                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-27-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2920




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                                                              NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                    __________

                                       No. 04-2920
                                       __________

                                     AI XUN JIANG,
                                                       Petitioner,
                                            vs.

                           Attorney General of the United States,
                                                        Respondent.
                                      __________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
          U.S. Department of Justice, Executive Office for Immigration Review
                                (BIA No. A78 726 602)
                                    and an Order of
                        Immigration Judge Donald V. Ferlise
                                      __________

                        Submitted Under Third Circuit L.A.R. 34.1(a)
                                    November 8, 2005
                                      ___________

                Before: ROTH, FUENTES, and GARTH, Circuit Judges

                                (Filed: December 27, 2005)


                                        __________

                                         OPINION
                                        __________
Garth, Circuit Judge:

      Ai Xun Jiang (“Jiang”) petitions for review of a decision of the Board of

                                            -1-
Immigration Appeals (“BIA”) affirming the denial by an Immigration Judge (“IJ”) of his

application for asylum, withholding of removal, and protection under the United Nations

Convention Against Torture (“CAT”). We will grant the Petition.

                                              I.

       Jiang is a native and citizen of the People’s Republic of China. He alleged that he

was fined, and his wife was forcibly sterilized, by government officials in 1990 after the

couple produced four children in violation of China’s one-child family planning policy.

       In 2000, after paying $55,000 to a snakehead – a sum which he had borrowed from

others – Jiang left China, and traveled to and entered Los Angeles without the proper

travel documents. After he filed an application for asylum,1 the INS2 charged him under 8

U.S.C. § 1227(a)(1)(A) and placed him in removal proceedings.

       In support of his asylum application, Jiang submitted documents that would have

substantially corroborated his claims: these documents included notarial birth certificates

for his four children, a receipt for the fine he was forced to pay for having four children,

and his wife’s “sterilization certificate.” Jiang also submitted letters documenting his


       1
        An alien whose spouse is forced to undergo a sterilization procedure can establish
past persecution on account of political opinion, and qualifies as a refugee under
immigration law. Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc).
       2
       As of March 2003, “the INS ceased to exist as an independent agency within the
United States Department of Justice [‘DOJ’] and its functions were transferred to the
newly formed United States Department of Homeland Security.” Leia v. Ashcroft, 393
F.3d 427, 430 n.4 (3d Cir. 2005). The BIA remains within the DOJ. Knapik v. Ashcroft,
384 F.3d 84, 86 n.2 (3d Cir. 2004) (citing Homeland Security Act of 2002, Pub. L. No.
107-296, §§ 441, 451, 471, 116 Stat. 2135 (2002)).

                                             -2-
attorney’s unsuccessful attempts to have similar documents from an unrelated case

authenticated by the U.S. Consulate General’s office in Guangzou and the Fujian

Province Foreign Affairs Office.

       At a February 26, 2002 hearing, Immigration Judge Donald V. Ferlise found that

the documents Jiang submitted had not been properly certified pursuant to 8 C.F.R. §

287.6.3 The IJ thus ruled that while he would “allow [the documents] to remain in the

record . . . [he would] not give them any weight.” The IJ did not acknowledge the letters

documenting Jiang’s attorney’s attempts to have similar documents certified.

       When Jiang began to testify at the hearing, he contradicted himself several times,4


       3
           That regulation provides, in pertinent part,

                § 287.6 Proof of official records.

                (b)(1) In any proceeding under this chapter, an official record
                or entry therein, when admissible for any purpose, shall be
                evidenced by an official publication thereof, or by a copy
                attested by an officer so authorized . . . The attested copy,
                with the additional foreign certificates if any, must be
                certified by an officer in the Foreign Service of the United
                States, stationed in the foreign country where the record is
                kept. This officer must certify the genuineness of the
                signature and the official position either of (i) the attesting
                officer; or (ii) any foreign officer whose certification of
                genuineness of signature and official position relates directly
                to the attestation or is in a chain of certificates of genuineness
                of signature and official position relating to the attestation.

8 C.F.R. § 287.6.
       4
         For example, Jiang stated that his wife had an IUD that state family planning
officials had inserted removed in 1995; when asked again when the IUD removal

                                               -3-
and exhibited a demeanor that the IJ found to be “excessively nervous,” at one point

actually “jumping up and down in the witness chair.” The IJ noted that “[t]he respondent

appears to be getting his dates mixed up,” and, on motion of Jiang’s attorney, continued

the hearing until January 24, 2003. The IJ advised Jiang:

              You’ll come back and you’ll see me the next time. I would
              suggest that you try not to be as nervous. If you have a
              continuing problem with your nerves, you might want to see a
              doctor about it. But the next time you come back, you’ll have
              to complete your case.


