in their home country.
                                                    documentary evidence supporting their
        We agree that the IJ’s improper             claims, including a pair of certificates
application of § 287.6 caused him to                purportedly confirming that the two
disregard evidence that, if duly considered         abortions had in fact been performed in
in the first instance, might have resulted in       China on the dates specified. See A.R.
a favorable determination regarding                 272-73, 445-46.       The Lius’ counsel
credibility for the Lius. Because the               explained, upon submission of this
adverse credibility finding was the crux of         evidence, that it had proved impossible to
the order denying relief, we will grant the         comply with the regulatory authentication
petition for review, vacate the order of the        procedure set forth in § 287.6; he had
BIA, and remand.                                    “attempted to comply with this procedure,
                                                    but [was] told by the Chinese officials at
                     I.
                                                    the provincial level that no such
       The Lius, both citizens of the               authentication was performed at that
People’s Republic of China, seek asylum             level.” A.R. 268; see also A.R. 289 (letter
on the ground that they are unable to return        from U.S. Consulate in China to Lius’
to their native country “because of                 counsel, explaining that no authentication
persecution or a well-founded fear of               can be performed until documents have
persecution on account of race, religion,           been signed and notarized by a local
nationality, membership in a particular             Chinese foreign affairs official). The IJ
social group, or political opinion.” 8              nevertheless refused to accept this
U.S.C. § 1101(a)(42). In particular, the            explanation:
Lius claim that Mrs. Liu was twice forced
                                                             The regulations are specific,
by the Chinese government to undergo an
                                                             Mr. Hohenstein. It says they
abortion,1 and that both face government
                                                             shall be certified. There’s
persecution on account of their Christian
                                                             little or no weight that I can
                                                             give a document that’s in
    1                                                        violation of the regulations,
    8 U.S.C. 1101(a)(42) provides: “[A]
                                                             whether it be your client’s
person who has been forced to abort a
                                                             inability to obtain proper
pregnancy . . . shall be deemed to have
                                                             certification of a document
been persecuted on account of political
                                                             or wh atev er.            The
opinion . . . .” See also In Re Matter of
                                                             regulations say the
C-Y-Z, 21 I. & N. Dec. 915, 918 (BIA
                                                             documents shall be. There
1997) (holding that past persecution of one
                                                             is no wiggle room there.
spouse can be established by coerced
                                                             So, what you’ll have to do
abortion or sterilization of the other
                                                             is, I’ll allow it to remain in
spouse).

                                                2
      evidence but there’s not                          changing your testimony.
      much weight or any weight                         You just told me the nurse
      that I can give a noncertified                    told you it was a baby girl
      document.                                         and it was dead, then you
                                                        say it was a baby boy and it
A.R. 184-85.
                                                        was dead.
           After hearing and considering
                                                        A. No, I meant that the
testimony from both Mr. and Mrs. Liu, the
                                                        nurse was a girl.
IJ rejected their claims for asylum and
withholding of deportation.          In so              Q. Ma’am, just look this
deciding, the IJ relied on findings of                  way. You see the word
several internal inconsistencies in the                 stupid written across my
testimonies which rendere d them                        forehead?
“incredible.”      See A.R. 79 (noting
                                                        A. No.
“contradictions between the respondents’
written applications and their testimony                Q. You think I’m going to
b e f o r e t h e C o u r t ” a s we ll as              believe you when you
“contradictions in the testimony given by               change your testimony like
the respondents themselves”).           In              that and give me such a half
particular, the IJ noted one “dramatic”                 baked reason for changing
inconsistency (see A.R. 76) in Mrs. Liu’s               the testimony?
testimony regarding her second abortion,
                                                        A. No, I did not change.
as reproduced in part here:
                                                 A.R. 214-15; cf. A.R. 306 (affidavit of
      Q. Do you know if the baby
                                                 Mrs. Liu, stating that second aborted fetus
      was born alive or if it was
                                                 was male). The IJ did not make reference
      born dead?
                                                 to the abortion certificates in analyzing this
      A. They, the nurse told me                 or any other perceived inconsistency cited
      that it was a baby girl but                in the final decision, although he did state
      dead.                                      at the opening of his opinion that he had
                                                 considered “all of the documentation that
      Q. What did the nurse tell
                                                 has been submitted thus far by both sides
      you again?
                                                 in this matter.” A.R. 66.
      A. No, she told me it was a
                                                        On appeal to the BIA, a single
      boy and it’s, it’s dead.
                                                 member of the BIA elected to affirm the
                                                 IJ’s decision without opinion, pursuant to
                                                 8 C.F.R. § 3.1(e)(4).        This appeal
      JUDGE TO MRS. LIU
      Q. Wait, why do you keep


