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


2-20-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4434




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                                                                  NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 06-4434


                                 YI QING HUANG,

                                                     Petitioner

                                          v.

               ATTORNEY GENERAL OF THE UNITED STATES,

                                                     Respondent


                      On Petition for Review of an Order of
                        The Board of Immigration Appeals
                   Immigration Judge: Honorable Henry S. Dogin
                                (No. A97-950-010)


                     Submitted Under Third Circuit LAR 34.1(a)
                                 February 8, 2008

             Before: MCKEE, AMBRO and ALDISERT, Circuit Judges

                         (Opinion filed: February 20, 2008)




                                      OPINION


AMBRO, Circuit Judge

     Yi Qing Huang, a native and citizen of China, petitions for review of an order of
the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final

order of removal. For the reasons set forth below, we will deny the petition in part and

remand in part. As we write for the parties principally, our reference to facts is truncated.

                                              I

       Huang arrived in the United States in March 2004 without a valid entry document.

He conceded removability in subsequent proceedings before the IJ, but applied for

political asylum, withholding of removal, and relief under the Convention Against

Torture. Huang asserted that he would be persecuted if he returned to China because he

had violated strict Chinese family planning laws.

       The IJ held a hearing in January 2005. He concluded that Huang was not credible,

denied his application in all respects, and designated his application for asylum as

frivolous under 8 U.S.C. § 1158(d)(6). Such a designation makes Huang permanently

ineligible for asylum.

       Huang appealed to the BIA. It affirmed the opinion of the IJ, explicitly adopting

its reasoning.

       Huang timely petitioned for review to the United States Court of Appeals for the

Second Circuit, which transferred the case to our Court because the IJ proceedings were

completed in New Jersey. Huang argues that the IJ erred in finding him not credible and

in concluding that his application for asylum was frivolous.

                                             II



                                              2
       The BIA had jurisdiction over Huang’s appeal under 8 C.F.R. § 1003.1(b)(3). We

have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). We

generally review the decision of the BIA, but where, as here, the BIA adopts the opinion

of the IJ, we review the IJ’s decision directly. Voci v. Gonzales, 409 F.3d 607, 612-13

(3d Cir. 2005). We review credibility determinations for substantial evidence. He Chun

Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). “Under this deferential standard of

review, we must uphold the credibility determination of the BIA or IJ unless ‘any

reasonable adjudicator would be compelled to conclude to the contrary.’” Id. (quoting 8

U.S.C. § 1252(b)(4)(B)). However, we may reverse a credibility determination if it is not

grounded in the record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).

                                           III

       The IJ made a number of observations about the quality of the evidence and

testimony provided by Huang. First, he found implausible Huang’s testimony regarding

the alleged 1993 abortion. Huang testified that his wife, after giving birth to a child in

1990, was fitted with a contraceptive device by family planning authorities but had it

removed at a private clinic, resulting in a pregnancy. He also testified that, though his

wife knew that the device had been removed and had missed her period, she nonetheless

appeared for an examination by family planning authorities, resulting in an abortion. The

IJ found this version of events implausible, asking why Huang’s wife did not hide rather

than “put[] her head into the mouth of the lion.”



                                                 3
        Second, the IJ pointed to the investigation performed by an investigator for the

Department of Homeland Security (“DHS”) based at the consulate in Guangzhou, China.

That investigation indicated that the abortion certificate presented by Huang regarding the

alleged 1993 abortion was not issued by the hospital at which he claimed the abortion was

performed, but instead was fabricated.

       Third, the IJ noted that the DHS investigation also contradicted Huang’s testimony

regarding an alleged abortion in 2004 (terminating the alleged 2003 pregnancy). The

report of that investigation concluded that the abortion certificate and the assessment of a

fine paid to Chinese authorities submitted as evidence of an 2004 abortion were

fabricated.

       Finally, the IJ highlighted a discrepancy between Huang’s testimony at the

removal hearing and his statements at a credible-fear interview shortly after arriving in

the United States. This discrepancy pertained to the alleged pregnancy in 2003. The IJ

noted that Huang stated at the credible-fear interview that his wife fled only after hearing

a rumor that police were coming to arrest her, whereas he claimed at the IJ hearing that

she fled as soon as she knew she was pregnant.

       The IJ made an adverse credibility finding on the basis of these considerations.

