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


6-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1953




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                   Case No: 06-1953

                                     YOUGZHAO LIU,
                                          Petitioner

                                                v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent



       On Petition for Review of Final Decision of the Board of Immigration Appeals
                                  BIA No. A95-872-608
                      Immigration Judge: Hon. Charles M. Honeyman


                        Submitted under Third Circuit LAR 34.1(a)
                                      June 7, 2007

                BEFORE: SMITH and GREENBERG, Circuit Judges, and
                            POLLAK,* District Judge

                                  (Filed: June 11, 2007)


                               OPINION OF THE COURT




SMITH, Circuit Judge.



   *
   Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
       Petitioner Yougzhao Liu, a citizen of the People’s Republic of China, seeks review

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

Judge’s (“IJ”) decision that Petitioner was ineligible for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”).* For the following reasons,

the Petition will be denied.

       Liu entered the United States in April 2002 without possessing or presenting any

valid entry document. In December 2002, Liu applied for political asylum, withholding

of removal, and withholding under the CAT. In January 2003, an Asylum Officer

interviewed Liu, who claimed that he feared persecution because of the enforcement of

China’s one-child family planning policy. Liu alleged that his wife underwent multiple

forced abortions, and that both he and his wife faced the possibility of sterilization upon

his return to China. The Asylum Office referred the case to an IJ in New York. Also in

January 2003, the Government initiated removal proceedings against Liu through a

Notice to Appear, which was served on Liu at the end of the month. Liu appeared before

the IJ in February 2003, where he conceded removabilty. The IJ in New York granted

Liu’s motion to change venue, transferring the removal proceeding to Philadelphia. On



   *
    The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2(b). The BIA exercised
jurisdiction under 8 C.F.R. § 1003.1(b). It appears that Liu appealed to the BIA only the
denial of his asylum application, and that his brief on this appeal is limited to that issue.
Our review, then, is limited to that issue only. See In re Surrick, 338 F.3d 224, 237 (3d
Cir. 2003); 8 U.S.C. § 1252(d). We do note that, because Liu does not satisfy the
standards for asylum eligibility, he cannot satisfy the more stringent standard for
withholding of removal. Janusiak v. INS, 947 F.2d 46, 47-48 (3d Cir. 1991).
                                              2
September 23, 2004, Liu’s hearing on his application was held in Philadelphia before a

new IJ. The IJ admitted several pieces of evidence, including the Notice of Removal,

Liu’s application, several documents Liu submitted, the Department of Homeland

Security’s Consular Investigation Report, and a State Department report. The IJ issued

his oral decision on September 23, 2004, denying Liu’s application for asylum,

withholding of removal, and relief under the CAT. The IJ ordered Liu’s removal to

China. The IJ concluded that Liu had failed to meet his burdens of proof and persuasion

of establishing asylum, withholding of removal, or past or future persecution in China.

On February 22, 2006, the BIA summarily affirmed the IJ’s decision, and ordered Liu

removed.

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

U.S.C. § 1252(a) and (d). This Court reviews final decisions of the BIA that are based on

factual findings to determine whether they are supported by substantial evidence. INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992); Lusingo v. Gonzales, 420 F.3d 193, 199 (3d

Cir. 2005). Because the BIA summarily affirmed the IJ’s decision, we review the IJ’s

findings of fact as conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B); Wang v. Gonzales, 405 F.3d 134,

138 (3d Cir. 2005).

       The IJ’s September 23, 2004 oral opinion sets forth the reasons why Liu’s petition

must be denied. Liu stated that he has a wife and one child, both of whom are still in

China. Liu said that his wife was forced to have an intrauterine device (“IUD”) implanted

                                            3
after the birth of their child, but eventually became pregnant again. Liu asserted that his

wife was forced to undergo an abortion and had another IUD implanted. Liu’s family

paid a private doctor to have this IUD removed, and his wife became pregnant again.

After this second allegedly coerced abortion, Liu stated that officials told both of them

that they faced sterilization if she became pregnant again. He alleged that his family was

fined by the local village committee for violating China’s family planning policy. Liu

testified that the first abortion certificate from the hospital is missing, but he did produce

a certificate for the second abortion. However, the Consular Report, prepared specifically

for Liu’s case, investigated the validity of this certificate by contacting the hospital that

allegedly produced it. The Lianjiang County Hospital stated that the certification seal on

Liu’s document did not match the shape of the seal actually used by the hospital.

       The DHS Consular Report also noted that only county-level officials in Fujian

Province had the authority to fine policy violators, while Liu’s fine receipts stated that

these fines were issued by the local village committee. The IJ stated that “[i]f the fine

receipts are not genuine, then it undermines the credibility of the claim overall.” The IJ

noted that “[t]here is evidence from the Government in this case as to defined law of

China, but there is no rebuttal evidence leading to a contrary conclusion in this Court’s

view that would be sufficient to rebut the adverse inferences triggered by the overseas

report [regarding the fines].”




                                               4
       Liu has not presented any evidence or argument that would compel us to

reasonably conclude that the IJ’s factual determinations were incorrect. The Consular

Report analyzed family planning regulations in Fujian province and concluded that

village committees have no authority to issue fines that would have led to the production

of the fine receipts Liu entered in the record. The IJ went so far as to state that “[i]f there

were objective evidence presented that village committees could indeed, and indeed do

issue a fine either on their own or in cooperation with high Government officials, or in

violation of formal Government policies, but, nevertheless, decisions have been made at

the local level, then it is very possible that this decision and the doubts that the Court has

about the respondent’s testimony, and ability to meet his burden of proof overall could

possibly have even been resolved in his favor.” The absence of such evidence, the

contrary evidence in the Consular Report, and the questionable abortion certificate

prevent this Court from concluding that the IJ erred in its factual determinations. We will

therefore deny, based on the record before us, 8 U.S.C. § 1252(b)(4)(A), Liu’s petition for

review.




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