                                             3
followed.2                                           must be because the IJ took her confusion
                                                     as evidence that the inconsistently-
                     II.
                                                     described fetus never actually existed.4 To
        We begin our analysis by evaluating          the extent that there exists competent
the IJ’s interpretation and application of           documentary evidence to the contrary (that
§ 287.6 in effectively excluding the                 is, that the abortion was performed as
abortion certificates.3 We focus first on            described by Mrs. Liu), the credibility
this evidentiary issue because we believe it         determination of the IJ must accordingly
follows from the IJ’s reliance on Mrs.               be called into question.
Liu’s testimony regarding the gender of
                                                            The authentication regulation of 8
the fetus that the IJ was under the
                                                     C.F.R. § 287.6 provides, in pertinent part:
impression that the second abortion had, in
fact, never occurred. In other words, if                     In any proceeding under this
Mrs. Liu’s confusion on this point is to be                  chapter, an official record or
understood as impugning her credibility, it                  entry therein, when
                                                             admissible for any purpose,
       2
                                                             shall be evidenced by an
      Because the BIA affirmed without                       official publication thereof,
opinion, it is the reasoning and decision of                 or by a copy attested by an
the IJ that we review on appeal. See Dia                     officer so authorized. . . .
v. Ashcroft, 353 F.3d 228, 243 (3d Cir.                      The attested copy, with the
2003) (en banc).                                             additional foreign
   3                                                         certificates if any, must be
    We speak of “exclusion” even though
                                                             certified by an officer in the
we recognize that the IJ technically
                                                             Foreign Service of the
admitted the certificates into evidence.
                                                             United States, stationed in
See A.R. 185. While the IJ’s evidentiary
                                                             the foreign country where
rulings are ambiguous as to whether he
                                                             the record is kept.
intended to give the certificates “little
weight” or “no weight,” see id., the fact            Id. (emphasis added). As noted earlier, the
that the IJ never referred to the certificates       IJ focused on the word “shall” in applying
in his final decision suggests that they             the regulation, emphasizing that it left him
were not given any weight in making the              with “no wiggle room,” and that the
ultimate decision.       That the opinion            abortion certificates could hence be
contained boilerplate to the effect that “all
of the documentation” had been
                                                         4
considered seems to us irrelevant. See                    For example, it makes little sense to
A.R. 66. Of course, if a document is                 think that the IJ could have taken the
admitted into evidence with the caveat that          inconsistency regarding g ender as
it will be given “no weight,” that is                evidence that Mrs. Liu did indeed have the
tantamount to an exclusion from evidence.            abortion, but did so voluntarily.

                                                 4
accorded only little or no evidentiary              Moreover, we fully agree, as the
weight. A.R. 185.                                   government states in its supplemental
                                                    brief, that “asylum applicants can not
        Our precedent states that “[a]n
                                                    always reasonably be expected to have an
agency’s interpretation of its own
                                                    authenticated document from an alleged
regulation is ‘controlling . . . unless it is
                                                    persecutor.”      Letter Brief at 3; cf.
plainly erroneous or inconsistent with the
                                                    Senathirajah v. INS, 157 F.3d 210, 215-16
regulation.’” Abdulai v. Ashcroft, 239
                                                    (3d Cir. 1998) (“It is obvious that one who
F.3d 542, 552 (3d Cir 2001), quoting
                                                    escapes persecution in his or her own land
Bowles v. Seminole Rock & Sand Co.,
                                                    will rarely be in a position to bring
325 U.S. 410, 414 (1945). At oral
                                                    documentary evidence or other kinds of
argument, we specifically requested
                                                    corroboration to support a subsequent
further guidance from the government as
                                                    claim for asylum. . . . Common sense
to its official interpretation of the
                                                    establishes that it is escape and flight, not
regulation. In its supplemental brief
                                                    litigation and corroboration, that is
submitted in response, the government
                                                    foremost in the mind of an alien who
contended that “8 C.F.R. § 287.6 is not an
                                                    comes to these shores fleeing detention,
absolute rule of exclusion, and is not the
                                                    torture and persecution.”). We believe that
exclusive means of authenticating records
                                                    the Lius should have been allowed to
before an immigration judge.” Letter Brief
                                                    attempt to prove the authenticity of the
at 4. In so doing, it cited with approval
                                                    abortion certificates through other means,
Khan v. INS, 237 F.3d 1143 (9th Cir.
                                                    especially where (as here) attempts to
2001), and Georgis v. Ashcroft, 328 F.3d
                                                    abide by the requirements of § 287.6 failed
962 (7th Cir. 2003), which held that “[i]t
                                                    due to lack of cooperation from
was error to exclude . . . official records
                                                    government officials in the country of
based solely on the lack of consular
                                                    alleged persecution.
certification.” Khan, 237 F.3d at 1144.5
                                                            The government contends that, in
       While the government’s reading of
                                                    any event, the improper application of
§ 287.6 may not be the most obvious one,
                                                    § 287.6 was not prejudicial here since
we cannot say that it is plainly erroneous
                                                    there was evidence in the record indicating
or inconsistent with the regulation.6
                                                    that official documents from Fujian (such
                                                    as the abortion certificates here) are
  5
   At least one additional court of appeals         commonly forged and thus are “virtually
has recently adopted the holding in Kahn.           useless” as cred ible co rrobo rating
See Yongo v. INS, 355 F.3d 27, 31 (1st              evidence. Letter Brief at 4; see A.R. 379
Cir. 2004).                                         (State Department Country Report for