Jiang returned to immigration court on January 24, 2003 for a second hearing.

                                             II.

       After the January 24, 2003 hearing, the IJ found Jiang not credible and denied his

application. The IJ arrived at his adverse credibility determination because he found that

Jiang’s testimony at both his hearings was marked by confusion, inconsistencies and

implausibilities. In explaining the adverse credibility determination, the IJ noted that

Jiang did not present the court with any admissible evidence to corroborate his testimony.

       The IJ also held that even if he had found Jiang credible and believed that he

suffered persecution in the past, he would nevertheless deny Jiang’s application because



occurred, he said “1985,” but then corrected himself and settled on “1984.” Jiang also
stated that when his wife became pregnant for the second time the couple went to his
mother-in-law’s home to avoid detection by the government. He first stated that this
happened in September 1984, and then stated that it happened in September 1985.
Finally, Jiang became confused about the date on which he and his wife went to his
sister’s home so his wife could give birth to one of their children.

                                             -4-
“there has been a fundamental change in circumstances to the extent that the respondent

would no longer have a well-founded fear of persecution if he is returned to his country.”

The IJ apparently arrived at this conclusion based on two assumptions he made: (1) the

Chinese government would not persecute Jiang for his past flouting of the one-child

family planning policy because it had not done so in the ten years between his wife’s

forced sterilization and Jiang’s departure for Los Angeles, and (2) he could not be

constrained by the policy again, or punished for future disobedience of it, because his

wife had already been sterilized and so the couple could not have any more children

anyway.

       Further, Jiang stated in his I-589 application and at his hearing that if he is returned

to China he will be punished because he left the country with the help of smugglers. The

IJ held that this feared punishment, if it came to pass, would not be persecution within the

meaning of the Immigration and Nationality Act, but rather prosecution, against which

the Act does not protect.

       The BIA affirmed in a one-paragraph opinion. It found no clear error with the IJ’s

adverse credibility determination, or the fact that the IJ accorded Jiang’s documentary

evidence no evidentiary weight.5


       5
         The BIA did not address the IJ’s “changed circumstances” theory. It apparently
treated Jiang’s claim that he feared punishment for leaving China with the assistance of
smugglers as though it was offered only in support of Jiang’s claim under the CAT,
holding that “although the respondent may be subject to detention and fines for his use of
illegal alien smugglers and violating Chinese exit laws, he failed to establish that he will
more likely than not be tortured upon his return to China.”

                                             -5-
                                             III.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA

both adopts the findings of the IJ and discusses some of the bases for the IJ's decision, we

review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d

215, 222 (3d Cir. 2004).

       The Attorney General has discretion to grant asylum to any alien who qualifies as

a refugee. See 8 U.S.C. § 1158(b)(1)(A); Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d

Cir. 2003). For relevant purposes, a refugee is any alien who is unable or unwilling to

return to his country of nationality because of past persecution or a well-founded fear of

future persecution on account of political opinion. See 8 U.S.C. § 1101(a)(42)(A);

Lukwago, 329 F.3d at 167. An applicant who establishes that he or she has suffered past

persecution on account of political opinion “triggers a rebuttable presumption of a

well-founded fear of future persecution, as long as that fear is related to the past

persecution.” Lukwago, 329 F.3d at 174. An IJ may, however, exercise his or her

discretion to deny asylum to even an applicant who has established past persecution if, for

example, “[t]here has been a fundamental change in circumstances such that the applicant

no longer has a well-founded fear of persecution in the applicant's country of nationality.”

8 C.F.R. § 208.13(b)(1)(i)(A). The government has the burden of establishing changed

circumstances by a preponderance of the evidence. 8 C.F.R. § 208.13(b)(1)(ii).

       Whether an asylum applicant has established past persecution or fear of future

persecution is a factual determination that we analyze under a substantial evidence

                                              -6-
standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We must uphold the IJ's

factual findings if they are “supported by reasonable, substantial and probative evidence

on the record considered as a whole.” INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992).

“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

       An adverse credibility determination, too, is a finding of fact. Dia v. Ashcroft, 353

F.3d 228, 247 (3d Cir. 2003). It may be “based on inconsistent statements, contradictory

evidences, and inherently improbable testimony . . . in view of the background evidence

on country conditions.” Id. at 249 (quotations and citation omitted). “[M]inor

inconsistencies and minor admissions that reveal nothing about an asylum applicant's fear

for his safety,” however, “are not an adequate basis for an adverse credibility finding.