Huang argues that this was error because (1) the DHS investigation was unreliable

inasmuch as it might reflect a desire of the Chinese government to harm those who apply

for asylum in the United States; (2) the discrepancies between Huang’s testimony at the



                                              4
credible-fear interview and at the IJ hearing likely are the result of a poor summary by the

asylum officer (who was not present for cross-examination) because Huang could not

have said that his wife waited until the police were coming before fleeing; and (3) that it

was not implausible for Huang’s wife to have gone to the 1993 appointment with Chinese

officials even though she had good reason to believe she was pregnant.

       Huang’s arguments are weakened by his failure to explain the discrepancies in his

testimony. He was given the opportunity by the IJ to reject the official summary of his

testimony at the credible-fear interview. However, when asked whether he had given the

summarized testimony at that interview, Huang merely stated “I do not recall.” At no

time did Huang explain the discrepancy between his testimony at the IJ hearing and the

credible-fear interview.

       Nor does Huang explain why no reasonable adjudicator could find implausible his

claim that his wife went to an appointment with the state authorities even after having

reason to believe she was pregnant. The implausibility of this alleged decision by

Huang’s wife may not have been enough alone to support an incredibility finding, but, in

the context of other inconsistencies and flaws in the evidence offered, the IJ was not

unreasonable to find the account far-fetched.

       The DHS investigation greatly undermines Huang’s credibility. Unlike the report

challenged in Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003), the report in this case

was created by a DHS investigator who had the ability to evaluate the credibility of the



                                             5
information she reported. Accordingly, the DHS report does not suffer from hearsay

problems sufficient to render it unreliable for evaluating credibility, and the IJ was correct

to consider it. That said, we are troubled by Huang’s suggestion that investigations into

Chinese hospital records are inherently untrustworthy because of animus on the part of

Chinese officials toward asylum seekers. However, he presents no evidence suggesting

that such animus was a factor in the investigation into his purported documentation. Nor

does he identify record evidence indicating that this is a prevalent problem, such as a

report from the State Department describing a tendency of Chinese hospital officials to

deny the validity of purported records of abortions.

       Accordingly, we conclude that a reasonable adjudicator could have made an

adverse credibility finding against Huang.1 Because we do not disturb the IJ’s adverse

credibility finding, we affirm the denial of asylum. We also affirm the denial of

withholding of removal because Huang necessarily fails to meet its more stringent

standard. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).2



       1
        The Government argues that many of the specific arguments made by Huang were
not presented to the BIA. This raises a close question, since the brief submitted by Huang
to the BIA appears to have been vague boilerplate intended to preserve as many
arguments as possible for a review petition to our Court. This brief may not have put the
BIA sufficiently on notice about Huang’s specific arguments to exhaust each of those
contentions. However, we need not decide that question because at least some of
Huang’s arguments are properly before us and we would deny his petition for review
even assuming that we may consider all of these arguments.
       2
        Huang does not argue that the BIA erred in upholding the IJ’s decision to deny
relief under the Convention Against Torture.

                                              6
                                             IV

       Huang asserts that the IJ erred in concluding that his asylum application was

frivolous. The Government claims that we lack jurisdiction over this question because

Huang did not raise it before the BIA. However, he did argue that the IJ’s adverse

credibility finding and resulting denial of asylum were incorrect. These claims implicitly

challenge the IJ’s finding that Huang’s asylum application was frivolous. They were an

“effort, however insufficient, to place the Board on notice of a straightforward issue

being raised on appeal.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005) (citing

Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004)); see also Zara v. Ashcroft, 383

F.3d 927, 931 (9th Cir. 2004) (finding exhaustion where petitioner gave the BIA “the

opportunity to resolve [the] controversy or correct its own errors before judicial

intervention”). Therefore, Huang sufficiently exhausted this claim.

       We recently discussed the high standard for a frivolousness conclusion in Luciana

v. Attorney General, 502 F.3d 273, 281 (3d Cir. 2007). In light of that precedent, we

solicited additional briefing from the parties. The Government requested that the BIA

have the first opportunity to evaluate this case under Luciana if we concluded that we

have jurisdiction over the frivolousness challenge. We will defer to that request.

                                       *****

       We deny in part the petition for review, and remand in part for consideration of the

frivolousness finding under Luciana. This panel retains jurisdiction pending BIA review



                                             7
of that finding.




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