  6
   Cf. Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 434 (1995) (“Though ‘shall’           sometimes use, or misuse, ‘shall’ to mean
generally means ‘must,’ legal writers               ‘should,’ ‘will,’ or even ‘may.’”).

                                                5
China).      However, the government’s                     Specifically, we do not believe that
suggestion that the IJ relied (at least, in         the other inconsistencies cited by the IJ,
part) on the Country Report in his rejection        even when viewed together as a whole,
of the abortion certificates is simply              amount to substantial evidence that the
inaccurate. It is perfectly clear that the IJ       Lius were not credible. For example:
based his decision on § 287.6 alone. See
                                                           •      The IJ found a “diametrical
A.R. 184-85; cf. A.R. 95-96 (rejecting
                                                                  contradiction” in the fact
other evidence under § 287.6). We may
                                                                  that Mr. Liu had listed only
not affirm the exclusion of evidence on
                                                                  one child in his original I-
grounds entirely different from those relied
                                                                  589 application, but later
upon by the agency. See SEC v. Chenery
                                                                  testified that he had two
Corp., 332 U.S. 194, 196 (1947) (“[A]
                                                                  children.    A.R. 69.      A
reviewing court, in dealing with a
                                                                  cursory examination of the
determination or judgment which an
                                                                  record reveals that, at the
administrative agency alone is authorized
                                                                  time that the original I-589
to make, must judge the propriety of such
                                                                  was filled out (November
action solely by the grounds invoked by
                                                                  21, 1993), his second child
the agency.”).
                                                                  had not even been born yet.7
        We conclude that 8 C.F.R. § 287.6
is not an absolute rule of exclusion, and is
                                                           •      The IJ found a discrepancy
not the exclusive means of authenticating
                                                                  in the fact that Mrs. Liu
records before an immigration judge.
                                                                  testified that she was (1)
Accordingly, it was legal error for the IJ to
                                                                  required to check in with the
reject the abortion certificates on that
                                                                  authorities every three
ground alone.
                                                                  months following her first
                    III.                                          abortion and (2) required to
                                                                  check in with the authorities
        Against the background of this
                                                                  every three m onth s
erroneous evidentiary ruling, we now
                                                                  f o l l o wing her s e c o nd
evaluate the IJ’s finding that the Lius were
                                                                  abortion. A.R. 78-79. Of
not credible.       Because the abortion
                                                                  course, as a logical matter,
certificates, if found to be genuine, would
                                                                  there is simply no conflict or
corroborate Mrs. Liu’s testimony that she
had two abortions performed on
her—whether or not she misspoke or got
                                                       7
confused (or lied) on the point of the                  In fact, the second child was added to
second fetus’s gender—we believe that               the form when it was later corrected by
remand to the BIA to reconsider the                 Mr. Liu. Compare A.R. 398, 402 (original
credibility issue is appropriate.                   I-589) with A.R. 393, 397 (amended I-
                                                    589).