The discrepancies must involve the ‘heart of the asylum claim.’” Gao, 299 F.3d at 272

(quotations and citations omitted). “Where an IJ bases an adverse credibility

determination in part on ‘implausibility’ as the IJ did here, such a conclusion will be

properly grounded in the record only if it is made against the background of the general

country conditions.” Dia, 353 F.3d at 249.

                                             IV.

       We first address the IJ’s alternate conclusion: that even if Jiang had credibly

testified that he suffered persecution in the past, he would nevertheless not be entitled to

asylum because circumstances have changed in China. As noted above, the IJ based his

finding of changed circumstances on the fact that ten years expired between Jiang’s


                                             -7-
wife’s forced sterilization and Jiang’s departure from China during which he experienced

no persecution (which indicated the absence of a Chinese government inclination to

persecute for violation of the one-child family planning policy), and on the fact that

Jiang’s wife has already been sterilized (so Jiang could not logically fear future

persecution by sterilization of his wife).

       In In re Y-T-L, 23 I. & N. Dec. 601 (BIA 2003), the Board considered the asylum

application of a Chinese man whose wife had been forcibly sterilized seven years before

he left China, and who had not been persecuted during those seven years. The IJ had

denied asylum because he found that the government could rebut the presumption of a

well-founded fear of future persecution by establishing changed circumstances. The BIA

reversed, holding that neither the passage of time between sterilization and departure

from China nor the forced sterilization itself constituted changed circumstances.

Specifically, it stated

               We disagree with the Immigration Judge that the passage of
               time since the forced sterilization of the respondent’s wife,
               coupled with the lack of enforcement of coercive family
               planning measures during that period, constitutes a
               “fundamental change” in the respondent’s personal
               circumstances which . . . is sufficient to meet the Service’s
               burden under 8 C.F.R. [208.13(b)(1)(ii)]. The Immigration
               Judge’s conclusion fails to take into account the continuing
               nature of the persecution inflicted on the respondent and his
               wife. Moreover, the principal reason that the respondent and
               his wife no longer fear a coerced sterilization . . . is the fact
               that they have been rendered incapable of having children.
               Thus, the Immigration Judge’s rationale could lead to the
               anomalous result that the act of persecution itself would also
               constitute the change in circumstances that would result in the
               denial of asylum to persons such as the respondent. It is

                                              -8-
              highly unlikely that Congress contemplated such an
              interpretation when it deemed forced involuntary sterilization
              to be persecution on account of political opinion.


Id. at 605 (emphasis added). See also, e.g., Chen v. United Stated Department of Justice,

426 F.3d 104, 112 (2d Cir. 2005); Mohammed v. Gonzales, 400 F.3d 785, 799-800 (9th

Cir. 2005).

       We will reject Judge Ferlise’s conclusion under this clear language. If Jiang

credibly testified that his wife underwent a forced sterilization, he thus thereby fulfilled

his burden and was entitled to asylum without having to show an independent well-

founded fear of future persecution.

       The IJ found, however, that Jiang was not credible. We next examine whether that

finding was supported by substantial evidence.

                                              V.

       The IJ based his adverse credibility finding on confusion, inconsistencies and

implausibilities in Jiang’s testimony. That finding was clearly also informed, however,

by the absence of corroborating documents that the IJ was willing to admit into evidence.6




       6
         A finding of a failure of proof “is not a proper ground per se for an adverse
credibility determination,” Abdulai v. Ashcroft, 239 F. 3d 542, 551 n. 6 (3d Cir. 2001).
Such a failure of proof, however, often informs such a determination (or vice versa). See,
e.g., Liu v. Ashcroft, 372 F. 3d 529, 531-532 (3d Cir. 2004); Miah v. Ashcroft, 346 F.3d
434, 440 (3d Cir. 2003).

                                              -9-
       In the time since the IJ effectively excluded7 Jiang’s documentary evidence

because Jiang failed to certify it pursuant to 8 C.F.R. § 287.6 – and the BIA explicitly

affirmed that exclusion – we have held 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.” Liu v. Ashcroft, 372 F. 3d 529, 533 (3d Cir. 2004). See also Zhang v. Gonzales,

405 F. 3d 150, 155-156 (3d Cir. 2005); Leia v. Ashcroft, 393 F.3d 427, 433-435 (3d Cir.

2005). It was thus legal error for the IJ to exclude the documents merely because they

were not authenticated through the means outlined in 8 C.F.R. § 287.6. The IJ should

have given Jiang the opportunity to attempt to authenticate the documents in some other

fashion, see Liu, 372 F.3d at 534 n.9; Leia, 393 F. 3d at 435, and thereafter (if Jiang

succeeded) should have taken the documents he submitted into consideration.

