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


7-10-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1945




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 06-1945




                       SHI XIONG LI a/k/a Zhong Min Chen;
                              ZHOU JIANG CHEN,

                                                Petitioners

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                               Respondent




                        On Petition for Review of a Decision
                        of the Board of Immigration Appeals
                       (BIA Nos. A72-483-967, A72-483-969)
                          Immigration Judge: R.K. Malloy


                      Submitted under Third Circuit LAR 34.1(a)
                                   May 22, 2007

          BEFORE: BARRY, CHAGARES, and TASHIMA,* Circuit Judges

                                (Filed: July 10, 2007)


                                     OPINION


  *
    The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
CHAGARES, Circuit Judge.

       Shi Xiong Li and Zhou Jiang Chen are a married couple from China. They

petition for review of a final order of the Board of Immigration Appeals (“BIA”)

affirming the decision of an Immigration Judge (“IJ”) denying them asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). Because we

conclude that the IJ’s decision is supported by substantial evidence, we will deny the

petition for review.

                                              I.

       We write only for the parties and we assume their familiarity with the record.

Petitioners testified to the IJ that they left China after Chen was forced by Chinese

officials to abort her second pregnancy in compliance with that country’s family planning

policies. Since their arrival in the United States, petitioners have had their second child,

and they testified that they plan to have more children. They both stated that they fear

sterilization if they return to China.

       The IJ denied petitioners’ applications for asylum, withholding of removal, and

relief under CAT for two reasons. First, in an airport interview upon entry into this

country, petitioners mentioned neither their fear of sterilization nor the past abortion, and

therefore, the IJ found petitioners not credible. Second, petitioners could not corroborate

that Chen had had an abortion. The IJ would have accepted records noting the medical

                                            -2-
history Chen provided when she went to a Pennsylvania hospital for prenatal care in

connection with her third pregnancy. The IJ explained that “when a pregnant woman

presents herself to a hospital, a reputable hospital certainly takes a gynecological history,

specifically noting previous pregnancies.” AR 53. Petitioners failed to provide

satisfactory records, which presumably were reasonably available, and the IJ denied

relief.

          The BIA issued a brief order in which it described the IJ’s adverse credibility

finding, and then stated that the BIA affirmed for the reasons set forth by the IJ.1

                                               II.

          Our review of a BIA order is deferential. “If a reasonable fact finder could make a

particular finding on the administrative record, then the finding is supported by

substantial evidence” and we will affirm. See Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.

2003). We will reverse only if we conclude that the record “compels” that we do so. INS

v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (emphasis removed). Finally, we review

the IJ’s opinion to the extent the BIA adopted it. See Miah v. Ashcroft, 346 F.3d 434,

   1
    The BIA order provided:
        The Immigration Judge denied the applicants’ asylum application on the
      basis of an adverse credibility finding. The Immigration Judge found the
      applicants’ testimony to be inconsistent with the statements they had made
      upon arrival in the United States. We are not persuaded by the applicants’
      explanations.
        Accordingly, the Immigration Judge’s decision is affirmed for the reasons
      stated therein and the appeal is dismissed.
AR 2 (internal citations omitted).


                                              -3-
439 (3d Cir. 2003); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).

       Here, the IJ analyzed credibility separately from the failure to corroborate and

denied petitioners’ applications for both reasons. See Toure v. Attorney Gen. of U.S.,

443 F.3d 310, 323 (3d Cir. 2006) (“Corroboration and credibility, although intuitively

related, are distinct concepts that should be analyzed independently.”). Because the

BIA’s affirmance relied only on the adverse credibility finding, that finding should be the

focus of our review on appeal. But petitioners do not challenge it. Instead, they argue

that the IJ improperly rested her decision on the lack of evidence corroborating

petitioners’ claim that Chen had had an abortion. Pet. Br. 12. Although the BIA did not

specifically mention this aspect of the IJ’s opinion in its affirming order, we address this

argument out of an abundance of caution as it is possible that the lack of corroboration

influenced the BIA’s decision to affirm the IJ’s credibility determination.