                                                6
               inconsistency between those                accepted Christianity (by
               two statements.                            “kneel[ing] down an d
                                                          accept[ing] [his] sin”),
                                                          which occurred immediately
       •       The IJ found that Mr. Liu                  before leaving China in
               contradicted himself with                  November 1991. A.R. 131,
               respect to the date and                    134; cf. A.R. 396. Mr. Liu
               location of his baptism.                   expressly distinguished this
               A.R. 70. Mr. Liu repeatedly                confession of faith from the
               testified that he had been                 actual baptism which was
               baptized in the United States              performed later. A.R. 131.
               in 1996, see A.R. at 131,                  There is no basis for a
               137, which is consistent                   finding of a discrepancy
               with the documentary                       here.
               evidence presented, see
                                                      •   Likewise, the finding of a
               A.R. at 313. It is true that
                                                          discrepancy where Mrs. Liu
               Mr. Liu once responded
                                                          alternately testified that she
               with the date November 25,
                                                          was (1) four months and (2)
               1991, when asked when he
                                                          five months along with the
               had been baptized. A.R.
                                                          pregnancy at the time of the
               130. This confusion almost
                                                          second abortion is trivial,
               certainly resulted from the
                                                          and does little or nothing to
               apparent difficulty the
                                                          contribute to substantial
               translator had in expressing
                                                          evidence of falsehood on the
               the concept of baptism. See
                                                          part of the Lius. A.R. 78;
               A.R. 131-32.8 Mr. Liu’s
                                                          see Gao v. Ashcroft, 299
               subsequent answers made
                                                          F.3d 266, 272 (3d Cir. 2002)
               clear that what he had been
                                                          (minor inconsistencies not a
               referring to in connection
                                                          proper f oundation for
               with that date was the day
                                                          adverse credib ility
               on which he form ally
                                                          determination).
                                                      •   The IJ relied heavily upon
  8                                                       M r . L i u ’ s s ta t e m e n t
    It is evident that translation difficulties
                                                          originally filed with his
seriously plagued the entire hearing. See,
                                                          signed I-589 form (and later
e.g., A.R. 103-104 (inconsistent testimony
                                                          retracted by him), in which
due to confusion regarding translation of
                                                          it was claimed that he had
“Catholic” and “Baptist”); A.R. 67-69
                                                          been jailed and fined for
(repeated questions yielding absurdly
                                                          failure to comply with the
nonresponsive answers).

                                                  7
                 one-child policy. A.R. 71-                 decision is based. We are obliged to
                 72. The IJ noted that, under               remand to the agency to reconsider and
                 8 C.F.R. § 208.3, Mr. Liu’s                reweigh the facts, rather than attempting to
                 signature on the form gave                 undertake that task ourselves. INS v.
                 rise to a presumption that he              Ventura, 537 U.S. 12 (2002).9
                 was aware of the contents of
                                                                                IV.
                 that application. But the IJ
                 did not explain why this                          We grant the Lius’ petition for
                 presumption had not been                   review, vacate the order of the BIA, and
                 successfully rebutted by                   remand to the BIA for further proceedings
                 o t h e r e v i d e n c e (m o s t         consistent with this opinion.10
                 notably, the fact that the
                 form is filled out in English,               9
                 which Mr. Liu does not                         Specifically, our decision should in no
                 speak, without listing the                 way be read as requiring the BIA to find
                 name of a third-party                      that the abortion certificates are genuine.
                 preparer, as well as M r.                  Rather, the BIA may proceed on remand as
                 Liu’s testimony regarding                  it does with respect to any evidentiary
                 the explanation of the                     question, evaluating issues of materiality,
                 statement before the asylum                relevance, probity, and the general
                 officer: “I said I didn’t                  requirements of due process. See 8 C.F.R.
                 know what it is”). A.R. at                 § 1240.7(a); Bustos-Torres v. INS, 898
                 162.                                       F.2d 1053, 1055 (5th Cir. 1990). For
                                                            example, the BIA may (or may not) choose
        The other inconsistencies cited by                  to order forensic testing of the original
the IJ as evidence of incredibility are                     certificates (as proposed by the Lius), take
similarly ill-foun ded, tr ivial , o r                      additional testimony, seek guidance from
nonexistent.     Absent the one glaring                     State Department reports, or evaluate the
inconsistency regarding the baby’s gender                   efforts the Lius took in attempting to avail
(which may or may not be rendered less                      themselves of the regulatory certification
relevant in light of the consideration of                   procedure.
documentary evidence on remand), we do
                                                                  10
not think that substantial evidence supports                      Our disposition of this case renders
the finding that the Lius were not credible.                unnecessary any inquiry into the other two
                                                            arguments raised by the Lius on appeal.
          Finally, we note that remand is
                                                            However, we note that the due process
appropriate where, as here, we have made
                                                            attack on the affirmance without opinion
a legal determination (e.g., regarding
                                                            procedures has essentially been foreclosed
a d m i s s i b i l i t y o f e v i d e n ce ) t h at
                                                            by our en banc decision in Dia v. Ashcroft,
fundamentally upsets the balancing of
                                                            353 F.3d 228 (3d Cir. 2003). We also
facts and evidence upon which an agency’s
                                                            note, with respect to the claim that the BIA

                                                        8
failed to consider new evidence regarding
“changed circumstances” in China, that
while generally the “only vehicle for
introducing new evidence post-decision is
a motion to reopen,” Walters v. Ashcroft,
2003 U.S. Dist. LEXIS 19715 (S.D.N.Y.
November 3, 2003), the BIA may choose
to consider this evidence on remand, if it
deems such action appropriate.

                                             9
10