       If on remand Jiang succeeds in authenticating his documents, the IJ must

determine whether, in light of the documents’ corroboration of significant parts of his

story, the confusion, inconsistencies and implausibilities in Jiang’s testimony are still

sufficient to support the adverse credibility determination. We recently noted that

              Remand . . . is appropriate in situations where . . . a court of
              appeals has made a legal determination (e.g., regarding the
              admissibility of evidence) that fundamentally upsets the
              balancing of facts and evidence upon which an agency’s
              decision is based. In such instances, we are obliged to
              remand to the agency to reconsider and reweigh the facts,
              rather than attempting to undertake that task for ourselves.


       7
        See Liu v. Ashcroft, 372 F. 3d 529, 532 n.3 (3d Cir. 2004) (“if a document is
admitted into evidence with the caveat that it will be given ‘no weight,’ that is tantamount
to an exclusion from evidence”).

                                             -10-
Leia, 393 F.3d at 435. See also Liu, 372 F.3d at 534 (citing INS v. Ventura, 537 U.S. 12,

17018 (2002)). We do note, however, that as a basis for an adverse credibility

determination, the confusion, inconsistencies and implausibilities that marked Jiang’s

testimony is relatively weak.

       For example, the IJ placed weight on the fact that Jiang’s testimony at his first

hearing was marked by confusion as to the dates of several material events (see footnote

5). The IJ adjourned the first hearing, however, because Jiang was so nervous that he

“appear[ed] to be getting his dates mixed up.” In February 2002, the IJ interpreted

Jiang’s confusion about dates as being a result of his nerves. We find it troubling that

Jiang’s confusion was ultimately considered an indicator of Jiang’s untruthfulness, and

used to justify denial of his application.

       Further, the IJ placed weight on the fact that Jiang stated at his first hearing that his

wife’s IUD was removed in July 1984, but stated at his second hearing that the IUD was

removed in July 1985. This misstatement should not render any other part of Jiang’s

testimony incredible, however; his second child was born on June 20, 1986 (more than

nine months after either July 1984 or July 1985). Neither does it go to the heart of

Jiang’s claim, as a mistake about the date of the forced sterilization might. See, e.g., Gao,

299 F.3d at 272. Jiang’s other misstatements that the IJ cited are similarly trivial.

       Moreover, the IJ improperly based some of his findings of implausibility on

speculation. For example, Jiang stated that because his wife gave birth to their second


                                             -11-
and third children in hiding, the state did not know about those children. When he and his

wife wanted to have a fourth child, they applied to the state for – and the state granted

them – permission to have what it thought would be a second (but what would actually be

a fourth) child. Jiang testified, however, that after that child was born, the state forcibly

sterilized Jiang’s wife anyway. The IJ stated that

              what [Jiang] would have me to believe is that involuntary
              sterilization is . . . the reward one faces for requesting and
              being granted permission to have a second child. The Court
              truly believes that in this instant case [Jiang’s] wife probably
              thought that four children was enough and she voluntarily
              submitted to the sterilization. His testimony about the
              involuntary sterilization is implausible.


There is no basis in the record for the IJ’s incredulity. In fact, the record contains explicit

support for Jiang’s story. For example, a document in the record entitled Fuzhou City’s

Enforcement of Fujian Province Family Planning Regulations includes Rule #11, which

provides that “[c]ouples belong[ing] to agricultural households have to undertake . . .

sterilization operation after having two children.” The IJ’s finding of implausibility was

thus not properly based in the record. See Dia, 353 F.3d at 249.8

                                              V.



       8
         We do not take account of other alleged inconsistencies, implausibilities and legal
problems with Jiang’s application that the government raises in its brief but that neither
the IJ nor the BIA addressed. “[A] ‘simple but fundamental rule of administrative law [is]
that a reviewing court, in dealing with a determination of judgment which an
administrative agency alone is authorized to make, must judge the propriety of such
action solely by the grounds invoked by the agency.’” Wang v. Attorney General, 423
F.3d 260, 270 (3d Cir. 2005) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

                                             -12-
      For the foregoing reasons, we will grant Jiang’s Petition for Review, vacate the

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

opinion.




                                           -13-