       The BIA has determined that “where it is reasonable to expect corroborating

evidence for certain alleged facts pertaining to the specifics of an applicant’s claim, such

evidence should be provided.” In re S-M-J-, 21 I. & N. Dec. 722, 725 (BIA 1997). We

have described this rule as requiring three tasks of the IJ:

          (1) an identification of the facts for which “it is reasonable to expect
          corroboration;” (2) an inquiry as to whether the applicant has provided
          information corroborating the relevant facts; and, if he or she has not, (3)
          an analysis of whether the applicant has adequately explained his or her
          failure to do so.

Abdulai, 239 F.3d at 554.



                                             -4-
       In this case, the IJ satisfied her obligation. The IJ explained to petitioners (and

their counsel) that, because their claim for asylum was based on a forced abortion in

China, and because petitioners could not provide authenticated Chinese records of the

abortion, the IJ would accept medical records from a Philadelphia hospital that included

Chen’s gynecological history. At a hearing on August 27, 2002, petitioners’ counsel

informed the IJ that she was attempting to obtain the medical records. The IJ indicated

the significance of these records to petitioners’ claims. She then continued the hearing

multiple times to allow petitioners’ counsel time to obtain the records.

       After much delay, petitioners’ counsel obtained a copy of a record that was

supposed to contain notes from Chen’s prenatal-care visit at a Philadelphia hospital and

submitted it to the court in September of 2004. The IJ observed that the word “abortion”

and a date appeared on the record, as did notations regarding two births by cesarean

section. Chen had her second cesarean section when she gave birth in the United States

and therefore the notation regarding two cesarean sections could not have been created

contemporaneously with Chen’s first arrival at the hospital weeks prior to delivery. In

addition, the record appeared to be altered, with some text looking like it was

“overwritten.” AR 172. Petitioners’ counsel conceded that the key information in the

record appeared to be written after the record was initially created.

       Petitioners do not dispute that the IJ was entitled to conclude that the submitted

record was altered and unreliable. Rather, they seem to argue only that it was



                                             -5-
unreasonable for the IJ to request corroboration for the abortion because their testimony

was otherwise credible and corroborated.

       We have previously held “that the BIA may sometimes require otherwise-credible

applicants to supply corroborating evidence in order to meet their burden of proof.” See

Abdulai, 239 F.3d at 554. Even when an IJ fails “to make a valid credibility

determination,” we will not reverse or remand the BIA’s order affirming the IJ if

“reasonable requests for corroboration were inexplicably unmet.” See Obale v. Attorney

Gen. of the U.S., 453 F.3d 151, 163 (3d Cir. 2006). Thus, even assuming petitioners were

otherwise credible, it could be proper for the IJ to request corroboration. It does no good

for petitioners to argue, as they do, that because petitioners “corroborate[d] several

aspects of [Chen’s] testimony, including the circumstances surrounding her early

marriage and pregnancy,” the IJ incorrectly requested corroboration of the abortion. Br.

12. Corroboration of these facts is irrelevant. The IJ identified the fact of the abortion to

be crucial to the asylum application. Despite having numerous opportunities, petitioners

did not explain why that fact could not be corroborated through a local hospital’s

preexisting records of medical history as a general matter or what special circumstances

prevented petitioners from providing such corroboration as a specific matter.

Accordingly, the IJ’s request for corroboration and reliance on the lack thereof was not

inappropriate.

       More importantly, substantial evidence supports the IJ’s adverse credibility



                                             -6-
finding, and the BIA’s affirmance on that ground. Petitioners’ testimony before the IJ

differed dramatically from statements they made in airport interviews. Although “we

have counseled against placing too much weight on an airport interview,” we have also

acknowledged that “where the discrepancies between an airport interview and the alien’s

testimony ‘go to the heart of the claim,’ they certainly support an adverse credibility

determination.” Chen v. Ashcroft, 376 F.3d 215, 223-24 (3d Cir. 2004). In this case,

petitioners said at the airport that they came to the United States for economic and

quality-of-life reasons. They failed to tell the asylum officer about two events that were

key parts of their testimony before the IJ: Chen’s forced abortion and Li’s altercation

with child planning officials. These failures go to the heart of petitioners’ claims.

Moreover, petitioners do not claim the airport interview was conducted in a frightening or

confusing way, or that the statements made then were inherently unreliable for other

reasons. Accordingly, we conclude substantial evidence supports the IJ’s adverse

credibility finding.

                                             III.

       For the foregoing reasons, we will deny the petition.




                                             -7-
